Madhya Pradesh High Court
Amit Kumar Choubey vs The State Of Madhya Pradesh on 31 May, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 11997 of 2023
(AMIT KUMAR CHOUBEY Vs THE STATE OF MADHYA PRADESH)
Dated : 31-05-2024
Shri Aseem Trivedi - Advocate for the appellant.
Shri Raghuvar Prajapati - Panel Lawyer for the State.
Heard on I.A No.22512/2023, which is first application under Section
389(1) of Cr.P.C for suspension of sentence and grant of bail moved on behalf
of appellant.
The appellant has been convicted for the offence punishable under
Section 409 IPC and sentenced to undergo R.I. for 10 years with fine of
Rs.25,000/-, with default stipulation.
Learned counsel for the appellant submits that the maximum jail sentence
of appellant is of 10 years R.I. and the appeal would take considerable time to
conclude. He is ready to furnish adequate surety and shall abide by the
directions and conditions, which may be imposed by this Court. Hence, it is
prayed that the application for suspension of sentence may be considered.
Learned counsel for the State has opposed the application and prayed for
its rejection.
Heard counsel for the parties, perused the judgment and record of the
court below.
The present I.A. is first in sequence in which the prayer has been made
for suspension of sentence.
The grounds on which this application has been argued are that the entire
prosecution story is doubtful and there is no reliable evidence to show that the
appellant was working in the complainant-Company and that he failed to deposit
the collected amount in the bank accounts of Company. It is claimed that the
trial court itself found that there was variance in the allegation made and the
evidence produced on the amount of embezzlement; that most of the
prosecution witnesses have turned hostile; that there was a delay of almost two
months in lodging the FIR; that the computer generated receipt were taken into
consideration without there being a certificate of Section 65-B of the Indian
Evidence Act available on record and for this, he has placed reliance on the
decision of Division Bench delivered in the case of State of Madhya Pradesh
v. Smt. Ramita Jawada (Criminal Appeal No.2111/2008) . It has also been
proposed that the appellant is willing to deposit Rs.5,00,000/- against the
alleged embezzled amount for seeking suspension of sentence.
State has vehemently opposed the application not only orally but also by
filing written objections.
The appellant in his examination under Section 313 Cr.P.C. has admitted
the fact that he was posted under the complainant-Company at the post of
Credit and Collection Officer from March to April, 2020 and was looking after
the affairs of districts Panna and Chhatarpur. He has also admitted that his
Company was in the business of financing tractors though he has denied that
his task included collection of amount but the prosecution has examined
Investigating Officer Balbir Singh (P.W.12) who has claimed that tablet and blue
tooth printer provided by the Company to appellant were seized which are
marked as Articles "A" and "B" and from those gadgets the receipts of Ex.P-9
were obtained. These receipts suggest that the appellant was collecting money
from the customers in whose favour the loan was financed by the company.
Counsel for the appellant has raised the objection that these receipts,
marked as Ex.P-9, were inadmissible in evidence for the simple reason that the
certificate of Section 65-B of the Indian Evidence Act was not obtained from
the concerned but here Balbir Singh (P.W.12) has claimed that these receipts
were generated from the gadgets seized from the appellant and the original
gadgets were produced in evidence. Thus, the objection is not sustainable
prima facie in the light and scope of Section 65-B of the Indian Evidence Act.
The crime herein has a financial implication and merely on the ground of
delay, it cannot be successfully argued that the case was falsely made out.
Detection of a financial scam may take time. It is a case based upon the
documentary evidence and the hostile testimony of some of the witnesses
cannot be a ground to question the criminal liability.
According to the prosecution, an amount of almost Rs.30,00,000/- was
embezzled and the record reveals that almost Rs.6,00,000/- was paid by the
appellant. This could explain the observation of difference in embezzled amount
made by trial court in paras 34 and 35 suggesting that the embezzled amount
was only around Rs.24,00,000/-. A proposal has been given by the appellant
that he is willing to pay Rs.5,00,000/- but looking to the amount involved and
the act of appellant, this court does not consider it appropriate to allow the
present application, subject to the condition of payment.
Counsel for the appellant submitted that the appeal may take considerable
time for its decision but this court was not in agreement with this submission.
He, therefore, was asked to inform the date on which the appeal may be fixed
for final hearing but he could not apprise the court on that.
The decision passed in Criminal Appeal No.2111/2008 relates to the
appeal filed against acquittal and the observations made therein were fact based.
Here, not only the period of embezzlement but also the amount involved were
clearly established, therefore, prima facie no case is made out for suspension
of sentence.
The application is accordingly dismissed.
List this criminal appeal for final hearing on 20.8.2024.
(ANURADHA SHUKLA)
JUDGE
ps
Date: 2024.06.03 11:04:51 +05'30'
