Madhya Pradesh High Court
Mahendra Darwai vs The State Of Madhya Pradesh on 11 May, 2023
Author: Sanjeev S Kalgaonkar
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 12215 of 2022
(MAHENDRA DARWAI Vs THE STATE OF MADHYA PRADESH)
Dated : 11-05-2023
Shri Ashok Tiwari - Advocate for the appellant.
Shri Vinay Sharma - Panel Lawyer for the State.
Heard on admission.
Appeal is admitted for hearing.
Heard on I.A No. 24408/2022, which is an application under Section
389(1) of Cr.P.C. for suspension of sentence and grant of bail to appellant
Mahendra Darwai arising out of judgment and conviction dated 10/12/2022
delivered in Sessions Trial No.300420/2015 by Second Additional Sessions
Judge, District Betul.
T h e appellant has been convicted under section 409 of I.P.C. and
sentenced to undergo rigorous imprisonment for five years with fine of
Rs.1,000/- and in default of payment of fine to undergo additional rigorous
imprisonment for six months.
Learned counsel for the appellant submits appellant was falsely
implicated in the matter. The prosecution had failed to prove that the appellant
was entrusted with public money which he had misappropriated. Further, in
absence of sanction for prosecution, the conviction is not sustainable. Final
disposal of instant appeal would take considerable time. Therefore, pending the
appeal, the appellant may be released on bail.
P e r contra, learned counsel for the State opposes the prayer for
suspension of sentence and grant of bail to the appellant.
Heard learned counsel for the parties at length and perused the record of
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 5/12/2023
10:27:36 AM
the court below and the judgment thereon.
Recently, Honourable the Apex Court in the case of Omprakash Sahni
v. Jai Shankar Chaudhary and another decided in Criminal Appeal
Nos.1331-1332 of 2023 order dated 2.5.2023 held that in order to suspend
the substantive order of sentence under section 389 of the Criminal Procedure
Code, there ought to be something apparent or gross on the face of the record,
on the basis of which, the Court can arrive at a prima facie satisfaction that the
conviction may not be sustainable. The courts must endeavour to see as to
whether the case presented by the prosecution and accepted by the trial court
can be said to be a case in which, ultimately the convict stands for fair chances
of acquittal. It was further held that the appellate court should not reappreciate
the evidence at the stage of section 389 of Cr.P.C. and try to pick up few
lacunas or loopholes here or there in the case of the prosecution.
The inconsistencies and lacunas pointed out by learned counsel for the
appellant has been dealt with by the Trial Court. The case was based on
documentary evidence which were duly proved by the prosecution. In view of
the judgment of Supreme Court in the case of Punjab State Warehousing
Corporation Vs. Bhushan Chander 2016 (4) SCR 537, the absence of
sanction for prosecution is insignificant in the case. Considering the lacunas and
inconsistencies, in totality, this court does not prima facie find that the
conviction would not be sustainable. Therefore, without commenting on merits
of the case, this court is not inclined to suspend the remaining jail sentence of
the appellant.
Accordingly, I.A No. 24408/2022 is rejected.
List this case for final hearing in due course.
Signature Not Verified
Certified copy as per rules.
Signed by: APARNA TIWARI
Signing time: 5/12/2023
10:27:36 AM
(SANJEEV S KALGAONKAR)
JUDGE
AT
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 5/12/2023
10:27:36 AM
