Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Prakash D.Naik, J.
Ashok Leharchand Bhansali – Appellant
Versus
Central Bureau Of Investigation – Respondent
Interim Application No. 746 of 2022, 745 of 2022, Criminal Appeal No. 222 of 2022
Decided On : 14-03-2022

Advocates Appeared:
Vinay J.Bhanushali, Advocate, Kuldeep Patil, Advocate, P.N.Dabholkar, Advocate

The central legal point established in the judgment is the court's discretion to suspend both imprisonment and fine under Sec. 389 of Cr.P.C. based on the age of the case and the financial capacity of the accused.

Headnote:
Suspension of Sentence - Indian Penal Code - Sec. 120-B, Sec. 420, Sec. 465, Sec. 468, Sec. 471 - The court suspended the sentence of imprisonment and granted bail pending Criminal Appeal No. 222 of 2022. The applicant was directed to deposit varying fine amounts for different convictions within a specified time period.
Fact of the Case:

The applicant sought suspension of sentence and bail pending appeal, citing discrepancies in trial evidence, lack of documentary support from the prosecution, and the inability to deposit the imposed fine. The case involved convictions under multiple sections of the Indian Penal Code for misappropriation and conspiracy in a bank fraud case dating back 20 years.
Finding of the Court:

The court found that the applicant's bail during the trial was not misused, but also noted discrepancies in the evidence and lack of documentary support from the prosecution. The court considered the age of the case and the financial capacity of the applicant in imposing and suspending the fine.
Issues: The issues included the misuse of bail, discrepancies in trial evidence, lack of documentary support from the prosecution, and the imposition and suspension of the fine.
Ratio Decidendi: The court's decision was influenced by the age of the case, the financial capacity of the applicant, and legal precedents allowing for the suspension of both imprisonment and fine under Sec. 389 of Cr.P.C.
Final Decision: The court allowed the interim applications, suspended the sentence of imprisonment, and granted bail to the applicant. The applicant was directed to deposit varying fine amounts for different convictions within a specified time period, with compliance to be verified after ten weeks.

JUDGMENT

1. In both these applications the applicant has prayed for suspension of sentence and grant of bail pending Criminal Appeal No.222 of of 2022.

2. The applicant is convicted vide judgment and order dtd. 23/2/2022 for offence punishable under Sec. 120 -B of Indian Penal Code (for short "IPC") and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.50,000.00. He is also convicted for offence under Sec. 420 r/ w Sec. 120-B of IPC and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.3,00,00,000.00. For the conviction under Ss. 465 of IPC, 468 of IPC and 471 of IPC, the applicant has been sentenced to suffer imprisonment of one year on each count and fine of Rs.1,00,000.00 on each count.

3. Learned counsel for the applicant submitted as follows:-

i. The applicant was on bail during the trial. The facility of bail was not misused.

ii. The evidence adduced in the trial Court suffers from serious discrepancies.

iii. The prosecution has not produced on record the documents to support its case. iv. The trial Court has not assigned any reasons for imposing fine of Rs.3,00,00,000.00 for conviction under Sec. 420 r/w Sec. 120-B of IPC. The record is 20 years old and on inferences huge fine has been imposed.

v. The evidence of PW-10 refers to the misappropriation of about 78 Lacks which is not fortified by any documentary evidence.

vi. The maximum sentence of imprisonment imposed by the trial Court is of 5 years. The appeal preferred by the applicant would not come up for hearing within short span of time and in the event the sentence is not suspended, the appeal would become infructuous.

vii. Relying upon the income tax returns of the applicant it is urged that the financial capacity of the applicant not sound to deposit the huge fine amount.

viii. The sentence of imprisonment as well as fine can be suspended. The fine amount can be reduced.

ix. The fine amount imposed for conviction other than for offence under Sec. 420 of IPC Rs.3,50,000.00. The applicant would deposit the said amount within reasonable time. The fine of Rs.3,00,00,000.00 is arbitrary and without supported by evidence. On instructions it is submitted that the applicant would deposit amount of Rs.5,00,000.00 towards fine amount for conviction under Sec. 420 of IPC.

4. In support of his submissions he relied upon the following decisions :-

(a) Satyendra Kumar Mehra Vs. State of Zharkhand (2018) 15 SCC 139.

(b) Emperor V/s. Mendi Ali, AIR 1941 Allahbad 310.

(d) Monika Acharya V/s. State of Orissa 2000(1) Orissa LR 299.

(e) Shahejadkhan Mehebubkhan Pathan V/s. Stte of Gujrat in Criminal Appeal No.1593 of 2012.

5. learned counsel for the respondent - CBI submitted that the offences were committed about 18 years ago. The trial Court has considered this aspect while imposing fine. There is sufficient evidence to convict him. The applicant has played lead role in the crime. The evidence on record disclose that the applicant had misappropriated huge amount. The amount was utilized for several years. Hence, the trial Court had imposed fine of Rs.3,00,00,000.00 for the conviction under Sec. 420 of IPC. He relied upon the order dtd. 20/12/2021, passed by this Court in Interim Application No.2874 of 2021 wherein the accused was sentenced to pay fine of more than Ten Crores. The misappropriated amount was more than Two Crores. The convict was permitted to deposit 50% of misappropriated amount. He also relied in order dtd. 4/7/2018 passed by this Court in Criminal Application No.999 of 2018. The trial Court had imposed heavy fine on various counts in that case. Considering the nature of offence, the fine amount may not be reduced.

6. It is not disputed that the applicant was on bail during the trial. The maximum sentence imposed by the trial Court is 5 years. The sentence of fine has been imposed by the trial Court on various counts. The fine amount for the con