Bombay High Court
Shubham S/O Krushnaji Mohadure vs State Of Mah. Thr. Pso Ps Kamptee ... on 6 December, 2021
Bench: V. G. Joshi
Order 0612appa640.21
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APPA] NO. 640/2021
IN CRIMINAL APPEAL NO. 472/2021.
Kunal Anilrao Powale -Versus- State of Maharashtra, through P.O. Kamptee, District Nagpur.
CRIMINAL APPLICATION [APPA] NO. 670/2021
IN CRIMINAL APPEAL NO. 497/2021.
Shubham Krushnaji Mohadure -Versus- State of Maharashtra, through P.O. Kamptee, Nagpur.
.CRIMINAL APPLICATION [APPA] NO. 666/2021
IN CRIMINAL APPEAL NO. 494/2021.
Sumit Laxman Bagde -Versus- State of Maharashtra, through P.O. Kamptee, Nagpur.
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office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
S/Shri S.P. Bhandarkar and R.M. Daga, Advocates for
Applicants.
Shri I. Damle, A.P.P. for the Non-applicant.
CORAM : VINAY JOSHI, J.
DATE : DECEMBER 06, 2021
Heard.
2. These applications are filed by applicants /
appellants seeking suspension of execution of substantive
sentence passed in Sessions Case No.316/2021 by the Additional
Sessions Judge-6, Nagpur on 25.10.2021. Though applicants
were charged for the offence punishable under Sections 188,
120-B, 381, 420 read with Section 34 of the Indian Penal Code,
Section 3 of Essential Commodities Act and Section 18[c] of the
Drugs and Cosmetics Act. However, the trial Court has acquitted
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them from all offences, except for Section 420 read with Section
34 of the Indian Penal Code. The trial Court has imposed
sentence to suffer rigorous imprisonment for 5 years, along with
fine of Rs.5000/- with default clause. The non-applicant State
has resisted these applications by filing separate reply affidavits.
The prosecution case in brief and evidence has been narrated.
3. The learned Counsel for applicants primely
submitted that during the course of trial though several
witnesses have been examined, however, offence of cheating has
not been proved.
4. With the assistance of both sides, I have gone
through the impugned judgment and evidence recorded during
trial. My attention has been invited to points of determination
framed by the trial Court while deciding the case. Particularly in
point no.1, the trial Court has expressed that the prosecution has
failed to prove that all the accused [including applicants] have
knowingly flouted the orders issued by the Collector pertaining
to Remdesivir vials.
5. All applicants are working as male nurse in different
hospitals. The trial Court has noted that there was no report
about theft from the hospitals where applicants were working,
hence, it is not established that applicants have committed theft
of Remdesivir vials.
6. Perusal of the impugned judgment reveals that since
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some Remdesivir vials were found in possession of applicants,
the trial Court has expressed that they were for sale in black
market. It is argued that there is no material placed by the
prosecution to establish that applicants have deceitfully induced
someone and thereby committed the offence. In order to impress
the essentials of the offence of cheating the learned Counsel for
applicants have relied on the following decisions :-
(1) Jageshwar Singh Rastogi .vrs. State of Madhya
Pradesh - 1990 Supp SCC 179.
(2) Archana Rana .vrs. State of Uttar Pradesh and
another - (2021) 3 SCC 751.
(3) Mohammad Ibrahim and others .vrs. State of Bihar
and another - (2009) 8 SCC 751.
(4) Samir Sahay @ Sameer Sahay .vrs. State of Urttar
Pradesh and another - (2018) 14 SCC 233.
(5) Uma Shankar Gopalika .vrs. State of Bihar and
another - (2005) 10 SCC 336.
Undoubtedly these principle needs consideration.
7. It is brought to my notice that there is no evidence
of witness to say that they have been cheated by these
applicants. According to learned Counsel for applicants, the
findings recorded by the trial Court are self contradictory.
8. These applicants were arrested in a case of serious
nature, however, that cannot be the sole criteria for deciding
these applications. Having regard to the fact that the trial Court
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has acquitted applicants from the offence under the Drugs and
Cosmetics Act and Essential Commodities Act, the matter
requires consideration on merits. Submission that offence of
cheating is not established needs re-assessment. Rather
applicants have made out an arguable case on merits.
9. The trial Court has imposed a fixed term of sentence
i.e. of 5 years of imprisonment along with fine. Normally where
the fixed term of sentence is imposed, in absence of any special
feature, the execution of sentence needs to be suspended. The
appeals will take its own time for disposal. Applicants are
already in jail from last 6 months. In case the
applicants/appellants succeed in the appeal, an irreversible
position about their pre-trial detention would occur. Having
regard to these facts following order is passed.
(i) Criminal Applications are allowed and disposed of.
(ii) The execution of substantive sentence imposed by
the Additional Sessions Judge-6, Nagpur vide
judgment passed in Sessions Trial No.316/2021 on
25.10.2021, shall stand suspended in respect of
applicants - Kunal Anilrao Powale (Criminal
Application [APPA] No. 640/2021 in Criminal
Appeal No. 472/2021); Shubham Krushnaji
Mohadure (Criminal Application [APPA]
No.670/2021 in Criminal Appeal No.497/2021) and
Sumit Laxman Bagde (Criminal Application [APPA]
No. 666/2021 in Criminal Appeal No. 494/2021),
till the final disposal of their appeals.
(iii) In the meantime, aforesaid applicants be released
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on bail on their executing P.R. Bond in the sum of
Rs.50,000/- each, with one surety in the like
amount.
(iv) Deposit of fine amount shall be the condition
precedent for execution of this order. The trial Court
shall ensure deposit of fine amount before issuing
release orders.
JUDGE
Rgd.
RAKESH GANESHLAL DHURIYA
07.12.2021 17:46
