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2022 DIGILAW 1355 (MP)

Umrao Singh Mourya v. State of Madhya Pradesh

2022-11-14

SATYENDRA KUMAR SINGH

body2022
JUDGMENT 1. Shri A.S. Rathore and Shri Arpit Singh, learned counsel for the appellant. Shri R.S. Raghuvanshi, learned counsel for the respondent/SPE. Heard on I.A. No.5390/2022, which is an application filed under Section 389(1) r/w 482 of Cr.P.C. on behalf of the appellant Umrao Singh for suspension of his conviction. The learned Trial Court i.e. the Court of Special Judge (Prevention of Corruption Act), Indore vide impugned judgment dated 24.9.2021, passed in Special Case No.300007/2012, has convicted the appellant under Section 120-B and 420 of IPC and sentenced him to undergo 4 years' RI with fine of Rs.50,000/- and four years' RI with fine of Rs.50,000/- with default stipulation. 2. Prosecution case, in brief, is that appellant Umrao Singh, in connivance with other co-accused persons made a conspiracy to obtain loan under Consortium Bank Scheme (CBC scheme) of M.P. Khadi Gramodyog Board. He without filling up the complete application form (Ex.P/38) and without submitting original documents of his property, proof of his age, population certificate of the village and no objection certificate of the concerned Gram Panchayat obtained loan amounting Rs.5,85,000/- under the above scheme for the purposes of establishing agricultural equipment manufacturing unit. He being member of OBC category was entitle for 25% margin money, but obtained 30% margin money amounting Rs.2,70,000/- through various cheques and thereafter, did not repay the installments of above loan amount within time. 3. Learned counsel for the appellant submits that appellant is renowned political figure. He was Sarpanch of Gram Panchayat, Bachoda; President of Janpad Panchayat, Depalpur; President of Dugdh Sahakari Samiti, Bachoda and President of Indore Sahakari Dugdh Sangh Maryadit, Indore. He wishes to contest bye-election of M.P. Legislative Assembly in the year 2023. The conviction and sentence passed against him is a disqualification under Section 8 of the Representation of People Act, 1951. In a democratic set up, restriction on exercise of such right of contesting election can be considered hardship to aspirants, if the conviction and sentence arguable to be fabulous and malice, in other words, where the appellant has fair chance to succeed in the appeal against conviction and sentence. It is apparent from the record that the appellant after complying with the required formalities obtained loan under CBC scheme. It is apparent from the record that the appellant after complying with the required formalities obtained loan under CBC scheme. Appellant in his application form, specifically disclosed that he is a member of OBC Category and margin money was sanctioned to him by the State Level Appraisal Committee, therefore, it cannot be said that he obtained the same illegally. 4. Learned counsel for the appellant further submits that it has been found proved in the impugned judgment that appellant executed mortgage deed of his property amounting Rs.19,86,000/- as surety and after obtaining the loan amount established Mourya Industries at Gram Bachoda, Gautampura, Depalpur, which remain functional for quite some time. It has also been found proved in the impugned judgement that appellant had submitted photocopy of his mark sheet of Higher Secondary School Examination Board apart from his affidavit in support of his age proof alongwith his loan application form. Mayuri Verma, Chief Municipal Officer, Nagar Panchayat, Gautampura has specifically deposed that at the relevant time the population of the village Gautampura was 10,104. I.O., K.S. Bhuriya, (PW-22), in para 37 of his cross-examination, admitted that during investigation 'No Objection Certificate', issued by Nagar Parishad, Gautampura (Ex. E/75) was received by him. Admittedly, appellant has repaid the whole outstanding loan amount and obtained 'No Dues Certificate' dated 27.11.2010 (Ex. D/83), issued by M.P. Khadi Tatha Gramodyog Board. Therefore, findings in this regard that he has not filed his age proof, population certificate and no objection certificate of the concerned Gram Panchayat are not sustainable at all. In view of the aforesaid his conviction under Section 120-B and 420 of IPC is not sustainable. He has fair and fabulous chance to succeed. In view of the aforesaid his conviction will suffer serious prejudice, therefore, the same be suspended. 5. Learned counsel for the appellant has placed reliance on the judgment of this Court in the case of Shakuntala Khatik Vs. State of M.P., I.L.R.[2020] M.P.2468. 6. Learned counsel for the respondent/State has vehemently opposed the prayer and submits that it is apparent from the record that appellant had submitted undated incomplete loan application form. He did not submit any original document with regard to the proof of his age, population certificate of the village and no objection certificate of the concerned Gram Panchayat. 6. Learned counsel for the respondent/State has vehemently opposed the prayer and submits that it is apparent from the record that appellant had submitted undated incomplete loan application form. He did not submit any original document with regard to the proof of his age, population certificate of the village and no objection certificate of the concerned Gram Panchayat. Admittedly, he is a member of OBC category and was not entitled for 30% margin money even then in connivance with other co-accused persons he obtained 30% margin money without paying regular installments. Since 1997 till 2007, he did not repay the installments regularly and deposited only Rs 2,61,028/-. The appellant has not made out any cogent and strong ground warranting the interference of this court to suspend his conviction. In such cases conviction cannot be suspended as held by the Hon'ble Apex Court in the case of K.C.Sareen Vs. CBI, Chandigarh (2001) 6 SCC 584 . He has also placed reliance upon the judgments passed by the Hon'ble Apex Court in the case of State of Maharashtra Vs. Gajanan & Anr. (2003) 12 SCC 432 ; Union of India Vs. Atar Singh & Anr. (2003) 12 SCC 434; Central Bureau of Investigation Vs. M.N.Sharma (2008) 8 SCC 549 ; State of Maharashtra Vs. Balakrishna Dattatrya Kumbhar (2012) 12 SCC 384 and Ashok Vasuniya Vs. State of M.P. (SLP (Cri.) No.512/2021 decided on 25.1.2021. 7. Heard learned counsel for both the parties at length and perused the record. 7. There is no dispute on the point that law has been settled that power of suspension of conviction is vested to the appellate court under Section 389(1) of Cr.P.C., but this power should be exercised in a very exceptional cases having regard to all aspects including ramification of such suspension. Therefore, all citations cited in this regard by the appellant as well as respondent are not required to be cited here. This matter relates to the offences punishable under the Indian Penal Code as well as under the Prevention of Corruption Act, therefore, observations made by Hon'ble the Apex Court in the case of K.C. Sareen Vs. CBI (supra) is relevant, which is as follows :- "11. This matter relates to the offences punishable under the Indian Penal Code as well as under the Prevention of Corruption Act, therefore, observations made by Hon'ble the Apex Court in the case of K.C. Sareen Vs. CBI (supra) is relevant, which is as follows :- "11. The legal position, therefore, is this: Though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, de hors the sentence of imprisonment as a sequel thereto, is a different matter. 12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction. 13. 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 appellate 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 disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision." 8. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision." 8. Above view has been reiterated by Hon'ble the Apex Court repeatedly in several cases as cited by learned counsel for the respondent and it is clear that unless it is shown exceptional hardship the conviction and sentence should not be suspended. In the instant case, it has nowhere shown that at the time of incident appellant was holding any public office. Appellant has shown himself as a political figure. He has submitted that he was holding different posts in different capacities such as Sarpanch of Gram Panchayat, Bachoda; President of Janpad Panchayat, Depalpur; President of Dugdh Sahakari Samiti, Bachoda and President of Indore Sahakari Dugdh Sangh Maryadit, Indore and has claimed to contest upcoming M.P. Legislative Assembly election in the year 2023. It has been argued on behalf of him that on account of his conviction he will be debarred to contest the aforesaid election as the same is disqualification under the Representation of People Act. In a democratic set up discretion of such right can be considered hardship to aspirants if the conviction and sentence arguable to be fabulous and malice, in other words, where the appellant has fair chance to succeed in the appeal against the conviction and sentence as held by this Court in the case of Shakuntala Khatik Vs. State of M.P. and others (supra). 9. Appellant has been convicted under Section 420 and 120-B of IPC and not under the provisions of the Prevention of Corruption Act. His conviction is mainly based on the fact that he did not furnish the proof of his age, population certificate of the village, no objection certificate of the concerned Gram Panchayat, which were required for getting the loan under the Consortium Bank Scheme (CBC scheme) of M.P. Khadi Gramodyog Board and also on the ground that he being member of OBC category and was entitled only for 25% of margin money, illegally obtained loan amounting Rs.5,85,000/- and 30% margin money amounting Rs. 2,70,000/- under the above scheme. 2,70,000/- under the above scheme. It is mentioned in para 71 and 72 of the impugned judgment that appellant had shown in his application form his date of birth as 25.7.1965 and submitted photocopy of his mark sheet of Higher Secondary Examination Board (Ex. C/7). In para 75 to 77 of the impugned judgment, it has been mentioned that the Investigating Officer K.S. Bhuria (PW-22) during investigation of the case obtained certificate with regard to the population of the village Gautampura, wherein population of the above village was mentioned as 10104. In para 87 to 88 of the impugned judgment, it has also mentioned that the same Investigating Officer i.e. K.S. Bhuria (PW-22) in para 37 of his cross-examination admitted that during investigation he got the no objection certificate of the Nagar Panchayat, Gautampura (Ex. D/79). So far as the 30% margin money is concerned, admittedly, the same was sanctioned by the State Level Authority of the M.P. Khadi Tatha Gramodyog Board on the recommendations of the officials of the above Board, therefore, it cannot be said that he has not a good case. 10. In view of the above, having gone through the entire evidence and without expressing anything on merit, in the considered opinion of this court, appellant has a sound case in his favour as there is nothing on record, which indicates that the original mark sheet, population certificate of the village and no objection certificate of the Gram Panchayat, were required to be produced alongwith the application form for applying the loan. Appellant specifically disclosing his category applied for the loan and margin money and the same was sanctioned by the State Level Appraisal Committee, wherein without any evidence his involvement appears to be very doubtful. Admittedly, the whole outstanding loan amount was deposited by him as per no dues certificate dated 27.11.2010. Hence, prima facie, it can be said that the appellant has fair chances of success in the appeal and get acquittal or sentence lesser than 2 years jail sentence. In such circumstances, depriving appellant from contesting election of M.P. Legislative Assembly would be injustice and it would amount to frustrate the provisions of law which has been made by the Legislature to pass appropriate order to meet a situation exists in the present case as held by this Court in the case of Shakuntala Khatik Vs. State of M.P. and others (supra) . State of M.P. and others (supra) . 11. Hence, in view of the aforesaid discussion, this application is allowed and it is ordered that the judgment of conviction of the appellant dated 24.9.2021 passed by the Court of Special Judge (Prevention of Corruption Act), Indore in Special Case No.7/2012 shall remain suspended till further orders. List this appeal for final hearing in due course. C.c.as per rules.