Ajit R. Kyal vs Central Bureau Of Investigation
2015 Latest Caselaw 5910 Del

#R-1
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 13.08.2015

+       CRL. APPEAL 131/2015

AJIT R. KYAL                                     ..... Appellant
                         Through:    Mr. Y. Das, Sr. Advocate with Mr. A.
                                     Vaish, Mr. A. Patnaik, Mr. D.B. Ray,
                                     Mr. Mark Wright and Mr. Ranjit,
                                     Advocates

                         Versus

CENTRAL BUREAU OF INVESTIGATION ..... Respondent

Through: Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Sanskriti Jain, Advocates CORAM:

HON'BLE MR JUSTICE SIDDHARTH MRIDUL

SIDDHARTH MRIDUL, J (ORAL)

CRL.M.(BAIL) No. 7048/2015

1. The present is an application under Section 389 of the Code of

Criminal Procedure, 1973, (for short, 'the Cr. P.C.') praying for suspension

of sentence imposed on the appellant/applicant during the pendency of the

appeal.

2. The appeal filed on behalf of the applicant herein challenging his

conviction and sentence under Sections 13(1)(d) and 13(2) of the Prevention

of Corruption Act, 1988 read with Sections 120B/420 IPC was placed on

Board for hearing by this Court by way of an order dated 26th February,

2015. This Court while listing the said appeal had also granted liberty to the

appellant to press his application for suspension of sentence in the event the

appeal is not heard for any reason. Since that time, the appeal itself has been

listed for hearing but has been adjourned for a variety of reasons.

3. On the 6th of August, 2015, this Court recorded the following order:-

"The learned counsel appearing on behalf of the CBI states that Mr Vivek Sinha, who was convicted along with the present appellants, is absconding and has not been available before the trial court for imposition of sentence.

Since the prime accused who was convicted along with the present appellants is absconding and has not made himself available for sentencing, it would not be appropriate to hear these appeals in the absence of an appeal that may be instituted by Mr Vivek Sinha. Further this court is currently hearing appeals preferred much earlier than the present one which was instituted only in this calendar year.

List in due course."

4. On a specific query, Ms. Rajdipa Behura, learned SPP appearing on

behalf of the CBI states that the co-convict Vivek Sinha who is currently in

the United States has yet not been apprehended by the authorities to be

produced before the trial Court for sentencing.

5. In view of the above, it is evident that the appeal filed on behalf of the

applicant cannot be heard and disposed of in the near future.

6. Apart from this, this Court is currently hearing appeals filed in the

year 2008 while the present appeal was instituted only in this calendar year.

7. In the decision of the Supreme Court in the case of Kashmira Singh

vs. State of Punjab reported as AIR 1977 SC 2147, which was followed in

Babu Singh and Ors. vs. State of U.P. reported as AIR 1978 SC 527, it was

observed that so long as the Supreme Court is not in a position to hear the

appeal of an accused within a reasonable period of time, it would ordinarily

unless there are cogent grounds for acting otherwise, release the accused on

bail in cases where special leave has been granted to the accused to appeal

against his conviction and sentence.

8. In the present case, the statutory appeal preferred on behalf of the

applicant challenging his conviction and sentence has already been admitted.

As aforesaid, there is no possibility of the appeal being heard within a

reasonable period of time.

9. Ms. Behura, learned SPP appearing on behalf of the CBI however

states that there are reasons as to why the sentence imposed on the applicant

ought not to be suspended. Ms. Behura would urge that the present is a case

under the Prevention of Corruption Act, 1988 and consequently, the sentence

imposed on the applicant should not be suspended as the applicant does not

deserve to be released on bail during the pendency of the appeal.

10. The charge against the applicant is that he entered into a conspiracy

with Mr. Vivek Sinha, the prime accused in the subject case to defraud the

complainant bank i.e. Bank of India to the tune of Rs. 2.59 crores

approximately thereby causing wrongful loss to the bank.

11. The applicant is convicted of having provided to the prime accused

Vivek Sinha the subject cheques which were presented by the latter for

discounting before the complainant bank.

12. In the instant case, it is observed that the applicant was on bail

throughout the trial and had never misused the concession granted to him.

13. It is further observed that the applicant was released on parole by this

Court from 29th May, 2015 and he surrendered before the jail authorities

before the expiry of the period of parole.

14. Mr. Y. Das, learned senior counsel appearing on behalf of the

applicant has invited my attention to the circumstance as recorded in the

impugned judgment dated 19.01.2015 that Mr. Vivek Sinha, the prime

accused and the co-convict of the applicant has already reimbursed the

complainant bank to the extent of overdraft extended to him in terms of a

settlement entered into between the parties.

15. It is also observed that it has not been urged that there is a possibility

that the applicant will flee from justice. It is further observed that the appeal

is not likely to be heard within a reasonable period of time.

16. It is relevant to mention here that the fine imposed by the trial Court

on the applicant has already been deposited before the trial Court.

17. In view of the foregoing facts and circumstances, it would be just

necessary and expedient to suspend the sentence imposed on the applicant

during the pendency of the appeal on the following terms:-

(i) the applicant shall furnish a personal bond in the sum of Rs. 50,000/-

with one surety of the like amount to the satisfaction of the trial Court;

(ii) the applicant shall not leave the country without the prior permission

of this Court;

(iii) the applicant shall surrender his passport, if not already surrendered;

(iv) the applicant shall attend each and every hearing of the Court as and

when the appeal is called out; and

(v) the applicant shall also inform this Court of any change in his

residential address.

18. With the above said directions, the application is disposed of.

CRL. APPEAL 131/2015

19. List the appeal in due course as per its own turn.

20. Copy of this order be given dasti to counsel for the applicant under

signature of the Court Master.

SIDDHARTH MRIDUL, J

AUGUST 13, 2015/sd