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Jharkhand High Court · body

2009 DIGILAW 86 (JHR)

Brij Shushan v. State of Jharkhand through CBI

2009-01-16

R.R.PRASAD

body2009
Order I.A No. 2334 of 2008: The interlocutory application bearing no. 2334 of 2008 has been filed under Section 389(1) of the Code of Criminal Procedure for staying the order of conviction recorded against the appellant under Section 120(B) read with Sections 420/ 467/468/471/477A of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act by the Special Judge, CBI in R.C. No. 2E of 1998(D). 2. The case of the prosecution is that one firm, namely, M/s Data Cables Pvt. Ltd was enjoying Cash Credit (Bill) Limit of 1.40 crores with the State Bank of India, S.I.B., Dhanbad. One N.C. Jain, Director of the said firm presented 17 fake bills to the Bank amounting to Rs. 2,01,53,981/- alongwith fake receipts showing delivery of mining cables to various units of B.C.C.L., Dhanbad. Believing the said bills and receipts to be genuine, the Bank made advance of Rs. 1.40 croresto the said N.C. Jain but when the bills were sent to the B.C.C.L. for realization of the amount, it was disowned and returned unpaid by the B.C.C.L. Therefore, a case was lodged by the CBI alleging therein that officials of the Bank including the appellant having entered into a criminal conspiracy with N.C. Jain advanced Rs. 1.40 crores to N.C. Jain against discounting of 17 fake bills of M/s Data Cables Pvt. Ltd. The CBI having investigated the case submitted charge-sheet against 9 accused persons including the appellant on the accusation that the appellant and other Bank officials intentionally did not follow the norms/rules of the Bank while processing and passing the said fake bills and that apart, the appellant did not reverse the entries in the record of the Bank within the stipulated period of 90 days and that when the forgery and cheating was detected, they did not institute any action against the said N.C Jail. 3. Learned counsel appearing for the appellant submits that it was the specific case of the appellant that he had not taken any part in the matter of. making payment against the bills and that when the matter came to the knowledge of the appellant, he made it known to the higher officials and being convinced with the innocence of the appellant, the Bank had written letter to the Central Vigilance Commission for withdrawal of the case so far this appellant is concerned. making payment against the bills and that when the matter came to the knowledge of the appellant, he made it known to the higher officials and being convinced with the innocence of the appellant, the Bank had written letter to the Central Vigilance Commission for withdrawal of the case so far this appellant is concerned. Assertion of this appellant gets established from the fact that the prosecution failed to produce any documents showing indulgence of "this appellant in any manner in the matter of payment to the co-accused against the bills, still the appellant was convicted on the premise that the appellant being Chief Manager of the Branch, officials of which had disbursed the amount to the co-accused, was supposed to look after the affairs of the Bank, though it had been brought to the notice of the Court that the entire amount has been realized and even high officials of the Bank had written to the Central Vigilance Commission to withdraw the case against this appellant and as such, the order of conviction is quite bad as apparently the order of conviction has been recorded on the principle of vicarious liability though it is not applicable in a criminal case. 4. Learned counsel further submits that after the order of conviction and sentence was recorded, notice has been served upon the appellant whereby the appellant has been asked to show cause as to why not he be discharged from the service and, therefore, if the order of conviction is not stayed, the appellant would be losing his service which is only source of his livelihood and, therefore, taking into consideration all this aspect of the matter, the order of conviction be stayed. 5. As against this, learned counsel appearing for the CBI submits that the appellant has been found guilty in a case relating to corruption and as such, the order of conviction recorded against the appellant in view of the decision rendered in a case of K.C. Sareen VS. CBI, Chandigarh [(2001)6 see 584] never warrants to be suspended. 5. As against this, learned counsel appearing for the CBI submits that the appellant has been found guilty in a case relating to corruption and as such, the order of conviction recorded against the appellant in view of the decision rendered in a case of K.C. Sareen VS. CBI, Chandigarh [(2001)6 see 584] never warrants to be suspended. However, it was replied on behalf of the appellant that in the said case it has been held that the power to suspend the order of conviction in terms of Section 389(1) can be exercised by the appellate or revisional court in exceptional cases and regard being had to the fact of the case where it has been demonstrated that the appellant has been convicted in absence of any material whatsoever showing indulgence of the appellant in any manner in the alleged act, this court can easily exercise that power by suspending the order or conviction. 6. No doubt it is true that the Hon'ble Supreme Court in a case, referred to above, has observed that the appellate or revisional court does have power to suspend the order of conviction in exceptional cases having regard to all aspects including ramification of such suspension but at the same time, keeping in view the dimension of the corruption spread among the public servant, it has been observed as follows:- "The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellant court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under the disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision." 7. Admittedly, the order of conviction and sentence has been recorded against the appellant on the charges of corruption though it was sought to be established on behalf of the appellant that charge of corruption never gets proved as against the appellant but the submission advanced in support of the innocence of the appellant would be considered at the time of hearing of the appeal itself. 8. 8. Keeping in view the observation made by the Hon'ble Supreme Court, it would not be desirable to suspend the order of conviction. Accordingly, the prayer made in the interlocutory application for suspension of the order of conviction is hereby rejected. However, keeping in view facts and circumstances of the case, it would be desirable that the appeal itself be heard at the earliest. Let this appeal be fixed for hearing in the first week of March, 2009.