Chandrkant S/O. Baliram Sonawane vs The State Of Maharashtra
2021 Latest Caselaw 14973 Bom

                                                    1-IA 1288-19.odt
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION
Amk
                   INTERIM APPLICATION NO. 1288 OF 2019
                                    IN
                     CRIMINAL APPEAL NO. 1584 OF 2019

      Chandrakant s/o. Baliram Sonawane                  .. Applicant
           Vs.
      The State of Maharashtra                           .. Respondent

      Mr. Chetan C. Agarwal for the Applicant.
      Mr. Pravin P. Chavan, Special P. P. a/w. Mr. S. S. Hulke, APP for the
      Respondent-State.
                                   CORAM : S. S. SHINDE &
                                           ABHAY AHUJA, JJ.

DATE : 13th OCTOBER, 2021.

ORAL ORDER

1. Heard learned counsel for the parties.

2. By the impugned judgment and order dated 31.08.2019 passed

by the learned Special Judge (Additional Sessions Judge), Dhule in

Special Case No. 01 of 2014 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

Sections 120-B, 109 and 34 of the Indian Penal Code, 1860 as well as

under Sections 13 (1)(c), 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.

3. The present applicant, who is arrayed as accused no.11, is

1-IA 1288-19.odt sentenced to suffer simple imprisonment of 4 years and a fine of

Rs.1,50,000/- (which is stated by learned counsel to be paid by the

applicant). 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.

4. Mr. Chetan Agarwal, learned counsel for the applicant has taken

us through the application for stay of the conviction. He submits that

the applicant has M. Sc., M. Ped qualifications and was appointed as

lecturer in Nutan Maratha College, Jalgaon in the year 1991 and

retired on superannuation from the post of Vice-Principal. It is

further submitted that the applicant was elected as councillor of

Municipal Council, Jalgaon and has rendered invaluable service

during his tenure as councillor.

5. Learned counsel submits that the impugned judgment and order

of conviction is per se illegal and perverse in nature and the

conclusions drawn by the Learned Sessions Court are against other

accused and not against the applicant. He submits that the

resolutions relied upon by the prosecution including resolution no.

300 regarding formation of high powered committee, resolution

no.84 regarding grant of Rs. 3 Crores advance to contractors,

1-IA 1288-19.odt resolution no. 8 for suspending works, resolution nos. 20 to 28

sanctioning work to Khandesh Builders are resolutions for which the

applicant has at no point of time consented to or voted for. Learned

counsel submits that the applicant was present only on 25.10.1997

for the resolution no. 328 appointing architect Kabre and Choudhari.

Learned counsel submits that from the date of sanction of the

"Gharkul Scheme" till the registration of crime, the applicant was

absent or opposed to the same or did not consent. Therefore, he has

no role in the alleged conspiracy and no conviction can be against

him including conviction under the Prevention of Corruption Act.

6. Learned counsel submits that the applicant has been a

responsible representative of council and himself has never indulged

in corrupt practice. He submits that as can be seen from the orders,

the applicant has been enlarged on bail during the trial and has also

complied with the conditions of the bail and never mis-utilized the

liberty granted to him. Also the sentence has been suspended.

Learned counsel submits that considering the aforesaid, conviction

dated 31.08.2019 in Special Case No. 01/2014 by the Special Judge,

Dhule be stayed pending the appeal, which is already admitted.

7. On the other hand, learned Special Public Prosecutor, Mr.

Chavan draws attention of this Court to three resolutions viz.

1-IA 1288-19.odt resolution no. 328 dated 25.10.1997 with respect to the appointment

of architect Kabre and Choudhari, resolution no.8 dated 11.04.2001

with respect to the suspension of work and sanction to price

escalation and resolution no. 84 dated 11.02.2001 with respect to

advance of Rs. 3 Crores to the contractors. He submits that in all

these important resolutions the applicant has been present and voted

for those resolutions as can be seen from the list of councillors present

and voting during those meetings.

8. Learned Special Public Prosecutor has also taken this Court

through paragraphs in the judgment and order dated 31.08.2019 with

respect to aforesaid resolutions and submits that there are categorical

findings of the 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.

9. In support, learned Special P. P. has also tendered across the bar

a decision of this Court in the case of Narayanlal Mansaram Rawal Vs.

Union of India and Anr. 2019 SCC Online Bom 4943 in 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 v.

1-IA 1288-19.odt Sarvabhabhouma S. Bagali [(2007) 1 SCC 673] where 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 to submit that unless the attention of the Court is

drawn to the 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 petitioner'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 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."

1-IA 1288-19.odt

10. Learned counsel for the applicant has also tendered across the

bar a copy of the order dated 27.01.2020 in the case of one of a 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.

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

Petition was filed in respect of which by an order dated 29.09.2020

notice has been issued by the Hon'ble Supreme Court with permission

to file SLP and which is as on date stated to be pending.

12. 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

1-IA 1288-19.odt 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. Admittedly, the sentence awarded

to the applicant has been suspended by this Court while admitting an

appeal filed by the applicant and he is enlarged on bail.

13. The application is hereby rejected. There shall however be no

order as to costs.

14. 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.

15. Interim Application is accordingly disposed.

16. Parties to act on an authenticated copy of this order.

              [ABHAY AHUJA, J.]                   [S. S. SHINDE, J.]

ARJUN
MACHHINDRA
KADAM

Digitally signed by
ARJUN MACHHINDRA
KADAM
Date: 2021.10.14
21:09:48 +0530