Jagannath Gupta vs State Of U.P.
2024 Latest Caselaw 21397 ALL

Allahabad High Court

Jagannath Gupta vs State Of U.P. on 1 July, 2024

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:105824
 
Court No. - 64
 

 
Case :- CRIMINAL APPEAL No. - 11646 of 2023
 

 
Appellant :- Jagannath Gupta
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Punit Khare,Shard Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Rajeev Misra,J.
 

(Order on Application for Suspension of Sentence)

1. Heard Mr. Rakesh Pandey, the learned Senior Counsel assisted by Mr. Tej Bahadur Rai, the learned counsel for applicant-appellant and the learned A.G.A. for State.

2. Perused the record.

3. Feeling aggrieved by the judgment and order dated 19.09.2023 passed by Additional Sessions Judge/Special Judge (P.C. Act), Special Court No.-1, Varanasi in Special Sessions Trial No. 8 of 2001 (State Vs. Ram Ashish Rai and Another) arising out of Case Crime No. 1264 of 1990, under Sections 409, 419, 420, 467, 468, 471, 120-B IPC and Sections 7/13 Prevention of Corruption Act, Police Station-Kotwali, District-Ballia, whereby and whereunder, applicant-appellant has been convicted, under Section 467 IPC and consequently sentenced to 7 years imprisonment along with fine of Rs. 25,000/- and in case of default in payment of fine, applicant-appellant is to undergo 2 months additional imprisonment, under Section 468 IPC and consequently sentenced sentenced to 7 years imprisonment along with fine of Rs. 25,000/- and in case of default in payment of fine, applicant-appellant is to undergo 2 months additional imprisonment and under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and consequently sentenced sentenced to 4 years imprisonment along with fine of Rs. 10,000/- and in case of default in payment of fine, applicant-appellant is to undergo 1 month additional imprisonment, applicant-appellant has approached this court by means of present criminal appeal.

4. Since subsequent to the above-mentioned judgment and order dated 19.09.2023, applicant-apellant was taken into custody and is undergoing incarceration, therefore, applicant-appellant has filed above-mentioned application under Section 389(1) Cr.P.C. seeking suspension of sentence/enlargement on bail during the pendency of appeal.

5. Mr. Rakesh Pandey, the learned Senior Counsel for applicant-appellant contends that conviction awarded by Court below against applicant-appellant cannot be sustained. He has invited the attention of Court to the recital occurring at page 40 of the paper book and on basis thereof, he contends that in view of the findings returned by Court below itself, the conviction of applicant-appellant cannot be sustained. He further submits that once Court below has recorded a categorical finding that there is no evidence on record to show that applicant-appellant has misappropriated or embezzled public money, the conviction of applicant-appellant under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act cannot be sustained. He further submits that Court below, on the basis of the report of Hand Writing Expert, has opined that the signature occurring from S1 to S4 are similar to the admitted signature i.e. !-151. However, referring to the provisions of Evidence Act, he submits that the opinion of Hand Writing Expert is simply an opinion and an aid to the Court. However, the Court has itself not examined the issue and not returned a finding based upon perusal of record. In the present case, Court below has thus not returned any finding but has simply drawn a bald conclusion on the basis of the report of Hand Writing Expert. On the cumulative strength of above, he submits that there is nothing on record to show that there was a demand made by the applicant-appellant for illegal money nor there is any evidence to show that applicant-appellant has benefited by gaining illegal gain. It is thus urged that the conclusion drawn by Court below that signatures occurring on S1 to S4 are meaningless as not as no person can commit motiveless criminal act. As the conviction of applicant-appellant cannot be sustained and therefore, is liable to be set aside by this Court.

6. It is then contended that applicant-appellant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant-appellant is in jail since 19.09.2023. As such, he has undergone more than 9 and 1/2 months of incarceration. There is no likelihood of the appeal being heard in near future on account of heavy pendency of appeals before this Court. The maximum sentence awarded to applicant-appellant by Court below is 7 years as all the sentences are to run concurrently. He, therefore, submits that applicant-appellant is liable to be enlarged on bail. In case, the applicant-appellant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal.

7. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant-appellant is a convicted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual/legal submissions urged by the learned Senior Counsel for applicant-appellant with reference to the record at this stage.

8. Having heard, Mr. Rakesh Pandey, the learned Senior Counsel assisted by Mr. Tej Bahadur Rai, the learned counsel for applicant-appellant and the learned A.G.A. for State and upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that the only finding, which has been returned by Court below is to the effect that the disputed signature on S1 to S4 tally with the admitted signature i.e. Q151, however, the said finding returned by Court below is only on the basis of opinion given by the Hand Writing Expert without the Court itself taking any exercise even when it is said that the Court is expert of experts; apart from above, the Court below has also returned a finding that except for above, there is no evidence on record to show that applicant-appellant has either benefited by illegal gratification or misappropriation of public money; in view of above, the first finding returned by Court below appears not only to be erroneous as there could not be any act on the part of applicant-appellant devoid of illegal gain; the clean antecedents of applicant-appellant; the period of incarceration undergone; the applicant-appellant was on bail during the pendency of trial, there is no likelihood of the appeal being heard in near future on account of heavy pendency of appeals before this Court; therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the prayer for bail; but without making any comment on the merits of appeal, applicant-appellant has made out a case for bail.

9. Accordingly, the application under Section 389(1) Cr.P.C. is allowed.

10. Let the appellant-appellant-Jagannath Gupta, be released on bail in Case Crime No. 1264 of 1990, under Sections 409, 419, 420, 467, 468, 471, 120-B IPC and Sections 7/13 Prevention of Corruption Act, Police Station-Kotwali, District-Ballia on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.

11. It is, however, provided that the amount of fine awarded by court below shall be deposited by applicant-appellant with the Court below within a period of 1 month from today failing which, the bail granted to applicant-appellant shall stand canceled and he shall be taken into custody at once to serve out the sentence awarded by Court below.

Order Date :- 1.7.2024

Vinay