Rizwan Sayyed Sadiq Patel vs Central Bureau Of Investigation ...
2022 Latest Caselaw 4440 Bom

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                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION


                                   INTERIM APPLICATION NO.1233 OF 2022
                                                  WITH
                                   INTERIM APPLICATION NO.1234 OF 2022
                                                   IN
                                     CRIMINAL APPEAL NO.392 OF 2022


                      Rizwan Sayyed Sadiq Patel                         .. Applicant
                            Versus
                      Central bureau of Investigation and Anr.          .. Respondents

                                                      ......
                      Mr.V.J. Bhanushali,    a/w. Mr.Govind Ghogare, Advocate for the
                      Applicant.

                      Mr.S.V. Gavand, APP for the Respondent - State.
                                                      ......
                                                    CORAM :     PRAKASH D. NAIK, J.

                                                     DATED :     APRIL 27, 2022.

                      P.C. :

In both these applications, the applicant prayed for

suspension of sentence and grant of bail pending Criminal Appeal

No.392 of 2022.

2 The applicant (accused no.4) is convicted for the offence Digitally signed by RAJESHRI RAJESHRI PRAKASH PRAKASH AHER under Section 120-B of Indian Penal Code ("IPC", for short), and, AHER Date:

2022.04.29 15:53:28 +0530 sentenced to suffer rigorous imprisonment for two years and pay fne

of Rs.50,000/-. He is also convicted for the offence under Section 420

read with 120-B of IPC, and, sentenced to suffer imprisonment of rpa 2/9 29ia 1233,1234 of 2022.doc

three years and fne of Rs.30,00,000/-. He is also convicted for the

offence under Section 465 of IPC, and, sentenced to suffer rigorous

imprisonment for one year and fne of Rs.1,00,000/-. He is further

convicted for the offence punishable under Section 471 of IPC, and,

sentenced to suffer imprisonment for one year and fne of

Rs.1,00,000/-. He has been acquitted for the offence punishable under

section 409 of IPC.

3 Learned advocate for the applicant submitted that the

applicant was on bail during trial. He has not misused the facility of

bail. The case of the prosecution suffers from serious discrepancies.

The prosecution has not produced on record the documents to support

its case. The trial Court has not assigned any reasons for imposing

huge fne amount. The evidence of P.W.10 refers to the

misappropriation of Rs.78,00,000/-, which is not fortifed by any

documentary evidence. The maximum sentence imposed by the trial

Court is imprisonment of three years. The Appeal preferred by the

applicant would not come up for hearing within short span of time.

The applicant is in fnancial constraints. He belongs to lower strata of

the society, and, it is not possible for him to deposit fne amount. The

trial Court has given undue importance to forged or fake National

Saving Certifcate, which are not produced before the Court, and, rpa 3/9 29ia 1233,1234 of 2022.doc

there is nothing to show that the said documents were fake. The

fnding of the trial Court is contrary to the evidence on record. The

sentence is of short term. Hence, the sentence of imprisonment may

be suspended. Fine amount imposed by the trial Court may be relaxed

while suspending the sentence, till fnal disposal of the Appeal. The

Applicant is not in a position to deposit more than Rs.1,00,000/-

towards the entire fne amount imposed by the trial Court. The co-

accused Ashok Leharchand Bhansali (accused no.3) and accused no.1

Amid Ali Ghulam Vohra, were granted bail by this Court by

suspending sentence. The Court had also relaxed the condition to

depositing the fne by permitting the accused to deposit the reduced

fne amount.

4 Mr.Patil appearing for CBI submitted that there is

suffcient evidence to establish the offence against the applicant. The

applicant has been convicted on the basis of evidence. Fine amount

was calculated on the basis of the misappropriation and considering

the fact that the accused had utilised the misappropriated amount

since last several years.

5 Learned advocate for applicant has relied upon the

following decisions :-

(a) Satyendra Kumar Mehra Vs. State of Zharkhand (2018)1;

1     (2018) 15 SCC 139
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(b)      Emperor V/s. Mendi Ali2;
(c)       Adamji Umar Dalal V/s. State of Bombay3;
(d)       Monika Acharya V/s. State of Orissa4;
(e)       Shahejadkhan Mehebubkhan Pathan V/s. State of Gujrat
          in Criminal Appeal No.1593 of 2012;

6 FIR was registered on 30th May, 1998. The complaint was

fled by Bank of India Jacob Circle Branch, Mumbai. The case of

prosecution is that the complainant Bank was holding several bank

accounts of accused. The Bank offcers permitted drawings in all the

accounts against uncleared instruments. deposited in accounts and

sent for clearing. Cheques were The branch was permitting drawings

against uncleared effects immediately and sent instruments

simultaneously in clearing and invariably all the cheques were

returned unpaid by drawee Bank. The account did not show TOD

statement. The account did not show TOD statement. It resulted in

loss of Rs.98,28,000/-. The accused No.1 sanctioned loans on 7 th

March, 1998 and 10th March, 1998 aggregating to Rs.78,22,500/- NSC

certifcates pledged in accounts were not genuine. Accused entered

into criminal conspiracy to cheat complainant bank.

7                The trial Court in Paragraph-35 of judgment has


2     AIR 1941 Allahbad 310
3     AIR (39) 1952 SC 14
4     2000 (1) Orissa LR 299
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observed that, prosecution has not proved account statement of

referred accounts. The transaction took place in the year 1997-1998.

Thereafter, there was drastic change in banking system. The

statement of accounts were maintained manually but around year

2000, the manual account statements were converted in

computerized system. Attempt was made by prosecution to place

account statement but no original record was available as of now since

the period of more than 20 years passed, so prosecution could not

prove the authenticate account statement. The defence had urged that

there is no evidence to show what loss is caused by individual accused

to Bank and total loss caused to Bank. In the alleged fctitious loan

account, the loan was sanctioned on the basis of national saving

certifcate, but no such certifcate was placed on record to show that

those are forged and fabricated. In paragraph-64 it is concluded that

in 1997-98 the accused committed fraud of Rs. 98,00,000/-. The value

of which today is around 8 to 10 Crores. However, how the court has

arrived at such fgure is not clear.

8 In the case of Satyendra Kumar Mehra (Supra) the

Supreme Court has observed that, the appellate Court while

exercising power under Section 389 of Cr.P.C. can suspend the

sentence of imprisonment as well as of fne without any condition or rpa 6/9 29ia 1233,1234 of 2022.doc

with conditions. There are no fetters on the power of the appellate

Court while exercising jurisdiction under Section 389 of Cr.P.C. The

appellate Court could have suspended the sentence and fne both or

could have directed for deposit of fne or part of fne. The Orissa High

Court in the case of Monika Acharya (Supra) has held that, the

expression 'sentence' means not only substantive sentence of

imprisonment but also includes sentence of fne. Under Section 389(1)

of Cr.P.C. the appellate Court has jurisdiction to order suspension of

proceedings for recovery of fne amount during pendency of appeal.

9 In the case of Emperor V. Mendi Ali (Supra) it was

observed that, Court should exercise careful discretion in the matter

of super imposing fnes upon long substantive terms of imprisonment.

In Adamji Dalal Vs. The State of Bombay (Supra) it was observed that,

the determination of the right of measure of punishment is often point

of great diffculty and no hard and fast rule can be laid down, it being a

matter of discretion which is to be guided by a variety of

considerations but the Court has always to bear in mind the necessity

of proportion between an offence and the penalty. In imposing fne it is

necessary to have as much regard to the pecuniary circumstances of

the accused as to the character and magnitude of the offence, and

where a substantial term of imprisonment is inficted, an excessive

fne should not accompany it except in exceptional cases. Due regard rpa 7/9 29ia 1233,1234 of 2022.doc

has not been paid to these consideration in cases before Court and the

zeal to crush the evil of black-marketing and free the common man

from plague has perturbed the judicial mind in determination of the

measure of punishment. In the case of Shahejadkhan Pathan (Supra)

the Apex Court was dealing with appeals against judgment of High

Court of Gujarat dismissing appeals. It was observed that, the amount

of fne should not be harsh or excessive, where substantial term of

imprisonment is inficted an excessive fne should not be imposed

except in exceptional cases.

10 The applicant is suffering from immunocompromised

Host with Retroviral Disease since last 12 years. He is also a known

case of Systemic Hypertension, Pseudophalic Endophthalmitis with

Impaired vision. Present he is on ART, antihypertensives, opthalmie

medications and supportive treatment, which he has been advised to

continue.

11 Considering the above submissions, I pass the following

order:

:: O R D E R ::

(i) Interim Application Nos.1233 of 2022 and 1034 of 2022, are

allowed;

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(ii) During the pendency of Criminal Appeal No.332 of 2022, the

sentence of imprisonment imposed vide judgment and order

dated 23rd February, 2022, passed by the learned Special

Judge (CBI) Gr. Bombay, is suspended and the applicant is

directed to be released on bail on executing P.R. Bond in the

sum of Rs.25,000/-, with one or more sureties in the like

amount;

(iii) Applicant/appellant is permitted to furnish cash bail

security of Rs.25,000/-, for a period of eight weeks, in lieu of

surety;

(iv) Towards the conviction under Section 120-B of IPC, the

applicant is directed to pay the fne amount of Rs.20,000/-,

till the fnal disposal of Appeal;

(v) Towards the conviction for offence under Section 420 read

with 120-B, the applicant is directed to deposit Rs.75,000/-,

towards the fne amount, till the fnal disposal of Appeal;

(vi) Towards conviction under Section 465 of IPC, the applicant

shall deposit the fne amount of Rs.25,000/-, till the fnal

disposal of Appeal;

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(vii) Towards conviction under Section 471 of IPC, the applicant

is permitted to deposit the fne amount of Rs.25,000/-, till

the fnal disposal of Appeal;

(viii) The fne amount shall be deposited before the trial Court

within a period of 10 weeks from the date of his release;

(ix) Interim Application Nos.1233 of 2022 and 1234 of 2022,

stand disposed of accordingly;

(x) Trial Court shall report this Court about compliance of this

order.

(PRAKASH D. NAIK, J.)