* THE HIGH COURT OF DELHI AT NEW DELHI
+CRL.M.B.No.2134/2011 in Crl.Appeal No. 1300/2011
Reserved on : 18.01.2012
Pronounced on :27.01.2012
VIJAY B. BORAR ...... Appellant
Through: Mr.Sidharth Luthra, Sr.
Advocate with Mr. Ashok
Chhaparia, Advocate.
Versus
THE STATE (THROUGH CBI) ...... Respondent
Through: Mr. P.K.Sharma, Standing
Counsel for CBI.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
Crl. M.B. NO. 2134/2011 (under section 389 Cr.P.C. for suspension of sentence)
1. The appellant was convicted and sentenced to RI of one year and fine of Rs. 50,000/- under section 120-B IPC read with section 420 IPC and Section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act and RI of 4 years and fine of Rs. 5,00,000/- under section 420 IPC. Present application is filed for suspension of sentence during the pendency of the appeal. The appellant /convict is in JC since 02.09.2011. The main grounds Crl.M.B. 2134.2011 in Crl. Appeal No. 1300/2011 Page 1 of 6 on which suspension of sentence is sought are that the appellant is a Chartered Accountant by profession and has been practicing since 1972 and further that he was exonerated by the Council of Chartered Accountants of India in the complaint lodged against him by the State Bank of Saurashtra. It was also submitted that he has not obtained any pecuniary benefits in the case. It was also sought to be presented that he is aged about 63 years and is a heart patient having undergone heart surgery in 2006 and in addition continuing medical treatment, he is suffering from sugar and B.P. problems. It was also submitted that during trial the appellant remained on bail and did not misuse the liberty granted to him.
2. Per contra, the learned Standing Counsel for the CBI strongly opposed the suspension of sentence of the appellant.
3. The appellant was one of the co-accused in the CBI case. The allegations against the accused persons are that they entered into a criminal conspiracy among themselves and cheated State Bank of Saurashtra to the extent of more than Rs.60.00 lakh by abuse of official position of accused/ public servant A.K. Mishra who was the Branch Manager of the said bank.
4. As per the charge-sheet, accused R.P. Mathur and his wife Anita Mathur maintained accounts with the bank in the names of their firm Radhika Leather Fashions since 07.06.1991 and Ruchi Fashions since Crl.M.B. 2134.2011 in Crl. Appeal No. 1300/2011 Page 2 of 6 31.05.1991 and amounts of Rs.46.00 lakh and 90.00 lakh were outstanding on these accounts since 1993 and 1992 respectively due to purchase of false bills by the bank in both of these accounts. To make the payment of the outstanding amounts, the accused persons made a plan under which accused Brij Mohan Bhatnagar, an employee of accused R.P. Mathur opened an account in the name of M/s Kay Bee & Co. on 29.03.1994 wherein a cheque dated 30.01.1994 for Rs. 60,27,840/-, issued by the petitioner as Director of M/s Swastik Consultants Pvt. Ltd. and without any business transaction, was deposited and the same was purchased by the accused A.K. Mishra, the branch Manager of the bank without any authorization from the bank. He granted proceeds in the account of M/s. Kay Bee & Co. on 31.03.1994. The said cheque was received back unpaid when it was sent for collection to the drawer's bank due to "insufficient funds". Another cheque of Rs. 54,60,000/- was also deposited in the same account by accused R.P. Mathur on 31.03.1994 and after purchasing this cheque also the proceedings were granted to the account of Kay Bee & Co. on 31.03.1994. A.K. Mishra purchased the said cheque, though, he had no powers to purchase the cheque beyond the value of Rs.50,000/-. Accused Brij Mohan Bhatnagar, as proprietor of M/s Kay Bee & Co; issued a cheque for Rs. 47,25,000/- in favour of M/s Radhika Leather Fashions which was granted on 31.03.1994 and also issued two cheques for Rs.20.00 lakh each and amount of Rs.40.00 Crl.M.B. 2134.2011 in Crl. Appeal No. 1300/2011 Page 3 of 6 lakh was deposited in the account of M/s Radhika Leather Fashions on 31.03.1994. Brij Mohan Bhatnagar also issued further cheque for Rs. 26,75,000/- on 31.03.1994 in favour of Ruchi Fashions which was also granted on the same day. Ruchi Fashions was sanctioned bill purchase limit by zonal office of State Bank of Saurashtra on 07.09.1992 under which though the bogus bills amounting to Rs.19,15,540/- were purchased between June 1992 to December 1992 and the proceedings were granted in the account of Ruchi Fashions.
5. The pleas that were taken by the appellant herein was that in the complaint filed by the Institute of Chartered Accountant of India, he has been exonerated by the Council and that the cheque of Rs.60,00 lakh dated 31.03.1994 was stolen from his office. The plea regarding that he was exonerated by the Council has been dealt with by the learned ASJ and he has rightly held that the same would not amount to termination of criminal proceedings against the appellant given the fact that the appellant had taken different stands at different places with regard to his plea of the cheque having been stolen. It was specifically noted that in his statement made before the Court under section 313 Cr.P.C. he had stated that he came to know about the missing of the cheque when he received the notice from the Central Bureau of Investigation whereas his stand before the Institute was that this fact remained un-noticed till he received recovery notice from the Crl.M.B. 2134.2011 in Crl. Appeal No. 1300/2011 Page 4 of 6 bank dated 11th August 1994. The First Information Report was registered against him in December 1995 and so the investigation could not be commenced prior to that and that being so, his plea regarding the cheque was stolen was, apparently, not believable.
6. It is admitted case that R.P. Mathur was frequent visitors to his office. That would prima facie show he is having good connection with him. The fact that the appellant did not name R.P. Mathur before the Council as also before the DRT proceedings as the one who stolen the said cheque would also prima facie point finger towards his involvement in seeking to take precaution to protect the interest of R.P. Mathur.
7. The appellant was not a layman but was professionally qualified Chartered Accountant and was expected to know all the commercial transactions. It was, apparently, unbelievable that he would have left the said cheque blank and would not bother to see for several months. Though, it is not desirable to make comments on the merits of the case, but, having gone through the impugned judgment I do not see apparently any ground to arrived at a conclusion that the appellant was innocent and was entitled to be absolved. On the other hand, prima facie he seems to be a part and parcel of the conspiracy of the commission of the offence.
Crl.M.B. 2134.2011 in Crl. Appeal No. 1300/2011 Page 5 of 6
8. With regard to the plea that he required some medical treatment, it may be stated that his medical treatment can be suitable taken care of by the authorities of the jail administration.
9. No sufficient ground has been made out for suspension of sentence under these circumstances.
10. In view of my above discussion and having regard to grave and serious nature of the offence the period of sentence of the appellant cannot be suspended. The application is hereby dismissed.
M.L. MEHTA (JUDGE) January 27, 2012 awanish Crl.M.B. 2134.2011 in Crl. Appeal No. 1300/2011 Page 6 of 6