Bombay High Court
Nandkumar Vasant Pednekar And Anr vs The State Of Maharashtra on 2 July, 2021
Bench: R.P. Mohite-Dere
1. IA 1556-21 in A 506-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1556 OF 2021
IN
CRIMINAL APPEAL NO. 506 OF 2021
1. Nandkumar Vasant Pednekar
2. Mahesh Laxman Chavhan ...Applicants
Versus
The State of Maharashtra ...Respondent
Mr. Anil C. Lalla i/b Lalla and Lalla for the Applicants.
Mr. S.V.Gavand, A.P.P for the Respondent-State.
CORAM : REVATI MOHITE DERE, J.
DATE : 2nd JULY, 2021
(Through Video Conferencing)
P.C. :
1. Heard learned Counsel for the parties.
2. At the outset, learned counsel for the applicants seeks leave to
amend the prayer clause. Leave granted. Amendment to be carried out
forthwith.
3. By this application, the applicants seek suspension of their
sentence and enlargement on bail, pending the hearing and final disposal of
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their appeal. The applicants also pray that the order directing the applicant
to deposit fine amount of Rs.1,00,000/- each, be stayed.
4. The applicants, vide judgment and order dated 13/05/2021
passed by the learned District Judge - 6 and Additional Sessions Judge,
Thane in Special Case No. 3 of 2016, have been convicted and sentenced as
under :-
- for the offence punishable under Sections 406, 420 of the
Indian Penal Code and undr Section 3 of the Maharshtra Protection of
Interest of Depositors Act to suffer rigorous imprisonment for 5 years
and to pay fine of Rs.1,00,000/- each, in default to undergo further
simple imprisonment for three months;
The learned Judge has also directed vide Clause (4) of the said
order that the Liquidator and Competent Authority in consultation
with each other sale out the immovable property described in the
Judgment by public auction and use the sale proceeds for
proportionate repayment to the investors main branch of the Co-
operative Credit Society as well as branch at Koparkhairane.
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5. Learned Counsel for the applicant submits that there is non
compliance of Section 235(2) Criminal Procedure Code, which mandates
that the Sessions Judge hear the accused on the question of sentence, before
passing the order. He submits that admittedly, in the present case, the said
mandate of Section 235(2) has not been adhered to by the learned Judge and
as such, the matter be remitted back to the learned Sessions Judge on the
point of sentence. He submits that the applicants would have an opportunity
to point out to the learned Judge that the amount involved in the case was
Rs.40,00,000/- and whereas, the property which was attached in the said
case was over Rs.12 Crores and as such, the question of imposing fine
would not have arisen. He further submits that the learned Judge has
convicted the applicants under Section 406, 420 of the Indian Penal Code
and under Section 3 of the Maharashtra Protection of Interest of Depositors
Act for five years, when in fact, Section 406 of the Indian Penal Code
contemplates a maximum punishment of three years. He further submits
that the applicants were on bail, pending trial and that they have not
misused the liberty granted to them. He further submits, on instructions of
the applicants, that the applicants will not contest/oppose the public auction
and distribution of sale proceeds for proportionate repayment to the
investors as directed by the Trial Court vide clause (4) of the impugned
judgment and order dated 13/05/2021. Statement accepted.
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6. Learned APP submits that there is no reason to remand the case
to the Trial Court. Learned APP relied on the judgment of the Apex Court
in the case of Dagdu and Ors. V/s. State of Maharashtra AIR 1977 SC
1579 wherein the three Judges Bench, referring to the judgment of Santa
Singh AIR 1976 SC 2386 held as under :
"The Court on convicting an accused must unquestionably
hear him on the question of sentence. But if, for any reason, it
omits to do so and the accused makes a grievance of it in the
higher court, it would be open to that court to remedy the
breach by giving a hearing to the accused on the question of
sentence.
It further held as follows :
".... for a proper and effective implementation of the
provisions contained in Section 235(2), it is not always
necessary to remand the matter to the Court which has
recorded the conviction ? Remand is an exception, not a rule
and ought therefore to be avoided as far as possible in the
interest of expeditious, though fair, disposal of cases."
7. He submits that no doubt, there has been non compliance of
Section 235(2) of the Criminal Procedure Code, however, it is not necessary
to remand the matter back to the Trial Court and that the said exercise can
be done by this Court, at the time of final hearing of the aforesaid appeal.
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8. Perused the papers. As far as the mandate of Section 235(2) of
the Criminal Procedure Code is concerned, it contemplates hearing the
accused on the question of sentence. However, having regard to the
judgment relied upon by the learned APP, it would also be open for this
Court to hear the accused on the point of sentence when the appeal is heard
finally. Admittedly, the amount involved in the case is Rs.40,00,000/- and
the property seized is way beyond the said amount. At this stage, the
learned APP states that the valuation of the property is Rs. 6 crores whereas
according to the learned A.P.P, it is Rs. 12 crores. Learned Counsel for the
applicant, on instructions of the applicants, states that the applicants will not
challenge clause (4) of the impugned judgment and order dated 13/05/2021
nor will they oppose the public auction and distribution of the sale proceed
for proportionate repayment to the investors as directed by the Trial Court.
Statement accepted. In view of the aforesaid, having regard to the facts, the
order directing payment of fine is stayed, pending the hearing and final
disposal of this appeal.
9. The applicants were on bail pending trial and have not misused
their liberty. The sentence awarded is a short term sentence. The appeal
has been admitted by a separate order passed today in the aforesaid appeal
and the same is not likely to be heard in the immediate near future.
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10. Considering the aforesaid, the application is allowed and the
applicant's sentence is suspended and they are enlarged on bail, pending
the hearing and final disposal of his appeal, on the following terms and
conditions :-
ORDER
i) The applicants be released on cash bail in the sum of
Rs.25,000/- each, for a period of eight weeks;
ii) The applicants shall within the said period of eight weeks,
furnish P.R. Bond in the sum of Rs.25,000/- each, with one or two sureties
in the like amount;
iii) The order directing the applicants to deposit fine, is stayed,
pending the hearing and final disposal of this appeal;
iv) The applicants shall report to the trial Court, once in six
months on the day/date specified by the trial Court, till their appeal is
finally disposed of;
v) The applicants shall keep the trial Court informed of their
current address and mobile contact numbers and/or change of residence or
mobile details, if any, from time to time;
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vi) If there are two consecutive defaults in appearing before the
trial Court, the learned Judge shall make a report to the High Court and the
prosecution would be at liberty to file an application seeking cancellation
of bail.
11. The application is accordingly disposed of.
12. All concerned to act on the authenticated copy of this order.
REVATI MOHITE DERE, J.
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