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CR.MA/2923/2010 3/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2923 of 2010
In
CRIMINAL
APPEAL No. 303 of 2010
With
CRIMINAL
MISC.APPLICATION No. 2925 of 2010
In
CRIMINAL
APPEAL No. 304 of 2010
=========================================================
CHHOTUBHAI
JAFARBHAI CHARANIA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Applicant(s) : 1,
MR LB DABHI, LD. ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
MR YN RAVANI for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 10/05/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
Leave
to correct the title as Criminal Miscellaneous Application No.2925
of 2010 in Criminal Appeal No.304 of 2010.
It
appears that so far as Criminal Appeal No.303 of 2010 is concerned,
the same arises from the judgment passed by the learned Special
Judge, C.B.I. in Special Case No.47 of 1995, whereby the order for
conviction reads as under:
The
accused no.1 Shri Chhotubhai Jafarbhai Charania is directed to
undergo rigorous imprisonment for a period of ten years for the
offence under Sections 436 read with Section 201 of the IPC and is
directed to undergo rigorous imprisonment for a period of seven
years for the offence under Section 420 of the IPC and pay fine of
Rs.2,00,000/- for each of the substantive offences. The aggregate
amount of fine comes to Rs.4,00,000/-, and in default of payment
of fine, he is directed to undergo imprisonment for a period of
six months. However, it is clarified that all the substantive
sentences shall run concurrently. It is needless to say that the
period of detention, if any, undergone by the accused in this
case, shall be set off against the term of imprisonment imposed on
him.
The
amount of fine as and when deposited by the accused Shri Charania
in the Court, shall be applied in the payment to the Dena Bank
towards the compensation for the damage suffered by its on account
of the fire caused by accused no.1, in view of Section 357(1) of
Cr.P.C., subject to the provisions of Section 357(2) of the said
Code.
Since
the accused no.1 is on bail, he is directed to be taken into
judicial custody.
The
accused no.1 has also been convicted and sentenced as per the
judgments & orders passed today in Special Case No.9/96 &
68/95. However, the sentences imposed in the said two cases as
well as in the instant case shall run concurrently as contemplated
under Section 427 of Criminal Procedure Code.
The
original documents produced in the case be returned to the
concerned officer of the office, as the case may be, from which
they were seized, by the Investigating Officer, after following
the procedure, after the appeal period is over.
Copy
of this order be sent to the Dena Bank, Local Head Office, Ashram
Road, Ahmedabad.
It
appears that so far as Criminal Appeal No.304 of 2010 is concerned,
the same arises from the judgment passed by the learned Special
Judge, C.B.I. in Special Case No.09 of 1996, whereby the order for
conviction reads as under:
The
accused no.1 Shri Chhotubhai Jafarbhai Charania is directed to
undergo rigorous imprisonment for a period of ten years for each of
the offences under Sections 120B, 409 & 467 of the IPC and is
directed to undergo rigorous imprisonment for a period of seven
years for each of the offences under Section 477A of the IPC and
under Section 13(2) read with Sections 13(1)(c) and 13(1)(d) of the
PC Act and is directed to pay fine of Rs.1,00,000/- for each of the
substantive offences. The aggregate amount of fine comes to
Rs.5,00,000/-, and in default of payment of fine, he is directed to
undergo imprisonment for a period of one year. However, it is
clarified that all the substantive sentences shall run concurrently.
It is needless to say that the period of detention, if any,
undergone by the accused in this case shall be set off against the
term of imprisonment imposed on him.
The
accused no.2 Shri Devendra S. Mehta is directed to undergo rigorous
imprisonment for a period of five years for each of the offences
under Sections 120B, 409, 467 & 477A read with Section 109 of
the IPC and for the offences under Section 13(2) read with Section
13(1)(c) & 13(1)(d) of the PC Act read with Section 109 of the
IPC and is directed to pay fine of Rs.50,000/- for each of the
substantive offences. The aggregate amount of fine comes to
Rs.2,50,000/- and in default of fine, he is directed to undergo
imprisonment for a period of six months. However, it is clarified
that all the substantive sentences shall run concurrently.
Since
the accused nos.1 and 2 are on bail, they are directed to be taken
into judicial custody.
The
accused no.1 has also been convicted and sentenced as per the
judgments & orders passed today in Special Case No.47/95 &
68/95. However, the sentences imposed in the said two cases as well
as in the instance case shall run concurrently as contemplated under
Section 427 of Criminal Procedure Code.
The
original documents produced in the case be returned to the concerned
officer or the office, as the case may be, from which they were
seized, by the Investigating Officer, after following the procedure,
after the appeal period is over.
The
present applicant is the accused no.1 before the Trial Court, who is
appellant here in the present case seeking suspension of aforesaid
sentences.
We
have heard Mr. Yogesh Lakhani with Mr. Ashish Dagli for the
applicant, Mr.Y.N. Ravani for C.B.I.-opponent no.2 herein and
Mr.L.B. Dabhi, learned Additional Public Prosecutor for the State.
As
such at this stage it may not be required for this Court to
elaborately consider the evidence on record, but the pertinent
aspect is that there are two confessional statements of the
applicant-accused wherein the commission of offence is admitted and
the learned Special Judge upon the evidence on record after
appreciation has found the voluntariness and reliability of the said
confessional statements. The contention of the applicant-accused
that it was after surrendering to the police custody or that the
statements were recorded in the police custody is not borne out from
the question put to any witnesses nor such contention was raised
before the learned Trial Court. Further, it deserves to be recorded
that if the matter is to be considered with the confessional
statements, there is huge amount of misappropriation proved running
into crores of rupees inasmuch as such amount was tendered to be
deposited in the Bank, but the same has not been created in capacity
of the accused as Cashier of a Nationalise Bank. It is well settled
that at the time of suspension of sentence for regular bail, it
would be required to consider gravity of the offences together with
other relevant circumstances and also the aspects that it is only in
exceptional cases, sentence is to be suspended. The aforesaid would
be applied with more vigour to cases where there is misappropriation
of amounts running into crores of rupees by a Cashier of Nationalise
Bank and further, followed by another serious offences of destroying
the record of the Bank by setting fire.
Hence,
it appears to us that it could not be a case to exercise discretion
for suspension of sentence and releasing the applicant-accused on
bail pending the appeal.
Hence,
the application does not deserve to be granted, therefore, rejected.
(Jayant
Patel, J)
(Z.
K. Saiyed, J)
Anup
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