Ashish Kumar Diwan vs Union Of India
2021 Latest Caselaw 8380 MP

                                                                       1                           CRA-6871-2021
                                           The High Court Of Madhya Pradesh
                                                    CRA No. 6871 of 2021
                                                          (ASHISH KUMAR DIWAN Vs UNION OF INDIA)


                                   Jabalpur, Dated : 07-12-2021
                                          Shri Nishant Jain,counsel for the appellant.

                                          Shri J.K. Jain, ASG for the respondent / CBI.

Heard on the question of admission.

Appeal is admitted for final hearing.

Also heard on I.A. No.20424/2021, which is an application under Section

389(1) of Cr.P.C. for suspension of the custodial sentence passed against appellant Ashish Kumar Diwan.

This appeal has been preferred against the judgment dated 11.10.2021 passed by Special Judge, CBI, Bhopal in Special Case No. 01/2013, whereby learned Special Judge found the appellant guilty for the offence punishable under Section 120-B IPC and sentenced him to undergo R.I. for 2 years with fine of Rs. 5,000/- and under section 420-B r/w section 120B of IPC sentenced him to under go R.I. for 4 years with fine of Rs. 5,00,000/-with default stipulation.

Learned counsel for the appellant submitted that there is no evidence on record to show that appellant committed fraud or prepared any forged document. Learned trial court without appreciating the evidence properly, wrongly convicted the appellant for the aforesaid offences. There are several omissions and contradictions in the evidence adduced by the prosecution. The appellant has been in custody since 11.10.2021. Hence prayed for suspension of the jail sentence and release of the appellant on bail since the hearing of this appeal will take time.

On the other hand, learned counsel for the respondent - CBI opposed the prayer and submitted that from the prosecution evidence the guilt of the appellant is proved beyond reasonable doubt, therefore, learned trial Court has rightly convicted and sentenced the appellant.

This Court has considered the respective submissions made by the Signature Not Verified SAN

Digitally signed by NAVEEN KUMAR SARATHE Date: 2021.12.08 10:34:38 IST 2 CRA-6871-2021 parties and perused the impugned judgment passed by the trial Court. The maximum sentence of imprisonment awarded to the appellant is only four years. Hon'ble Supreme Court in the case of Bhagwan Rama Shinde Gosai Vs. State of Gujrat, ( 1999) 4 SCC 421 has held that when a person is convicted and sentenced to a short term imprisonment, the normal rule is that

when his appeal is pending, the sentence should be suspended by enlarging appellant on bail and rejection can only be by way of exception. Apex Court in the case of C. Sareen v. CBI, Chandigarh, (2001) 6 SCC 584 held that no doubt when the appellate Court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. Apex Court in the case of N. Ramamurthy Vs. State of Central Bureau Of Investigation, A.C.B., Bengaluru, 2019 Cri.L.J. 2929 also held that in cases where an appeal could not be heard soon after the filing of the appeal, the superior Court should normally suspend the sentence of imprisonment until disposal of the appeal.

So looking to the facts and circumstances of the case, the term of imprisonment awarded, the conduct of appellant when on bail during the trial and the fact that the appellant is in custody since 11.10.2021 and according to listing policy the hearing of this appeal will take time, the application is allowed and it is directed that the execution of the jail sentence alone passed against the appellant shall remain suspended during the pendency of this appeal and he be released on bail upon furnishing personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand only) with one surety in like amount to the satisfaction of the trial Court for his appearance before the Registry of this Court on 21/03/2022 and on such further dates as may be fixed in this behalf by the Registry during the pendency of this appeal.

Signature Not Verified List the matter for final hearing in due course.

  SAN




Digitally signed by NAVEEN KUMAR
SARATHE
Date: 2021.12.08 10:34:38 IST
                                                                   3               CRA-6871-2021
                                             C.C. as per rules.


                                                                      (RAJEEV KUMAR DUBEY)
                                                                             JUDGE

                                   sarathe




Signature Not Verified
  SAN




Digitally signed by NAVEEN KUMAR
SARATHE
Date: 2021.12.08 10:34:38 IST