Bombay High Court
Alpesh Vasantlal Mistry vs The State Of Maharashtra on 23 October, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 342 OF 2023
Alpesh Vasantlal Mistry ..Applicant
Versus
The State of Maharashtra ..Respondent
WITH
INTERIM APPLICATION NO. 3861 OF 2023
IN
CRIMINAL REVISION APPLICATION NO. 342 OF 2023
__________
Mr. Saurabh S. More for Applicant.
Mr. Ajay Patil, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 23 OCTOBER 2023
PC :
1. The Applicant was the original accused No.1 in
C.C.No.204/PW/2009 before the Metropolitan Magistrate, 18 th
Court, Girgaon, Mumbai. The learned Magistrate vide his
Judgment and order dated 17.04.2018 convicted the applicant and
his other co-accused for commission of the offences punishable
under sections 465, 471, 467, 468 and 420 r/w. 34 of the I.P.C. The
applicant was convicted and sentenced as under:
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Sections Sentence
Section 465 and 471 r/w.34 Fine of Rs.1000 and in default
of I.P.C. S.I. for three months.
Section 467 r/w. 34 of I.P.C. S.I. for three years and fine of
Rs.3000/- and in default S.I. for
1 year.
Section 468 r/w. 34 of I.P.C. S.I. for three years and fine of
Rs.3000/- and in default S.I. for
1 year.
Section 420 r/w. 34 of I.P.C. S.I. for three years and fine of
Rs.3000/- and in default S.I. for
1 year.
All the sentences were directed to run concurrently.
2. The Applicant challenged this order before the
Additional Sessions Judge, Greater Mumbai, vide Criminal Appeal
No.308 of 2018. Learned Sessions Judge vide his Judgment and
order dated 30.09.2023 maintained the conviction. However, the
sentence was modified and instead of substantive sentence of three
years for all the aforementioned offences, the applicant was
sentenced to suffer S.I. for one year. The sentence of fine and the
in default sentence was maintained.
3. The applicant was in custody during the period of
investigation from 19.02.2009 up to 30.05.2009 and after
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dismissal of his appeal from 30.09.2023 till today. Thus, he is in
custody for around four months out of the substantive sentence of
one year which was imposed on him as of today.
4. Heard Mr. Saurabh More, learned counsel for the
Applicant and Mr. Ajay Patil, learned APP for the
State/Respondent.
5. The prosecution case is that the applicant was employed
for a brief period with M/s. Orocraft Jewels Pvt. Ltd. from
February 2008 up to May 2008 as a Production Manager. Between
October 2008 to January 2009, some amount from the account of
said Orocraft Jewels Pvt. Ltd. maintained with the Bank of India,
Opera House, Mumbai was found to be short by the Director of the
said company. He made enquiries with the bank. The enquiries
revealed that the amount of Rs.5,72,000/- was found short and it
was found to have been transferred in the accounts of both the
accused. On this basis, at the instance of the bank, the F.I.R. was
lodged and the investigation was carried out. During trial, the
prosecution examined six witnesses. The main witnesses were
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PW-1 Uday Kesarkar, who was the Chief Manager of the Bank of
India, Opera House, Mumbai, PW-5 Sanjay Shah, who was the
Director of the said company and PW-6 Annasaheb Patil was
examined as the Hand writing expert.
6. Learned counsel for the applicant submitted that the
company's Director PW-5 himself did not lodge an F.I.R. The F.I.R.
was lodged by the bank officer. There were 21 transactions by
cheques. On the basis of those cheques the amounts were
transferred. He submitted that, those amounts were transferred to
the account of the applicant as his salary dues. It was not possible
to believe that, on all these occasions, none of the bank officers
could not have suspected that the signatures were forged. He
submitted that, the hand writing expert's opinion is inconclusive.
He has not even opined that the signatures on all the cheques were
not of the Director of the company. He submitted that, during the
same period, the company was in the process of being wound up
and, therefore, the company wanted to pay the dues to the
employees and only at the instance of creditors of the company,
this prosecution was launched against the applicant. He further
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submitted that, out of the substantive sentence of one year, the
applicant has nearly completed four months of actual
imprisonment and by utilizing remission, his actual remaining
sentence would be much less. Therefore, his bail application be
considered sympathetically as the revision application is likely to
take a long time to be decided.
7. Learned APP supported the Judgment passed by the Trial
Court, as well as, the Appellate Court. However, he also accepted
that, out of one year of substantive sentence, four months have
already passed when the applicant was in custody.
8. Learned counsel submitted that the Charge U/s.420 of
the I.P.C. was not specifically framed, though, the applicant was
also convicted for commission of offence punishable U/s.420 r/w.
34 of the I.P.C. This legal aspect is important. In this view of the
matter, arguable points are raised. Therefore, the revision
application deserves to be admitted.
9. Considering the period which the applicant has already
undergone in the past and also taking into account the fact that
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the revision application is not likely to be decided in near future,
the applicant deserves to be released on bail. The Applicant has
already deposited the fine amount in the trial Court.
10. Hence, the following order:
ORDER
i) The Criminal Revision Application is admitted.
ii) Record and proceedings be called.
iii) During the pendency and final disposal of the
revision application, the applicant is directed to
be released on bail on his furnishing P. R. bond in
the sum of Rs.10000/- with one or two sureties in
the like amount.
iv) The substantive sentence imposed on the
applicant stands suspended till final disposal of
the revision application.
v) The Interim Application No.3861 of 2023 is
disposed of.
(SARANG V. KOTWAL, J.)
