Vinod Kumar Kashyap vs Cbi
2011 Latest Caselaw 3524 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%
                    Judgment Delivered on : July 25th 2011

+                   CRL.APPEAL NO.551/2009

       VINOD KUMAR KASHYAP                     ......Appellant
                    Through :Mr.V.Babu Joseph, Adv
                         Versus
       CBI                                  ......Respondent
                    Through: Mr. M. P. Singh, APP for State.


       CORAM:
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?                               No.
     2. To be referred to the Reporter or not?          No.
     3. Whether the judgment should be reported in the
        Digest?                                          No.

SURESH KAIT, J. (Oral)

1. Vide judgment dated 18.04.2009, the appellant was

held guilty under Section 409, 420, 467, 468, 471 and 477A of

Indian Penal Code and further since the appellant has abused

his position as public servant obtained pecuniary advantage to

himself for ì 3,53,714.50/- and committed offence under

Section 13 (1) (d) punishable under Section 13 (2) of

Prevention of Corruption Act, 1988.

4. Vide order on conviction dated 20.04.2009,

appellant was sentenced as under:-

"Sentenced to three years rigorous imprisonment for the offence punishable u/s 409 Indian Penal Code with a fine of ì 50,000/- and in default of payment of fine, he shall further undergo simple imprisonment for 15 days.

Sentenced to further three years rigorous imprisonment for the offence punishable u/s 420 Indian Penal Code with a fine of ì 60,000/- and in default of payment of fine, he shall further undergo simple imprisonment for 15 days.

Sentence to further three years rigorous imprisonment for the offence punishable u/s 467 Indian Penal Code with a fine of ì 75,000/- and in default of payment of fine, he shall further undergo simple imprisonment for 15 days.

Sentenced to further two years rigorous imprisonment for the offence punishable u/s 468 Indian Penal Code with a fine of ì 10,000/- and in default of payment of fine, he shall further undergo simple imprisonment for 07 days.

Sentence to further three years rigorous imprisonment for the offence punishable u/s 471 Indian Penal Code with a fine of ì 75,000/- and in default of payment of fine, he shall further undergo simple imprisonment for 15 days.

Sentence to further three years rigorous imprisonment for the offence punishable u/s 477A Indian Penal Code with a fine of ì75,000/- and in default of payment of fine, he shall further undergo simple imprisonment for 15 days.

Sentence to further three years rigorous imprisonment for the offence punishable u/s 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 with a fine of ì 50,000/- and in default of payment of fine, he shall further undergo simple imprisonment for 15 days."

5. All the sentences of the appellants were to run

concurrently and the period of the detention, if any, already

undergone by the accused/convict shall be set off.

6. Under Sub Section (b) and (d) of Section 357 of the

Code of Criminal Procedure 1973 it is provided that when a

court imposes a sentence of fine or a sentence (including a

sentence of death) of which fine forms a part, the Court may,

when passing judgment order the whole or any part of the fine

recovered to be applied (b) in the payment to any person of

compensation for any loss or injury caused by the offence,

when compensation is, in the opinion of the Court, recoverable

by such person in a Civil Court; (d) when any person is

convicted of any offence which includes theft, criminal

misappropriation, criminal breach of trust, or cheating, or of

having dishonestly received or retained, or of having

voluntarily assisted in disposing of, stolen property knowing or

having reasons to believe the same to be stolen, in

compensating any bona fide purchaser of such property for

the loss of the same if such property is restored to the

possession of the persons entitled thereto.

Needless to state that u/s 70 of Indian Penal Code, 1860

the complainant may recover the unpaid fine amount within 06

years after passing of the sentence. Section 70 Indian Penal

Code provides that the fine, or any part thereof which remains

unpaid, may be levied at any time within six years after the

passing of the sentence, and if, under the sentence, the

offender be liable to imprisonment for a longer period than six

years, then at any time previous to the expiration of that

period; and the death of the offender does not discharge from

the liability any property which would, after his death, be

legally liable for his debts.

7. In the present case, the appellant has misappropriated

amount in a sum of `3,53,714.50/- of Sh.Budh Parkash,

ì12,000/- of Smt.Mohra Devi & ì17,000/- of Ms.Veena Kumari,

and as such as was ordered by the trial Judge that when the

above said fine imposed on the accused is recovered, out of

the amount so recovered; amount of ì3,24,714.50/- be paid to

Sh.Budh Parkash, ì17,000/- to his daughter Ms.Veena Kumari,

and ì 12,000/- be paid to Smt.Mohra Devi.

8. On calculating the total period of default of payment of

fine, comes to 97 days in total. As per the nominal roll dated

22.07.2011, the sentence undergone as on 22.07.2011 is

02 years, 04 months and 22 days and the total remission earn

by the appellant is 08 months and 20 days. The total

unexpired period of sentence is 01 month, 25 days. It comes

around total 03 years, 45 days and unexpired period of

sentence is 01 month and 25 days (IFNP).

9. Learned counsel for appellant submits that the total

sentence period has already been expired and only the

remaining period of one month and 25 days in default of non-

payment of fine remains. Further he submits that conviction

should be maintained and the order of sentence be modified to

the extent that appellant should be released on the period

already undergone.

10. Appellant was apprehended in this case in the year 1996

and that time he was working as a clerk/typist in State Bank of

Patiala, thereafter, his services were terminated from the

aforesaid bank. Since, the learned counsel for the appellant

has not argued on merits, therefore, I am not discussing the

depositions made by the prosecution witnesses.

Learned counsel for the appellant has submitted that the

appellant has completed the total period of sentence of

03 years and has also completed 45 days in default of

payment of fine. Since, he had no means to pay the fine,

therefore, he remained in jail for further 46 days including

today, in default of the fine and the only period remaining is

01 month and 25 days.

11. In the interest of justice, while maintaining the

conviction, I modify the order dated 20.04.2009 to the extent

already undergone.

12. Personal Bond of appellant is cancelled and surety

stands discharged. Jail authorities are directed to release the

appellant forthwith, if no other case is pending against him.

13. In view of above, Criminal Appeal No.551/2009

stands disposed of, in the above terms.

SURESH KAIT, J July 25th, 2011 Mk