#R-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13.08.2015
+ CRL. APPEAL 131/2015
AJIT R. KYAL ..... Appellant
Through: Mr. Y. Das, Sr. Advocate with Mr. A.
Vaish, Mr. A. Patnaik, Mr. D.B. Ray,
Mr. Mark Wright and Mr. Ranjit,
Advocates
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Sanskriti Jain, Advocates CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL SIDDHARTH MRIDUL, J (ORAL) CRL.M.(BAIL) No. 7048/2015
1. The present is an application under Section 389 of the Code of Criminal Procedure, 1973, (for short, 'the Cr. P.C.') praying for suspension of sentence imposed on the appellant/applicant during the pendency of the appeal.
2. The appeal filed on behalf of the applicant herein challenging his conviction and sentence under Sections 13(1)(d) and 13(2) of the Prevention CRL. Appeal 131/2015 Page 1 of 6 of Corruption Act, 1988 read with Sections 120B/420 IPC was placed on Board for hearing by this Court by way of an order dated 26th February, 2015. This Court while listing the said appeal had also granted liberty to the appellant to press his application for suspension of sentence in the event the appeal is not heard for any reason. Since that time, the appeal itself has been listed for hearing but has been adjourned for a variety of reasons.
3. On the 6th of August, 2015, this Court recorded the following order:-
"The learned counsel appearing on behalf of the CBI states that Mr Vivek Sinha, who was convicted along with the present appellants, is absconding and has not been available before the trial court for imposition of sentence.
Since the prime accused who was convicted along with the present appellants is absconding and has not made himself available for sentencing, it would not be appropriate to hear these appeals in the absence of an appeal that may be instituted by Mr Vivek Sinha. Further this court is currently hearing appeals preferred much earlier than the present one which was instituted only in this calendar year.
List in due course."
4. On a specific query, Ms. Rajdipa Behura, learned SPP appearing on behalf of the CBI states that the co-convict Vivek Sinha who is currently in the United States has yet not been apprehended by the authorities to be produced before the trial Court for sentencing. CRL. Appeal 131/2015 Page 2 of 6
5. In view of the above, it is evident that the appeal filed on behalf of the applicant cannot be heard and disposed of in the near future.
6. Apart from this, this Court is currently hearing appeals filed in the year 2008 while the present appeal was instituted only in this calendar year.
7. In the decision of the Supreme Court in the case of Kashmira Singh vs. State of Punjab reported as AIR 1977 SC 2147, which was followed in Babu Singh and Ors. vs. State of U.P. reported as AIR 1978 SC 527, it was observed that so long as the Supreme Court is not in a position to hear the appeal of an accused within a reasonable period of time, it would ordinarily unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.
8. In the present case, the statutory appeal preferred on behalf of the applicant challenging his conviction and sentence has already been admitted. As aforesaid, there is no possibility of the appeal being heard within a reasonable period of time.
9. Ms. Behura, learned SPP appearing on behalf of the CBI however states that there are reasons as to why the sentence imposed on the applicant ought not to be suspended. Ms. Behura would urge that the present is a case CRL. Appeal 131/2015 Page 3 of 6 under the Prevention of Corruption Act, 1988 and consequently, the sentence imposed on the applicant should not be suspended as the applicant does not deserve to be released on bail during the pendency of the appeal.
10. The charge against the applicant is that he entered into a conspiracy with Mr. Vivek Sinha, the prime accused in the subject case to defraud the complainant bank i.e. Bank of India to the tune of Rs. 2.59 crores approximately thereby causing wrongful loss to the bank.
11. The applicant is convicted of having provided to the prime accused Vivek Sinha the subject cheques which were presented by the latter for discounting before the complainant bank.
12. In the instant case, it is observed that the applicant was on bail throughout the trial and had never misused the concession granted to him.
13. It is further observed that the applicant was released on parole by this Court from 29th May, 2015 and he surrendered before the jail authorities before the expiry of the period of parole.
14. Mr. Y. Das, learned senior counsel appearing on behalf of the applicant has invited my attention to the circumstance as recorded in the impugned judgment dated 19.01.2015 that Mr. Vivek Sinha, the prime accused and the co-convict of the applicant has already reimbursed the CRL. Appeal 131/2015 Page 4 of 6 complainant bank to the extent of overdraft extended to him in terms of a settlement entered into between the parties.
15. It is also observed that it has not been urged that there is a possibility that the applicant will flee from justice. It is further observed that the appeal is not likely to be heard within a reasonable period of time.
16. It is relevant to mention here that the fine imposed by the trial Court on the applicant has already been deposited before the trial Court.
17. In view of the foregoing facts and circumstances, it would be just necessary and expedient to suspend the sentence imposed on the applicant during the pendency of the appeal on the following terms:-
(i) the applicant shall furnish a personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the trial Court;
(ii) the applicant shall not leave the country without the prior permission of this Court;
(iii) the applicant shall surrender his passport, if not already surrendered;
(iv) the applicant shall attend each and every hearing of the Court as and when the appeal is called out; and
(v) the applicant shall also inform this Court of any change in his residential address.
CRL. Appeal 131/2015 Page 5 of 6
18. With the above said directions, the application is disposed of. CRL. APPEAL 131/2015
19. List the appeal in due course as per its own turn.
20. Copy of this order be given dasti to counsel for the applicant under signature of the Court Master.
SIDDHARTH MRIDUL, J AUGUST 13, 2015/sd CRL. Appeal 131/2015 Page 6 of 6