Suresh vs The State Of Madhya Pradesh
2023 Latest Caselaw 9075 MP

                                       1

IN THE         HIGH COURT OF MADHYA PRADESH
                      AT I N D O R E
                                 BEFORE
               HON'BLE SHRI JUSTICE VIVEK RUSIA

                      ON THE 19th OF JUNE, 2023

                  CRIMINAL APPEAL No. 6883 of 2023
                               SURESH SEN

                                     Vs.

                             STATE OF M.P.

                             ********

Shri Nilesh Dave, Advocate for the appellant.

Shri Amit Rawal, G.A. for respondent/State.

******** Heard on the question of admission.

2. Admit.

3. Also heard on I.A.No.7532/2023, application for suspension of jail sentence of appellant, who has been convicted vide judgment dated 9.5.2023, passed by the learned Special Judge (P.C.) Act, District Neemuch for commission of offence punishable under Section 13(1)(d)(i) read with Section 13(2) of Prevention of Corruption Act and sentenced to undergo 4 years RI with fine of Rs.10000/-, under Section 120-B of IPC, sentenced to undergo 2 years RI with fine of Rs.2000/-, under Section 420 read with Section 120-B of IPC, sentenced to undergo 4 years RI with fine of Rs.5000/-, under Section 467 read with Section 120-B of IPC, sentenced to undergo 10 years RI with fine of Rs.10000/-, under Section 468 read with Section 120-B of IPC, sentenced to undergo 4 years RI with fine of Rs.5000/- and under Section 471 read with Section 120B of IPC, sentenced to undergo 2 years RI with fine of

Rs.2000/-, with default stipulation on each count.

4. As per prosecution story, one Kailash Gehlot was under suspension from 19.3.2008 to 15.5.2008 in Nagar Palika Neemuch. During his suspension period, he initiated a note-sheet dated 9.4.2008 for purchase of 200 casing pipes. On the basis of note-sheet a NIT was published in the newspaper. Three suppliers submitted their bids and out of which bid of Sai Constructions of the appellant was found lowest. After the negotiation price Rs.1210 per pipe was sanctioned by Palika. Accordingly the supply was made and the payments were made to Rakesh Jain, Proprietor of the firm. After completion of the process a complainant (PW.6) made a complaint that during suspension period Shri Kailash Gehlot misused his official position for purchase of pipe and caused the loss of Rs.155477 to the Nagar Palika Neemuch. Along with Shri Kailash Gehlot, 11 employees who participated in the tender process supply, payment of bills were also made accused with the aid of Section 120-B of IPC. The supplier Rakesh Jain also made accused along with them. The trial initiated in the year 2008 and during this period out of 13, 5 accused expired. The main accused Kailash Gehlot also expired and the trial was abated against him. The prosecution examined 42 witnesses and exhibited 253 documents as Exhibit P/1 to Exhibit P/258. In defence 4 documents were got exhibited. After 15 years the trial was concluded and vide judgment dated 9.5.2023 the remaining alive 8 accused have been convicted as stated above who have preferred these six appeals before this court.

5. Learned counsel for the appellant has submitted no finding has been recorded that Kailash Gehlot while working as suspended CMO misused his official position and committed a loss of Rs.1,55,447 to Nagar Palika by the learned trial court, therefore conviction of the appellant with the aid of Section 120-B is bad in law. It is not a case of prosecution that without there being any tender process or supply of material, the amount of Rs.1,55,447 was paid to

the firm. There might be some procedural irregularities in issuing of the tender process but no financial loss has been caused to the Nagar Palika as the supply of pipe was made and thereafter payment was made. No documents were forged to make the payment without supply therefore, conviction under Section 468, 467 of IPC is also unsustainable. There are omnibus allegations against all the accused. No specific role has been assigned to them for their independent conviction under Section 420, 467, 468, 471 of IPC and Section 13(1)(d)(i) read with Section 13(2) P.C. Act. They have already suffered agony of trial for 15 years and most of them have either dead or retired and not keeping good health. Hence it is prayed that application for suspension of jail sentence be allowed.

6. Learned Govt. Advocate has opposed the prayer for suspension of jail sentence and submitted that the trial court has examined the various irregularities committed by them while procuring 200 casing pipes. It is well reasoned judgment and not liable to interfered but during trial all were on bail.

7. On due consideration of the aforesaid, I.A.No.7532/2023, is allowed and it is directed that upon depositing the fine amount (if not already paid) and on furnishing a personal bond to the tune of Rs.50,000/- by the appellant with one solve surety in the like amount to the satisfaction of the trial court, the substantive jail sentence of the appellant shall remain suspended till the final disposal of the appeal and he shall be released on bail.

8. Consequently, I.A.No.8077/2023 and I.A.No.7530/2023, stand disposed off.

9. List for final hearing in due course.

(VIVEK RUSIA) JUDGE SS/-

Digitally signed by SHAILESH MAHADEV SUKHDEVE Date: 2023.06.20 17:13:03 +05'30'