Bombay High Court

Mohan Arjun Keswani vs The State Of Maharashtra on 10 August, 2021

Bench: Prakash Deu Naik

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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION


                                   INTERIM APPLICATION NO.1542 OF 2021
                                                   IN
                                     CRIMINAL APPEAL NO.489 OF 2020


                        Mohan Arjun Keswani                      .. Applicant/ Appellant
                                 Versus
                        State of Maharashtra                     .. Respondent

                                                      ......
                        Mr.Dilip B. Shinde i/b. M/s.Deepak Paikrao & Associates,
                        Advocate for the Applicant/Appellant.

                        Mr.R.M. Pethe, APP for the Respondent - State.
                                                      ......

                                                     CORAM : PRAKASH D. NAIK, J.

DATED : AUGUST 10, 2021.

P.C. :

This is an application for suspension of sentence of

imprisonment imposed vide judgment and order dated 10 th

December, 2020, passed by the Special Judge Kolhapur in M.P.I.D.

Case No.1 of 2013.

2 The applicant is convicted for the ofence punishable

Digitally under Section 420 read with 34 of Indian Penal Code (IPC", for signed by RAJESHRI RAJESHRI PRAKASH PRAKASH AHER short) and sentenced to undergo rigorous imprisonment for seven AHER Date:

2021.08.21 10:57:49 +0530 rpa 2/10 12 ia 1542 2021.doc

years and to pay fne of Rs.5,000/-. He is also convicted for the

ofence punishable under Section 120-B of IPC, and, sentenced to

undergo rigorous imprisonment for 7 years and to pay fne of

Rs.5,000/-. He is further convicted for the ofence punishable

under Section 3 of M.P.I.D. Act, and, sentenced to undergo

rigorous imprisonment for six years with fne of Rs.1,00,000/-.

He is also convicted for ofence under Sections 4 and 5 of the

Prize Chits and Money Circulation Schemes (Banning) Act, and,

sentenced to sufer rigorous imprisonment for three years and

two years, respectively, and, to pay fne of Rs.5,000/-, in default of

payment of fne, to undergo simple imprisonment for three

months. All the sentences were run concurrently.

3 This is second application for suspension of sentence.

The previous application was rejected by the Division Bench of

this Court vide order dated 22nd December, 2020. The Appeal

challenging the same judgment preferred by accused no.3

Bhupsing Surgyansing viz. Criminal Appeal No.125 of 2021, was

listed before learned Single Judge and the said Appeal was

admitted on 11th February, 2021. The application for suspension

of sentence and bail was also heard on the same day and the said

application was allowed. While allowing said application, it was

observed that, the applicant therein was on bail pending trial. He rpa 3/10 12 ia 1542 2021.doc

has not misused liberty granted to him. He has deposited the fne

amount. The sentence awarded is short term sentence.

Thereafter, the co-accused Anand Shivram Tambe (accused no.2)

who has been convicted and sentenced alongwith the applicant

had preferred application for suspension of sentence and grant of

bail. The said application was listed before the Single Judge of

this Court. The application was allowed vide order dated 7th May,

2021, and, the sentence of imprisonment was suspended and the

applicant therein was directed to be released on bail. Learned

Single Judge has noted that the said applicant was on bail during

the trial and he has not misused the liberty granted to him. He

has deposited the fne amount awarded by the Court. The

sentence awarded is a short sentence. It is pertinent to note that

the present applicant and the co-accused were convicted and

sentenced for the same ofences.

4 Learned advocate for the applicant contended that in

view of change in circumstances, that the accused no.2 Anand

Shivram Tambe and accused no.3 Bhupsingh Surgayansing were

granted bail by single Judge of this Court by suspending sentence

of imprisonment. The applicant has preferred this application for

suspension of sentence and grant of bail. The other convicted rpa 4/10 12 ia 1542 2021.doc

accused are at liberty. It is contended that the Appeal preferred

by the applicant and the application for suspension of sentence

was wrongly circulated before the Division Bench. The applicant

has deposited fne amount of Rs.1,21,000/-. The Appeal would not

be listed for hearing shortly. The other accused were granted bail,

after rejection of application for suspension and grant of bail

preferred by applicant was rejected. The applicant claims parity.

5 The Appeal preferred by applicant was listed before

learned Division Bench and vide order dated 8 th June, 2021, ofice

was directed to place Appeal before appropriate Court. From the

said order, it appeared that the present application for

suspension of sentence was not listed before the Court and it was

not pointed out to the Court that the applicant is seeking

suspension of sentence in view of change in circumstances and

that his previous application was rejected by the Division Bench.

Subsequently, this application was listed before the learned

Single Judge of this Court, and, vide order dated 21 st June, 2021,

it was observed that vide order dated 8 th June, 2021, passed by

the Division Bench, the Court had taken note of the fact that the

sentence imposed on the applicant alongwith co-accused was

seven years and the Appeal will have to be heard before

appropriate Bench (Single Judge) considering the sentences rpa 5/10 12 ia 1542 2021.doc

awarded and in view of that the Appeal is listed before the Single

Judge. It was further observed that the Appeal was admitted by

the Division Bench on 22nd December, 2020, and, application for

grant of bail was heard on merits and rejected, by recording that

there is prima facie material against the applicant. The dificulty

posed by the applicant is that his application is rejected by the

Division Bench and can always be heard by a Division Bench and

orders can be passed but not vice-a-versa. If the applicant is

desirous of taking appropriate steps, he is permitted to do so. The

matter was thereafter listed before the Division Bench on 22nd

June, 2021. The advocate for the applicant was absent. The

Division Bench proceeded to pass order that the praecipe was

fled for withdrawal of the appeal. The praecipe is vague as to the

date of circulation of appeal. In the opening part of the praecipe,

it is stated that the appeal be circulated before Court on 24 th

June, 2021, whereas, in the concluding part of the praecipe, it is

stated that the above mentioned matter be circulated for

withdrawal before Court on 22nd June, 2021. None appeared for

the appellant and there is a detailed order passed by Court on 8 th

June, 2021, directing the ofice to place the appeal before

appropriate Court/bench. Hence, no further order is required to

be passed in the matter.

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6            This Court by order dated 23rd July, 2021,                made

reference to the previous orders passed by the Division Bench as

well as by the learned Single Judge dated 21 st June, 2021,

and,directed Registry to take appropriate directions for placing

this application before the Division Bench.

7 Subsequently, the application for suspension of

sentence and the appeal challenging the judgment of conviction

were listed before the learned Division Bench and vide order

dated 5th August, 2021, the learned Division Bench had made

reference to previous orders as well as the order passed by this

Court dated 23rd July, 2021, and, directed that the matter pertains

to Single Judge and considering the fact that the appeal fled by

co-accused were placed before the learned Single Judge and

certain orders are passed on the applications by the learned

Single Judge, Registry was directed to place the present

application along with the Appeal before the learned Single Judge

of this Court for passing appropriate orders. The Court also

observed that the application fled by the applicant for suspension

of sentence and grant of bail would be considered by the learned

Single Judge on its own merits. In this circumstances, the

application and the appeal is listed before this Court.

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8           It is pertinent to note that application of accused no.2

Anand Shivram Tambe and accused No.3 Bhupsing Surgyansing

who were convicted for the same ofence with similar sentences

were directed tobe released on bail by learned Single Judge on

suspending the sentence imposed by the judgment of conviction.

Both the orders were passed after the application for suspension

of sentence preferred by the applicant was rejected by the

learned Division Bench of this Court. Learned advocate for the

applicant submitted that the applicant is entitled for release on

the ground of parity. The appeal may not come for hearing

immediately. The trial Court has not appreciated evidence

properly. The trial Court has wrongly come to the conclusion that

the applicant is one of the Director of the company and in fact it

is a matter of record that the applicant is not the director of the

company. He is only shareholder of the company. The prosecution

has not produced any documents or material in the form of

evidence to show that the applicant is director of M/s.Shine

Multitrade India Private Limited nor there is evidence to show

that the applicant is responsible for day to day afairs and

conduct of business of the said company. P.W.1 has not identifed

the applicant before the Court. Learned counsel for the applicant

drew my attention to the observations of the trial Court. In rpa 8/10 12 ia 1542 2021.doc

paragraph no.5 of the impugned judgment of conviction it is

stated that the applicant (accused no.5) is the director of the

company. Learned counsel for the applicant drew my attention to

the documents, which were exhibited in evidence, and, contended

that the documents does not disclose that the applicant is the

director of the company.

9 It is pertinent to note that the trial Court has

convicted three persons, two of them had preferred application

for suspension of sentence. The learned Single Judge has

suspended the sentence and granted bail to the said accused.

Applicant has strongly relied upon the said orders and claimed

parity. While suspending the sentence, this Court has considered

the fact that the accused were on bail during the trial and that

the fne amount is deposited. The sentence is short term

sentence. It is the case of applicant that he was on bail during

trial. He has deposited fne amount. There is change in

circumstance, after rejection of previous application for

suspension of sentence. Out of the three accused who were

convicted, including applicant, two of them are granted bail by

suspending sentence of imprisonment. Considering all these

circumstances, the sentence of imprisonment awarded against

the applicant can be suspended.

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                              :: O R D E R ::


      (i)    Interim Application is allowed and disposed of;


      (ii)   The   sentence     of    imprisonment   imposed     vide

judgment and order dated 10th February, 2020,

passed by the Special Judge, Kolhapur in M.P.I.D.

Case No.1 of 2013, is suspended during pendency

of Criminal Appeal No.498 of 2020, preferred by

applicant and the applicant is directed to be

released on bail on executing P.R. Bond in the sum

of Rs.50,000/-, with one or more solvent sureties in

the like amount;

(iii) Applicant is permitted to furnish provisional cash

bail in the sum of Rs.50,000/-, for a period of eight

weeks, in lieu of sureties;

(iv) Applicant shall report trial Court once in three