IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1009 OF 2008 CRIMINAL APPLICATION NO. 1009 OF 2008 CRIMINAL APPLICATION NO. 1009 OF 2008 IN IN IN CRIMINAL APPEAL NO. 886 OF 2008 CRIMINAL APPEAL NO. 886 OF 2008 CRIMINAL APPEAL NO. 886 OF 2008 Shri Chandrashekhar Gajanan Dabke ...Applicant/ Orig.Accused No.2. vs. The State of Maharashtra ...Respondent Mr.Nitin Pradhan i/b. Ms.Shubhada Khot for the Applicant. Mr.P.A. Pol, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : OCTOBER 7, 2008 DATED : OCTOBER 7, 2008 DATED : OCTOBER 7, 2008 P.C. :- P.C. :- P.C. :- 1. Heard learned Counsel for the applicant and learned APP for the State. 2. The applicant has filed this application seeking suspension of conviction which was imposed by the trial court against the present applicant for the offence under the provisions of the Prevention of Corruption Act and was sentenced to suffer RI for 2 years. The applicant has been released on bail and his sentence, therefore, is suspended. This application has been filed for suspension of the conviction. - 2 - 3. The learned Counsel for the applicant submits that the applicant is working in the Excise Department and pursuant to a trap led by the CBI, the applicant was caught and thereafter, after obtaining sanction, chargesheet was filed against him. The trial Court has convicted him. The learned Counsel submitted that the prosecution has not established the identity of the complainant. He submitted that the complainant had boarded a taxi alongwith two accused. He submitted that admittedly, the taxi driver and the complainant did not know each other. The two accused sat on the backseat of the taxi and the complainant put the notes powdered with phenolphthalein on the lap of the accused and thereafter, he got down and and gave the prearranged signal and thereafter, the raiding party arrested the accused. He submitted that in the evidence, it has not been proved by the prosecution that PW1, the taxi driver had identified the complainant as a person who was sitting on the front seat. He submitted that therefore, this crucial peace of evidence having not been established, the trial court had erred in convicting the - 3 - accused since there was no evidence to suggest that the money had, in fact, been paid by the complainant and not by any other party. He submitted that this being crucial aspect of the case, the trial Court had overlooked this aspect and the applicant, therefore, had a good chance in succeeding in the appeal. He, therefore, submitted that the conviction, therefore, should be suspended. In support of the said submission, he relied on a judgment of the Apex Court in the case of Rama Narang Vs. Ramesh Narang, reported in (1995) 2 SCC Rama Narang Vs. Ramesh Narang, reported in (1995) 2 SCC Rama Narang Vs. Ramesh Narang, reported in (1995) 2 SCC 513 513 513 and other judgments of the Apex Court. 4. The learned APP, on the other hand, invited my attention to the judgment of the Apex Court in the case of K.C. Sareen vs. CBI, Chandigarh, reported in (2001) K.C. Sareen vs. CBI, Chandigarh, reported in (2001) K.C. Sareen vs. CBI, Chandigarh, reported in (2001) 6 SCC 584. 6 SCC 584. 6 SCC 584. He submitted that in view of the law laid down by the Apex Court in the said case, the applicant was not entitled to seek an order of suspension of conviction. 5. In reply, Shri Pradhan, learned Counsel appearing on behalf of the applicant submitted that the - 4 - Apex Court had in two subsequent judgments viz. in the case of State of Maharashtra vs. Gajanan and another, State of Maharashtra vs. Gajanan and another, State of Maharashtra vs. Gajanan and another, reported in (2003) 12 SCC 432 reported in (2003) 12 SCC 432 reported in (2003) 12 SCC 432 and in the case of Union Union Union of India vs. Atar Singh and another, reported on (2003) of India vs. Atar Singh and another, reported on (2003) of India vs. Atar Singh and another, reported on (2003) 12 SCC 434 12 SCC 434 12 SCC 434 had held that the High Court was empowered to suspend the sentence in very exceptional cases. He invited my attention to para 5 of the judgment in the case of Gajanan and another (supra) Gajanan and another (supra) Gajanan and another (supra) and para 3 in the case of Atar Singh and another (supra) Atar Singh and another (supra) Atar Singh and another (supra). He also pointed out that the Apex Court in the case of Rama Narang Rama Narang Rama Narang (supra) (supra) (supra) had also held that the discretion could be exercised by the High Court under Section 389 and in exceptional cases, pass an order of suspension of conviction. 6. It is not possible to accept the submission made by the Counsel for the applicant. In the present case, the applicant was caught red handed. The panchnama was made and the panch witnesses have been examined. Merely because the complainant was not identified by the taxi driver as the person who gave the money to the applicant, that would not bring him out of the purview - 5 - of the provisions of the Prevention of Corruption Act. The case of the prosecution has been accepted by the trial Court. The appeal against this order has been admitted. Taking into consideration the facts of this case, in my view, it cannot be said that this is an exceptional case where the order of conviction can be suspended by this Court while exercising its discretionary power under Section 389 of Cr.P.C. 7. Apart from that the Apex Court in the case of K.C. Sareen (supra) K.C. Sareen (supra) K.C. Sareen (supra) has laid down the guidelines for the purpose of exercise of this discretionary power by the High Court under Section 389. In para 13 of the said order, the Apex Court has observed as under :- "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 - 6 - 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. The Apex Court also has laid down the manner in which the applications under Section 389 to be dealt with. In view of the mandate given by the Apex Court in the case of K.C. Sareen (supra) K.C. Sareen (supra) K.C. Sareen (supra) and in the subsequent judgment, no case is made out for grant of stay to the impugned judgment and order. 9. The application, therefore, is dismissed. The hearing of the appeal, however, is expedited. The appellant shall prepare a private paperbook. Liberty is also granted to the appellant to apply for a fixed date of hearing. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)