N.K. Nagaich vs The State Of Madhya Pradesh
2023 Latest Caselaw 10073 MP

                                                               1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT GWALIOR
                                                        CRA No. 8422 of 2022
                                               (N.K. NAGAICH Vs THE STATE OF MADHYA PRADESH)

                          Dated : 04-07-2023
                                   Mr. R.K. Sharma - Senior Advocate with Mr. M.K. Chaudhary -

                          Advocate for the appellant.
                                   Mr. Lokendra Shrivastava - Public Prosecutor for the respondent -

State.

Heard on I.A.No.6141/2023, first application under Section 389 (1) of Cr.P.C. for suspension of sentence and grant of bail moved on behalf of

appellant - N.K. Nagaich.

Appellant has been convicted by Special Judge (Prevention of Corruption Act), District Morena (M.P.) vide judgment dated 23.08.2022 passed in Special Session Trial No.2900039/2016 for commission of offence punishable under Sections 409/120-B of IPC and under Sections 13 (1) (c) (d) r/w 13 (2) of Prevention of Corruption Act and sentenced to suffer five years RI with fine of Rs.25,000/-, with default stipulation.

Learned counsel for the appellant submits that it has been alleged against the appellant that he being Block Organiser along with other co-accused

persons after hatching conspiracy committed embezzlement of scholarship amounting to Rs.44,450/- by issuing cheques in the fictitious names of students. He further submits that this case has been instituted only on the basis of physical verification report, wherein Ishwara High School, Kot Sirthara Kelaras, District Morena was found to be closed. He further submits that in the month of March all examinations of the school have been ended, therefore, no student came to the school, hence, the school was found to be closed. Ramesh Signature Not Verified Signed by: BARKHA SHARMA Signing time: 05-Jul-23 11:42:57 AM

Chandra Joshi (PW-1) has admitted that the aforesaid school was in existence in his house at the relevant period of time. The cheques said to be forged and fabricated have not been seized in the matter. As per statement of Investigating Officer Satish Sharma (PW-17), scholarship amounting to Rs.44,450/- was deposited in the bank account of school and there is nothing on record, which shows that the said scholarship was deposited in the joint account of appellant. He further submits that the appellant did not signed any cheque and District Organiser vide order dated 20.08.1996 had stayed the disbursement of scholarship, hence, no scholarship was disbursed in the year 1995-1996. In view of the above, no presumption can be drawn against the appellant and his

conviction under Section 401/120-B of IPC cannot be sustained.

Learned counsel for the appellant further submits that there is nothing on record against the appellant with regard to the offence punishable under Sections 13 (1)(c)(d) read with Section 13(2) of Prevention of Corruption Act. Admittedly, prosecution sanction has not been obtained against the appellant with regard to these offence, therefore, his conviction under aforesaid Sections are also not sustainable. The appellant is in custody since the date of judgment and during trial he remained in jail for 36 days and his actual jail incarceration is about one year. There is no likelihood of hearing of this appeal in near future. Therefore, his remaining jail sentence be suspended and he be enlarged on bail.

Learned counsel for the respondent - State has opposed the prayer and submits that during physical verification, Ishwara High School, Kot Sirthara Kelaras, District Morena was not found in existence at the relevant period of time. The appellant being Block Organiser in connivance with other co-accused persons after getting sanctioned of the scholarship in the fake names of 157 students got deposited the amount of Rs.44,450/- and thereafter withdrew the Signature Not Verified Signed by: BARKHA SHARMA Signing time: 05-Jul-23 11:42:57 AM

same by joint signature and misappropriated the same. Prosecution case is based on documentary evidence and prosecution has proved its case beyond reasonable doubt. Offence alleged against the appellant are serious in nature. In view of the aforesaid, the appellant is not entitled to be released on bail.

Heard learned counsel for both the parties and perused the record. Having considered rival submissions and material pointed out by learned counsel for the appellant, specially with regard to the custody period of the appellant and also the fact that there is no likelihood of hearing of this appeal in near future, without expressing any opinion on merits of the case, the application is allowed and the remaining jail sentence of the appellant is suspended.

I t is directed that subject to depositing the fine amount, if already not deposited, appellant shall be released on bail on furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) along with separate solvent surety in the like amount to the satisfaction of Trial Court, for his appearance before the Registry of this Court firstly on 24.08.2023, and on such other dates, as may be fixed by the Registry in this regard, till final disposal of this appeal.

I.A.is allowed.

C.C. as per rules.

(SATYENDRA KUMAR SINGH) JUDGE

bj/-

Signature Not Verified Signed by: BARKHA SHARMA Signing time: 05-Jul-23 11:42:57 AM