Sentence/Sentencing – Complaint lodged against the appellant-accused no.4 and four others – At the relevant time, accused no.1 was serving as Branch Manager of Central Bank of India, Ahmedabad– Accused nos.2, 3 were partners of a partnership firm engaged in the business of manufacturing crankshafts for jeeps, ambassador cars etc.– Appellant was serving as Chief Manager (Operations) with the firm and accused no.5 was office Superintendent– Accused no.2 applied to the Bank for availing loan facilities for the firm – Case of the complainant inter alia that under the Usance Bills facility, the partnership firm used to offer its bills drawn on different outstation parties and along with the said bills they produced railway receipt, motor receipt, invoices for the value of the goods sold to the parties and also the hundis drawn upon the purchases – Said documents were signed by accused nos.2-5– On such presentation, the bank used to grant credit facility – Allegedly, forged receipts were produced with Out-stationed Bills Discounted (O.B.D) and Bills Purchased (B.P) and in all, the appellant and accused no.5 presented to the Bank 25 bills to the tune of Rs.18,57,064.40/-, and the firm availed the credit facility from the Bank against such bills, by presenting fake transport receipts – Accused charged u/ss.161, 166, 420, 468 & 471, IPC r/w ss.5(1)(d), 5(2) of 1947 Act – Special Judge convicted the accused nos.1-4 – High Court confirmed the conviction and sentences imposed on the appellant –On appeal, held: Findings recorded supporting the prosecution case were in conformity with the oral and documentary evidence on record – Appellant knowing fully well that the invoices/bills were fake and fabricated, presented on behalf of the firm to the bank and thus cheated the bank – Prosecution proved the guilt of the appellant beyond reasonable doubt – However, in assessing the sentencing, the crime test requires adequate deference to factors such as role of the accused and his position within the rank of conspirators, among other things – In view of the fact that the appellant was only a salaried employee working in the firm owned by the accused no.2 and was relatively lower in the hierarchy, it is fit case to modify the sentence imposed on the appellant, while confirming the conviction – Period of sentence modified – All the sentences to run concurrently – Bail bonds of the appellant cancelled, who shall surrender within 4 weeks from today, failing which steps be taken to take him into custody for serving the remaining period of sentence – Penal Code, 1860 – ss.120-B, 161, 166, 420, 468 and
471 – Prevention of Corruption Act, 1947 – ss.5(1)(d), (2).
Partly allowing the appeal, the Court
HELD: 1.1 When the advocate on record who filed the appeal was elevated to the Bench, it was for the appellant to make his own arrangement for appointing another advocate in the place of earlier advocate on record. Appellant did not take any steps in this regard. Even notice sent to the appellant was not received by him for want of correct address. As such there was no option except to proceed for disposal of the appeal filed by the appellant, by appointing amicus curiae. Mere allegation that the amicus curiae appointed was earlier junior counsel of C.B.I. advocate, is no ground to interfere with the impugned judgment. The findings recorded in support of the case of the prosecution were in conformity with the oral and documentary evidence on record. The appellant knowing fully well that the invoices/bills were fake and fabricated, were presented on behalf of the firm to the bank and thus cheated the bank. The prosecution has proved the guilt of the appellant beyond reasonable doubt to record conviction of the appellant. [Para 10] [365-D-G]
1.2 Having regard to totality of the facts and circumstances of the case and evidence on record, taking note of the fact that the appellant was working in the firm owned by the accused no.2, he was salaried employee and and he was relatively lower in the hierarchy. it is a fit case to modify the sentence imposed on the appellant, while confirming the conviction. In assessing the sentencing, the crime test requires us to evaluate and provide adequate deference to factors such as role of the accused and his position within the rank of conspirators, among other things. Accordingly, the sentence of R.I. modified for a period of one year for the offence punishable under S.120B read with S.161, 166, 420, 471 of I.P. Code and also read with S.5(1)(d) further read with S.5(2) of the Prevention of Corruption Act, 1947; R.I. for a period of one year and to pay fine of Rs.5000/-, in default to suffer further R.I. for period of six months for the offence punishable under sec.420, 420-120B of I.P. Code; R.I. for a period of one year and to pay a fine of Rs.2000, in default to suffer further R.I. for period of three months for the offence punishable under S.471 read with S.468 of I.P. Code in respect of the user of seven forged motor transport receipts; R.I. for a period of one year and to pay a fine of Rs.2000. in default to suffer further R.I. for period of three months for the offence punishable under S.471 read with S.468 and further read with S.120B of I.P. Code in respect of the user of the 11 Photostat copies of exhs.942 to
952. All the sentences shall run concurrently. The appeal is allowed in part to the extent of modifying the period of sentence. As the appellant was on bail pursuant to orders passed by Supreme Court on 16.11.2009, his bail bonds are cancelled. He shall surrender within a period of four weeks from today to serve the remaining period of sentence, failing which respondent-State shall take steps to take the accused into custody to serve the remaining period of sentence. [Paras 13, 14] [366-B-G; 367-AB] Central Bureau of Investigation, Hyderabad v.
K. Narayana Rao (2012) 9 SCC 512 : [2012] 9 SCR
54 ; K.R. Purushothaman v. State of Kerala (2005) 12 SCC 631 : [2005] 4 Suppl. SCR 498 ; Bharati Telenet Ltd. v. Subhash Jain & Ors. (2005) 11 SCC 599 ; A.S. Krishnan & Ors. v. State of Kerala (2004) 11 SCC
576 : [2004] 3 SCR 44 – referred to.
State of Madhya Pradesh v. Udham and Others 2019 SCC OnLine SC 1378 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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