Balwant Pawar vs The State Of Madhya Pradesh
2021 Latest Caselaw 7625 MP

1         HIGH COURT OF MADHYA PRADESH :
                    BENCH AT INDORE
                     CRA No.6187/2017
                Balwant Pawar Vs. State of MP

Indore: Dated:-22/11/2021:-

Shri Manoj Munshi, learned counsel for the appellant. Shri Sudhansu Vyas, learned Panel Lawyer for the State. Shri Arjun Agrawal, learned counsel for the Objector. Heard on IA-7141-2021, first application filed under Section 389 (1) of Cr.P.C., for suspension of sentence and grant of bail moved on behalf of appellant - Balwant Pawar.

The conviction and sentence of the appellant - Balwant Pawar is as under:

Section        Act     Imprisonment       Fine        Imprisonment
                                                      in lieu of Fine
408            IPC     7 years RI         7,50,000    1   year    &     6
                                                      months
420            IPC     7 years RI         7,50,000    1   year    &     6
                                                      months RI
465            IPC     2 years RI         50000       6 months RI
467            IPC     Life time RI       15,00,000 3 years RI
468            IPC     7 years RI         7,50,000    1   year    &     6
                                                      months RI
471            IPC     2 years RI         50000       6 months RI
477-A          IPC     7 years RI         7,50,000    1   year    &     6
                                                      months

Learned counsel for the appellant by taking this Court to the prosecution story submits that as per the allegations, the appellant has misappropriated Rs.46,70,000/-. Appellant was working as a Time Keeper with the Objector/Industry. It is argued that the case of the prosecution was that appellant has drawn salary of sizable number of employees, who had already left the job, thereby committed embezzlement of their salary. However, no such list and proof of such employees was placed before the trial Court. The trial Court has not given iota of finding about employees. The trial Court has not given 2 HIGH COURT OF MADHYA PRADESH :

BENCH AT INDORE CRA No.6187/2017 Balwant Pawar Vs. State of MP

the names and numbers of such employees, who had allegedly left the job and their salary was allegedly drawn by the appellant.

Shri Munshi, learned counsel for the appellant submits that appellant was drawing only about 4000/- rupees per month. He didn't have resources to engage a lawyer before the Court below. Shri Munshi submits that he is also appearing pro bono for the appellant. A periodical/quarterly audit was being conducted in the factory which is evident from the statement of Shri Ram Gopal Agrawal, General Manager, H.R. (PW-1). A fault of this magnitude must have been detected in the audit. No bank account or property of appellant shows that he is being enriched by the said amount which is allegedly embezzled. The appellant is made scapegoat. The other officers was actually responsible.

The prosecution has not invoked Section 120-B of IPC. The defence arguments mentioned from para-19 to 26 of the judgment have not been answered by Court below. By taking assistance of doctrine of proportionality, it is submitted that imposition of life sentence is shockingly disproportionate/harsh. The appellant has already undergone 4 years 11 months in the custody.

The prayer is opposed by Shri Sudhansu Vyas, learned PL and Shri Arjun Agrawal, learned Objector. It is common ground that the appellant was involved in the embezzlement of huge amount. Shri Agrawal, learned counsel for the Objector by placing reliance on (2001) 7 SCC 69 [Rajinder Pershad (dead) by LRs vs. Darshana Devi (Smt)] argued that correctness of statement of a witness can be doubted by drawing his attention to that part of statement which is objected to as untrue. (2020) 8 SCC 645 (Preet Pal Singh vs. State of UP & Anr.) is relied upon to contend that bail at pre conviction stage and post conviction stage needs to be tested on different parameters.

      3          HIGH COURT OF MADHYA PRADESH :
                          BENCH AT INDORE
                           CRA No.6187/2017
                      Balwant Pawar Vs. State of MP

There exists no presumption of innocence once appellant is convicted. Thus, application for suspension be rejected.

We have heard the learned counsel for the parties and perused the record.

The appellant has undergone about 5 years in the custody. Prima facie, it is seen that the long drawn arguments and specific defence mentioned in para 19 to 26 of judgment is not answered with accuracy and precision. Prima facie, it also appears that a periodical audit was being conducted in the industry in question. Furthermore, the list of left out workers whose salary is allegedly withdrawn by the appellant was neither produced nor mentioned by the Court below. The final hearing of this appeal will take time.

Considering the aforesaid and without expressing any opinion on the merits of the case, we deem it proper to suspend the remaining jail sentence of the appellant.

Accordingly, IA-7141/2021 is allowed. Execution of jail sentence of the appellant is hereby suspended and it is ordered that appellant- Balwant Pawar be released on bail on his furnishing a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety of the like amount to the satisfaction of the trial Court with a further direction to appear before the District & Sessions Court, Dhar on 22.12.2021 and also on such other dates, as may be fixed by the District & Sessions Court, Dhar, in this regard during the pendency of this appeal.

CC as per rules.

     (SUJOY PAUL)                                 (PRANAY VERMA)
       JUDGE                                          JUDGE

soumya
           Digitally signed by
           SOUMYA RANJAN
           DALAI
           Date: 2021.11.24
           12:13:10 +05'30'