Vijay B. Borar vs The State (Through Cbi)
2012 Latest Caselaw 561 Del

*                THE HIGH COURT OF DELHI AT NEW DELHI

         +CRL.M.B.No.2134/2011 in Crl.Appeal No. 1300/2011

                                                       Reserved on : 18.01.2012
                                                     Pronounced on :27.01.2012

VIJAY B. BORAR                                                 ...... Appellant

                                  Through:        Mr.Sidharth    Luthra, Sr.
                                                  Advocate with Mr. Ashok
                                                  Chhaparia, Advocate.

                                           Versus

THE STATE (THROUGH CBI)                                    ...... Respondent

                                  Through:        Mr.   P.K.Sharma,    Standing
                                                  Counsel for CBI.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

Crl. M.B. NO. 2134/2011 (under section 389 Cr.P.C. for suspension of sentence)

1. The appellant was convicted and sentenced to RI of one year and fine

of Rs. 50,000/- under section 120-B IPC read with section 420 IPC and

Section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act

and RI of 4 years and fine of Rs. 5,00,000/- under section 420 IPC. Present

application is filed for suspension of sentence during the pendency of the

appeal. The appellant /convict is in JC since 02.09.2011. The main grounds

on which suspension of sentence is sought are that the appellant is a

Chartered Accountant by profession and has been practicing since 1972 and

further that he was exonerated by the Council of Chartered Accountants of

India in the complaint lodged against him by the State Bank of Saurashtra.

It was also submitted that he has not obtained any pecuniary benefits in the

case. It was also sought to be presented that he is aged about 63 years and is

a heart patient having undergone heart surgery in 2006 and in addition

continuing medical treatment, he is suffering from sugar and B.P. problems.

It was also submitted that during trial the appellant remained on bail and did

not misuse the liberty granted to him.

2. Per contra, the learned Standing Counsel for the CBI strongly

opposed the suspension of sentence of the appellant.

3. The appellant was one of the co-accused in the CBI case. The

allegations against the accused persons are that they entered into a criminal

conspiracy among themselves and cheated State Bank of Saurashtra to the

extent of more than Rs.60.00 lakh by abuse of official position of accused/

public servant A.K. Mishra who was the Branch Manager of the said bank.

4. As per the charge-sheet, accused R.P. Mathur and his wife Anita

Mathur maintained accounts with the bank in the names of their firm

Radhika Leather Fashions since 07.06.1991 and Ruchi Fashions since

31.05.1991 and amounts of Rs.46.00 lakh and 90.00 lakh were outstanding

on these accounts since 1993 and 1992 respectively due to purchase of false

bills by the bank in both of these accounts. To make the payment of the

outstanding amounts, the accused persons made a plan under which accused

Brij Mohan Bhatnagar, an employee of accused R.P. Mathur opened an

account in the name of M/s Kay Bee & Co. on 29.03.1994 wherein a cheque

dated 30.01.1994 for Rs. 60,27,840/-, issued by the petitioner as Director of

M/s Swastik Consultants Pvt. Ltd. and without any business transaction, was

deposited and the same was purchased by the accused A.K. Mishra, the

branch Manager of the bank without any authorization from the bank. He

granted proceeds in the account of M/s. Kay Bee & Co. on 31.03.1994. The

said cheque was received back unpaid when it was sent for collection to the

drawer's bank due to "insufficient funds". Another cheque of Rs.

54,60,000/- was also deposited in the same account by accused R.P. Mathur

on 31.03.1994 and after purchasing this cheque also the proceedings were

granted to the account of Kay Bee & Co. on 31.03.1994. A.K. Mishra

purchased the said cheque, though, he had no powers to purchase the cheque

beyond the value of Rs.50,000/-. Accused Brij Mohan Bhatnagar, as

proprietor of M/s Kay Bee & Co; issued a cheque for Rs. 47,25,000/- in

favour of M/s Radhika Leather Fashions which was granted on 31.03.1994

and also issued two cheques for Rs.20.00 lakh each and amount of Rs.40.00

lakh was deposited in the account of M/s Radhika Leather Fashions on

31.03.1994. Brij Mohan Bhatnagar also issued further cheque for Rs.

26,75,000/- on 31.03.1994 in favour of Ruchi Fashions which was also

granted on the same day. Ruchi Fashions was sanctioned bill purchase limit

by zonal office of State Bank of Saurashtra on 07.09.1992 under which

though the bogus bills amounting to Rs.19,15,540/- were purchased between

June 1992 to December 1992 and the proceedings were granted in the

account of Ruchi Fashions.

5. The pleas that were taken by the appellant herein was that in the

complaint filed by the Institute of Chartered Accountant of India, he has

been exonerated by the Council and that the cheque of Rs.60,00 lakh dated

31.03.1994 was stolen from his office. The plea regarding that he was

exonerated by the Council has been dealt with by the learned ASJ and he has

rightly held that the same would not amount to termination of criminal

proceedings against the appellant given the fact that the appellant had taken

different stands at different places with regard to his plea of the cheque

having been stolen. It was specifically noted that in his statement made

before the Court under section 313 Cr.P.C. he had stated that he came to

know about the missing of the cheque when he received the notice from the

Central Bureau of Investigation whereas his stand before the Institute was

that this fact remained un-noticed till he received recovery notice from the

bank dated 11th August 1994. The First Information Report was registered

against him in December 1995 and so the investigation could not be

commenced prior to that and that being so, his plea regarding the cheque

was stolen was, apparently, not believable.

6. It is admitted case that R.P. Mathur was frequent visitors to his office.

That would prima facie show he is having good connection with him. The

fact that the appellant did not name R.P. Mathur before the Council as also

before the DRT proceedings as the one who stolen the said cheque would

also prima facie point finger towards his involvement in seeking to take

precaution to protect the interest of R.P. Mathur.

7. The appellant was not a layman but was professionally qualified

Chartered Accountant and was expected to know all the commercial

transactions. It was, apparently, unbelievable that he would have left the

said cheque blank and would not bother to see for several months. Though,

it is not desirable to make comments on the merits of the case, but, having

gone through the impugned judgment I do not see apparently any ground to

arrived at a conclusion that the appellant was innocent and was entitled to be

absolved. On the other hand, prima facie he seems to be a part and parcel of

the conspiracy of the commission of the offence.

8. With regard to the plea that he required some medical treatment, it

may be stated that his medical treatment can be suitable taken care of by the

authorities of the jail administration.

9. No sufficient ground has been made out for suspension of sentence

under these circumstances.

10. In view of my above discussion and having regard to grave and

serious nature of the offence the period of sentence of the appellant cannot

be suspended. The application is hereby dismissed.

M.L. MEHTA (JUDGE)

January 27, 2012 awanish