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2017 DIGILAW 596 (ORI)

PURNA CH. KISAN v. STATE OF ORISSA

2017-05-17

S.PUJAHARI

body2017
ORDER S. Pujahari, J. - I have heard the learned counsel for the petitioner-appellant and the learned Standing counsel appearing for the Vigilance Department. 2. This misc. case has been filed by the petitioner-appellant seeking suspension of conviction recorded against him under Section 13(2) read with 13(1) of the Prevention of Corruption Act, 1988 (for short "the Act") and Section 409 of the Indian Penal Code (for short "the IPC"). 3. As it appears, the petitioner-appellant was convicted and sentenced to undergo R.I. for 3 years and to pay a fine of Rs. 10,000/-, in default to undergo R.I. for a further period of one month under Section 13(2) read with Section 13(1)(c) of the Act and R.I. for 3 years and to pay a fine of Rs. 10,000/-, in default, to undergo R.I. for a further period of one month under Section 409 of IPC, by the learned Special Judge (Vigilance), Sambalpur vide its judgment dated 13.05.2016 in C.T.R. Case No.21 of 2004. 4. It has been contended by the learned counsel for the petitioner-appellant that the petitioner-appellant has been convicted in the aforesaid case for commission of temporary misappropriation inasmuch as the allegation is that there was shortage of cash received M.V. Section of the Unified Check Gate, Lahurachati at the time of vigilance raid. The conviction is perverse inasmuch as the money was available in another almirah and was immediately deposited with the time permitted under the Orissa Treasury Code. In this regard, the learned counsel for the petitioner-appellant has taken this Court through the evidence on record to indicate that the petitioner-appellant has proved his case that there was no misappropriation. In this regard, the learned counsel for the petitioner-appellant has placed a reliance on a decision of the Apex Court in the case of N.K. Illiyas v. State of Kerala, (2012) 12 SCC 748 . The prosecution case against the petitioner-appellant was also unsustainable in the eye of law due to delay in lodging of the report in view of the law laid down by the Apex Court in the case of Ramaiah v. State of Karnataka, AIR 2014 SC 3388 . The petitioner-appellant as such having proved his defence also by preponderance of probabilities, the judgment of conviction of the trial court was perverse. The petitioner-appellant as such having proved his defence also by preponderance of probabilities, the judgment of conviction of the trial court was perverse. In such premises unless the suspension of conviction is not done, the petitioner-appellant shall be materially prejudiced as the authority may remove him from service for such stigma of conviction. 5. On the other hand, the learned Standing counsel appearing for the Vigilance Department has opposed the aforesaid contention of the learned counsel for the petitioner-appellant placing reliance on a decision of the Apex Court in the case of K.C. Sareen v. C.B.I., Chandigarh, AIR 2001 S.C. 3320 wherein the Apex Court have held that public servant has been convicted on a corruption charge is not entitled to hold public office and suspension of order of conviction during pendency of appeal or revision is not permissible. Furthermore, it has also been submitted that temporary misappropriation also invites a charge under Section 409 of IPC and since the petitioner-appellant has been indicted in a charge under Section 409 of IPC and under the Act, staying of his conviction would sake public confidence in judiciary. He has placed reliance in this regard on a decision of the Apex Court in the case of Shyam Narain Pandey v. State of U.P., 2015 CRI.L.J. 250 wherein the Apex Court have held that only in exceptional cases of irreparable injury coupled with irreversible consequences leading to injustice, stay of conviction can be granted and loss of job which is source of livelihood is a no ground to stay conviction. 6. Before addressing the contention of the learned counsel for the parties, it would be apposite to mention here that the appellate court is not bereft of jurisdiction to suspend or grant stay order of conviction, but the same can only be done in exceptional cases. Coming to the case in hand, it appears that the trial court on a scrutiny of the evidence on record held the petitioner-appellant guilty of the aforesaid charges. The petitioner-appellant being a public servant is guilty of temporary embezzlement of public fund which was unexpected from him. 7. Coming to the case in hand, it appears that the trial court on a scrutiny of the evidence on record held the petitioner-appellant guilty of the aforesaid charges. The petitioner-appellant being a public servant is guilty of temporary embezzlement of public fund which was unexpected from him. 7. It is the contention of the learned counsel for the petitioner-appellant that since the conviction is prima-facie illegal, unless the conviction is suspended, the petitioner-appellant shall suffer irreparable loss inasmuch as he shall lose his job and his family will suffer, which has been objected by the learned counsel for the State, is no ground for suspension of the conviction. 8. On perusal of the materials on record, it appears to this Court that the learned Special Judge (Vigilance), Sambalpur taking note of all defence contentions that there was no misappropriation vis-?-vis the evidence on record and the law, recorded the conviction. A presumption of innocence which was available in favour of the petitioner-appellant during the trial has been demolished on such conviction by a judicial verdict. Looking into the materials on record, it cannot be said that the conviction is per se illegal. The contention raised that since there was delay in lodging the report and also the petitioner-appellant deposited the amount soon after and there was no material to hold him guilty can only be adjudged on the re-appreciation of the evidence on record on hearing the parties on merit. Hence, prima facie, it can be said that conviction was illegal or perverse. The fact remains that the petitioner-appellant is a public servant has since been convicted and his presumption of innocence which was available to him, has already been destroyed by the judicial verdict. The offence alleged against him is that he misusing the trust on him, committed serious offence. 9. The Apex Court in the case of Shyam Narain Pandey (supra) in paragraph-9 have held as follows :- "It may be noticed that even for the suspension of the sentence, the court has to record the reasons in writing under Section 389(1), Cr.P.C., 1973 Couple of provisos were added under Section 389(1), Cr.P.C., 1973 pursuant to the recommendations made by the Law Commission of India and observations of this Court in various judgments, as per Act 25 of 2005. It was regarding the release on bail of a convict where the sentence is of death or life imprisonment or of a period not less than ten years. If the appellate court is inclined to consider release of a convict of such offences, the public prosecutor has to be given an opportunity for showing cause in writing against such release. This is also an indication as to the seriousness of such offences and circumspection which the court should have while passing the order on stay of conviction. Similar is the case with offences involving moral turpitude. If the convict is involved in crimes which are so outrageous and yet beyond suspension of sentence, if the conviction also is stayed, it would have serious impact on the public perception on the integrity institution. Such orders definitely will shake the public confidence in judiciary. That is why, it has been cautioned time and again that the court should be very wary in staying the conviction especially in the types of cases referred to above and it shall be done only in very rare and exceptional cases of irreparable injury coupled with irreversible consequences resulting in injustice." Reiterating the aforesaid, again the Apex Court in the case of State of Maharashtra through C.B.I, Anti Corruption Branch, Mumbai v. Balakrishna Dattatrya Kumbhar, 2012 (12) SCC 384 , referring to two decisions in the case of Ravikant S. Patil v. Sarvabhabhouma S. Bagali, (2007) 1 SCC 673 and Navjot Singh Sidhu v. State of Punjab and another, (2007) 2 SCC 574 , have held as follows :- "15 the appellate court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the court as regards the evil that is likely to befall him, if the said conviction is not suspended. The court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. The court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done." 10. No doubt, for the aforesaid stigma of conviction is likely to lead removal from the service if the employer so desired and in that event, he as well as his family members shall suffer. The injury that the petitioner-appellant is likely to suffer i.e. removal from service cannot be said to be irreparable injury coupled with irreversible consequences resulting in injustice. In the case of Shyam Narain Pandey (supra), it has been held that lose of job is no ground to stay/suspend the conviction. 11. Therefore, the petitioner-appellant having not made out the exceptional case for stay/suspension of conviction, this Court is not inclined to stay/suspend such conviction and as such this Misc. Case being devoid of merit stands dismissed. Interim order dated 04.11.2016 stands vacated. Final Result : Dismissed