Kailas Narayan Sonawane vs The State Of Maharashtra
2021 Latest Caselaw 17172 Bom

Sherla V.


                                                                           ia.91.2021 (O).doc
VISHWANATH
SATYANARAYANA
SHERLA                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE SIDE
    Digitally signed by
    VISHWANATH
    SATYANARAYANA
    SHERLA                   CRIMINAL INTERIM APPLICATION NO.91 of 2021
    Date: 2021.12.09                            IN
    14:45:09 +0530
                                  CRIMINAL APPEAL NO.1519 OF 2019

                      Kailas Narayan Sonawane                              ... Applicant
                                Vs.
                      State of Maharashtra                              ... Respondent


                      Mr.S.B. Shetye i/b Mr.Kishor Sant with Ms.Priyanka Chavan for the
                      Applicant

                      Mr.Pravin Chavan, Special Public Prosecutor with Mr.S.S. Hulke,
                      APP, for Respondent - State

                                             CORAM: S.S. SHINDE &
                                                    SURENDRA P. TAVADE, JJ.

                            ORDER RESERVED ON: DECEMBER 7, 2021
                            ORDER DELIVERED ON: DECEMBER 9, 2021


                      ORDER (PER S.S. SHINDE, J.):

1. Heard learned Counsel for the parties.

2. By the impugned judgment and order dated 31 st August,

2019 in Special Case No.1 of 2014 passed by the learned Special

Judge, Dhule, a total number of 51 accused including the present

applicant were convicted for the offences punishable under

sections 177, 201, 406, 409, 411, 420, 465 468, 471 read with

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Sections 120-B, 109 and 34 of the Indian Penal Code as well as

under sections 13(1)(c) and 13(1)(d) of the Prevention of

Corruption Act, 1988 and sentenced to suffer simple imprisonment

for a period ranging from 5 to 7 years. The present applicant, who

is arrayed as accused No.30, is sentenced to suffer a maximum

simple imprisonment for 4 years and to pay a fine of Rs.1 lakh

under different sections. The appeal filed by the applicant is

already admitted and the applicant has been granted bail by

passing an order on a separate application. The sentence of the

applicant has also been suspended by passing a separate order.

By way of this Application, the applicant has prayed for stay to the

effect, operation and execution of the conviction recorded by the

learned Special Judge, Dhule in Special Case No.1 of 2014 by

judgment and order dated 31st August, 2019.

3. At the outset, the learned Counsel appearing for the

applicant, on instructions, does not press the prayer clause (B)

praying for relaxing the conditions of depositing the passport with

the office of the High Court and directing the High Court to return

the passport to the applicant.

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4. Mr.Shetye, learned Counsel appearing for the applicant, has

taken us through the application for stay of the impugned judgment

and conviction. He submitted that the applicant was elected as

Councillor of the Municipal Council, Jalgaon and has rendered

invaluable service during his tenure as Councillor.

5. The applicant is an elected Corporator from Jalgaon City

Municipal Corporation. The Municipal Commissioner, Jalgaon City

Municipal Corporation has issued show-cause notice to the

applicant on 3rd December, 2019 to show cause as to why no

action be taken of declaring the applicant disqualified as a

Corporator in view of section 10 of the Bombay Provincial

Municipal Corporations Act. The reference by the Municipal

Commissioner with prayer to disqualify the applicant has a

Corporator is pending before the concerned Court wherein notices

are issued to the applicant. Therefore, the learned Counsel

appearing for the applicant prays for stay to the conviction

recorded by the learned Special Judge, Dhule in Special Case

No.1 of 2014 by judgment and order dated 31 st August, 2019, till

the disposal of the Criminal Appeal No.886 of 2019 pending before

the High Court.

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6. Learned Counsel for the applicant has tendered across the

bar a copy of the order dated 27th January, 2020 in the case of one

of the co-accused viz., Gulabrao s/o. Baburao Deokar vs. The

State of Maharashtra in Interim Application No.2 of 2019 in Appeal

No.1549 of 2019 where, in paragraph 7, this Court has made the

following observations which are quoted as under:

"7. It is pertinent to note that the applicant has not signed a single cheque in his tenure given in favour of the Khandesh Developers. It is also not the case of the prosecution that the applicant has gained anything directly or indirectly from the said project. Even the policy decisions were not taken in the tenure of applicant. Unlike the other councilors, no payments are released to the Khandesh Builders during the tenure of the applicant. It is also not the case of the prosecution that the applicant was concerned with the Khandesh Builder. The applicant has been convicted by taking recourse to the provisions of Section 120B of the Indian Penal Code, 1860."

7. It is also submitted that against the above order, a Special

Leave Petition was filed in respect of which, by an order dated 29 th

September, 2020, notice has been issued by the Hon'ble Supreme

Court with permission to file Special Leave Petition, however,

subsequently the said Special Leave Petition has been dismissed.

8. On the other hand, Mr.Chavan, the learned Special Public

Prosecutor appearing for the Respondent - State, vehemently

opposed the application. He drew the attention of this Court to

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certain resolutions i.e., 120 (appointment of Kabre Chaudhari as

Architect for Asoda road), 121 (appointment of Kabre Chaudhari

as architect for Khedi), 300 (Formation of High Power Committee),

328 (Appointment of Architect Kabre Choudhari), 271

(Appointment of Architect Prakash Gujrathi), 272 (Appointment of

Architect Kabre Chaudhari), 273 (Appointment of Architect Shirish

Barve), 274 (Sanction to LIG Hsg. Scheme at Tambapura), 274A

(Sanction to LIG hsg. Scheme at Khanderao Nagar), 274B

(Sanction to LIG hsg. Scheme at Harivitthal Nagar), 274C

(Sanction to LIG hsg. Scheme at Samata Nagar), 274D (Sanction

to LIG hsg. Scheme at Fukatpura), 274E (Sanction to LIG hsg.

Scheme at Asoda road), 274F (Sanction to LIG hsg. Scheme at

Shivajinagar), 274G (Sanction to LIG hsg. Scheme at Mehrun),

274P (Sanction to LIG hsg. Scheme at Khedi), 326 (To shift the

slum to MIDC), 471 (extending the last date for accepting tenders),

20 (Sanctioning the work of Shivajinagar to Khandesh Builder), 21

(Sanctioning the work of Asoda Road to Khandesh Builder), 22

(Sanctioning the work of Fukatpura to Khandesh Builder), 23

(Sanctioning the work of Khanderaonagar to Khandesh Builder),

24 (Sanctioning the work of Harivitthalnagar to Khandesh Builder),

25 (Sanctioning the work of Samta Nagar to Khandesh Builder), 26

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(Sanctioning the work of Tambapura to Khandesh Builder), 27

(Sanctioning the work of Tambapura to Khandesh Builder), 28

(Sanctioning the work of Mehrun Gaothan to Khandesh Builder),

54 (Purchase of land near Pimprala Gat No.219), 321 (To change

site of work), 365 (Sanctioning Material advance of Rs.15 lakhs),

62 (Releasing the bank guarantee), 119 (Appointment of Kabre

Chaudhari as Architect for Mehrun Gaothan), 262 (extension of

time by three years), 432A (Sanction to revised estimates) and

submitted that in all these important resolutions, the applicant was

present and voted in favour of passing of those resolutions, as it

can be seen from the list of Councillors present and voting during

those meetings.

9. Learned Special Public Prosecutor has also taken this Court

through certain paragraphs in the impugned judgment and order

dated 31st August, 2019 with respect to the aforesaid resolutions

and submitted that there are categorical findings of modus

operandi and the illegalities in the appointment and sanctioning of

expenditure and payments which can only be finally determined at

the hearing of the appeal and in this view of the matter conviction

cannot be stayed at this stage.

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10. In support, the learned Special Public Prosecutor has

tendered across the bar a decision of this Court in the case of

Narayanlal Mansaram Rawal vs. Union of India and Anr. 1 which

was a similar case of an application for suspension of conviction of

the applicant - accused for the offence under the Prevention of

Corruption Act, which decision refers to the Supreme Court

decision in the case of Ravikant S.Patil vs. Sarvabhabhouma S.

Bagali2, wherein a 3 Judge Bench of the Apex Court held that the

power to stay conviction should be exercised only in exceptional

circumstances where failure to stay would lead to injustice and

irreversible consequences. He refers to paragraph 10 thereof to

submit that unless the attention of the Court is drawn to specific

consequences that would follow on account of conviction, the

convict cannot obtain an order of stay of conviction and that grant

of stay of conviction is to be resorted to in rare cases depending

upon the special facts of the case, which he submits do not exist in

applicant's favour in the present case. Paragraph 10 referred to

above is usefully quoted as under:

"10. In Ravikant S. Patil Vs.Sarvabhadhouma S. Bagali [(2007) 1 SCC 673], a three Judge Bench of this court has

1 2019 SCC Online Bom 4943 2 (2007) 1 SCC 673

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held that the power to stay the conviction .... "should be exercised only in exceptional circumstances where failure to stay the conviction would lead to injustice and irreversible consequences". In Navjot Singh Sidhu v. State of Punjab [(2007) 2 SCC 574], following Ravikant S. Patil case (supra), at paragraph-6, this Court held as follows:

"6. The legal position is, therefore, clear that an appellate court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed. Unless the attention of the court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case."

11. Having heard the learned Counsel and having noted the

aforesaid after giving an anxious consideration, we are not inclined

at this stage to grant the application for stay of the conviction of

the applicant. Firstly, an involvement of the applicant in the

alleged offences has been demonstrated by the learned Counsel

appearing for the respondent - State and secondly, there do not

exist special/exceptional circumstances where failure to stay

conviction would lead to injustice or irreversible consequences nor

our attention has been drawn to the consequences that would

follow on conviction that persuade us to stay the conviction.

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Admittedly, the sentence awarded to the applicant has been

suspended by this Court while admitting the appeal filed by the

applicant and he is enlarged on bail. Further, similar applications

filed by similarly placed accused, have been rejected by this Court.

12. In the circumstances, the application is hereby rejected.

There shall however be no order as to costs.

13. Needless to mention that all the aforesaid observations are

prima facie in nature and will not have any bearing on the disposal

of the Appeal on merits.

14. Interim application stands disposed of accordingly.

15. All concerned to act on an authenticated copy of this order.

          (S.P. TAVADE, J.)                      (S.S. SHINDE, J.)