Orissa High Court
Prabin Ranjan Thakur vs State Of Odisha on 6 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMA No.259 of 2021
Prabin Ranjan Thakur .... Petitioner
Mr. A, K, Sahoo, Advocate
-Versus-
State of Odisha .... Opposite Party
Mr. K.K. Gaya, Addl. Standing Counsel
CORAM:
JUSTICE R.K. PATTANAIK
ORDER
Order No. 06.12.2021
01. 1. This is an application under Section(s) 389(2) read with
439 Cr. P.C. filed by the petitioner for suspension of conviction as
well as sentence directed by the court of learned Chief Judicial
Magistrate, Bhawanipatna, District Kalahandi in C.T. case No.552
of 2018 (T.R. No.5 of 2021) pending disposal of Criminal Appeal
No.05 of 2021 on the grounds stated therein.
2. Heard the learned counsel for the petitioner and learned
counsel for the State.
3. Perused the FIR and other connected papers besides the
judgment dated 18.09.2021 passed in C.T. Case No.552 of 2018
and also the impugned order dated 07.10.2021.
4. It is contended that the petitioner is in custody for about
two years and eleven months and has an excellent chance of
success in Criminal Appeal No.05 of 2021 and therefore, pending
its disposal, the order of conviction as well as sentence dated
18.09.2021 should be suspended in the interest of justice. It is
further contended that as per the norms of the Bank guidelines, all
the monitory transactions are required to go through the Cashier
and he was the Branch Manager of the concerned Bank at the
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relevant point of time and as far as the mischief is concerned, it has
perhaps been done by the other accused, namely, Lalit Sabar
without the knowledge of the petitioner and considering the
aforesaid back ground facts and period of detention, the sentence
and also the conviction ought to be suspended.
5. In so far as the allegation is concerned, the petitioner as the
Branch Manager of Utkal Gramin Bank, Moter Branch defrauded
the bank, inasmuch as, he along with the other accused managed to
carry out several authorized credits to the tune of Rs.1,23,30,180/-.
The transactions of the bank and the fraudulent credits effected by
the accused persons were sought to be proved before the court
concerned during trial and at the end, it resulted in the order of
conviction and sentence under Section(s) 409 read with 120 IPC. In
fact, the petitioner has been directed to undergo RI for seven years
and to pay of fine fifty thousand and in default to undergo RI for
six months more. In so far as the learned court below is concerned,
it admitted the appeal and though stayed the realization of the fine
amount of Rs.50,000/- but declined to suspend the sentence and to
release the petitioner on bail.
6. The question is, whether, the order of conviction and
sentence dated 18.09.2021 vis-à-vis the petitioner should be
suspended till disposal of Criminal Appeal No.05 of 2021? The
petitioner has been found guilty for the alleged misappropriation
which to the tune of Rs.1,23,30,180/-. The evidence from the side
of State before the court concerned is entirely documentary based.
Admittedly, the petitioner is in custody for nearly three years. As
far as the settled law is concerned, when a convict is sentenced to a
fixed period of imprisonment and asks for its suspension, normally
it should be considered liberally unless there are exceptional
circumstances exist; when sentence is life imprisonment, there could
be a different approach for sentence suspension; but if for any
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reason, sentence of limited duration cannot be suspended, every
endeavour should be made to dispose of appeal on merits,
otherwise the very valuable right of appeal would be an exercise in
futility by efflux of time which is what has been categorically
observed by the Supreme Court in the case of Bhagwan Rama
Shinde Gosai Vs. State of Gujarat reported in AIR 1999 SC 1859. It
is also settled law that order of conviction is to be suspended only
under exceptional circumstances which is not a routine affair.
7. Having regard to the law enunciated by the Supreme
Court in decision supra and catena of rulings, the Court is of the
considered view that the petitioner, who is now held guilty for
misappropriation of huge amount as Branch Manager of the
concerned Bank, which has been substantiated by documentary
evidence, notwithstanding the period of his detention during trial,
the order of conviction and sentence does not deserve to be
suspended. The allegation made in the FIR has, in fact, been
confirmed or reaffirmed by the order of conviction. No substantive
ground has really been made out in order to claim such a relief as
to suspension of sentence leave alone conviction directed in C.T.
No.552 of 2018.
8. Hence, it is ordered.
9. In the result, application under Section(s) 389(2) read with
439 Cr.P.C. pressed into service by the petitioner stands dismissed
for the reasons discussed herein above. However, the learned court
below is requested to expedite disposal of Criminal Appeal No.05
of 2021 preferably within a period of three months from the date
of receipt of a copy of the above order unless there is any
impediment.
(R.K. Pattanaik)
Judge
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