Dilip Sengupta And Another vs Unknown
2021 Latest Caselaw 3728 Cal

13.7.2021
 Sl. No.4
   BR

                                      CRA 174 of 2021
                                             With
                                     IA NO. CRAN 1 of 2021

                                     (Via Video Conference)

            In Re: An application under Section 389 of the Code of Criminal
            Procedure, 1973 as also, for suspension of sentence of the judgment
            of conviction dated 6.4.2021 and order of sentence dated 7.4.2021
            under Sections 420/468/471/120B of the Indian Penal Code
                                               And

            In the matter of: Dilip Sengupta and another
                                                  .......Appellant

            Mr. Sandipan Ganguly, Senior advocate,
            Mr. Karan Dudhwewala
                             ... for the Appellants

            Mr. Y.J.Dastoor, Ld. ASG,
            Mr. Phiroze Edulji,
            Mr. Samrat Goswami
                                ... for the C.B.I.




                     This is an application under Section 389(1) of the Code of
            Criminal Procedure      filed by the accused/appellants/petitioners
            praying for suspension of sentence and bail.
                   By a judgment of conviction dated 6 th April, 2021 and order of
            sentence dated 7th April, 2021 passed by the learned Special Judge
            (CBI), Asansol, Paschim Bardhaman in Special (CBI ) Case No. 78 of
            2011    the appellants were convicted for commission of offences
            punishable under Section 13 (2) read with Section 13(1)(d) of the
            Prevention of Corruption Act and also for commission of offence
            punishable under Sections 420/468/471/120B of the Indian Penal
            Code and sentenced to suffer rigorous imprisonment for seven years
            and to pay fine of Rs. 20,000/- each, in default to undergo further
                                    2




rigorous imprisonment for a period of one year for the commission
of offence punishable under Section 13(2) read with Section 13(1)(d)
of the Prevention of Corruption Act.
           It is submitted by Mr. Sandipan Ganguly, learned senior
counsel for the appellants that the appellant no. 1 is a retired Upper
Division Clerk in the offence of the Regional Commissioner, Colliery
Mines Provident Fund Organisation , Asansol, The appellant No. 2 is
retired Post Master     of a local post office. It is the case of the
prosecution     that the appellant/petitioner No. 1   entered into a
criminal conspiracy with one D.N.P. Yadav , the then Superintendent
attached to the said office and some other outsiders including the
appellant/petitioner no. 2 and forged valuable documents , illegally
withdrew      money from the provident fund of the      employees of
Khandra Colliery      on the plea that    the said money would be
deposited in the post office to fetch higher amount of interest and
thereby misappropriated the provident fund contribution of seven
employees of the said colliery.
           It is pointed out by Mr. Ganguly that according to the
prosecution case there were       seven victims   whose money was
misappropriated from provident fund. Out of said victims, only two
victims were examined during the trial. One of them stated on oath
that he had already received back the entire money. During trial of
the case, the accused were all along on bail. Since the accused
persons /petitioners were sentenced      to term imprisonment , they
should be released on bail pending disposal of the appeal.
       Mr. Phiroze Edulji, learned advocate for the CBI on the other
hand has raised serious objection against the prayer for bail of the
accused persons. It is submitted by him that in a case under the
Prevention of Corruption Act, bail can be granted only in exceptional
circumstances. In support of his contention he refers to the following
decision of Hon'ble Supreme Court :-
     1.

K.C.Sareen -vs- C.B.I., Chandigarh ; AIR 2001 SC 3320 .

2. State of Maharasthra -vs- Gajanan and another; AIR 2004 SC 1188.

It is submitted by Mr. Edulji that the petitioners being the public servants , since retired were convicted and sentenced to rigorous imprisonment on a corruption charge. Their sentences cannot be suspended during the pendency of the appeal.

In reply, Mr. Ganguly submits that the ratio of the decisions of the Hon'ble Supreme Court in K.C.Sareen (Supra ) and Gajanan (supra ) are not applicable under the facts and circumstances of this case. It is ascertained from the facts of the said reported decisions that the High Court suspended the order of conviction of the accused persons entitling them to hold public office during pendency of the appeal. But in the instant case the petitioners have prayed for suspension of sentence and bail. Therefore this application is absolutely maintainable under the facts and circumstances of the case. Moreover, relying on the decisions of the Hon'ble Supreme Court in Bhagwan Rama Shinde Gosai and others

-vs- State of Gujarat; (1999) 4 SCC 421 and Suresh Kumar and Others -vs- State (NCT of Delhi ); (2001) 10 SCC 338, it is submitted by Mr. Ganguly that where the sentence of imprisonment to a limited duration is passed by the trial Court, prayer for suspension of sentence and bail should be liberally considered by the Court of Appeal unless there is statutory restriction.

Having heard the learned counsels for the parties and on perusal of the entire material on record, it appears that during trial the petitioners were on bail for about eleven years there is no record against the petitioners that they misused the conditions for bail . Most of the victims whose provident fund contribution was allegedly misappropriated either did not support the prosecution case or stated on oath they received back the entire money.

In view of such circumstances this Court is inclined to grant bail to the petitioners. The petitioners may find bail of Rs. 20,000/- with two sureties of like amount , one of whom must be local surety to the satisfaction of the learned Special Judge (CBI) Court , Asansol.

The instant application is accordingly disposed of.

( Bibek Chaudhuri , J. )