1 cri.appln.894 of 2010 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO. 894 OF 2010 IN CRIMINAL APPEAL NO. 508 OF 2010 IN SPECIAL CASE NO. 38 OF 2007 Anup Ranjan Rai ... Applicant Versus The Central Bureau of Investigation, ACB, Delhi ... Respondents Mr. S.V. Marwadi i/by Ms. Shakuntala Wadekar for the applicant. Mrs. U.V. Kejriwal, A.P.P. for State. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : JANUARY 28, 2011 P.C. 1. This application for stay of the order of conviction is filed by the appellant who is convicted of the offences punishable under section 13(1)(e) read with 13(2) of Prevention of Corruption Act, 1988 and the offences punishable under Section 419, 468, 471 and 420 (b) read with 34 of Indian Penal Code. 2 cri.appln.894 of 2010 The appellant is sentenced to undergo R.I. for three years and to pay fine of Rs.500/- for the offences under Prevention of Corruption Act and R.I. for six months for the offences under Indian Penal Code. Accused nos. 2 and 3 have been convicted for the offences punishable under section 419, 468, 471 of the Indian Penal Code. The appeal filed by the applicant challenging his conviction is admitted. He has been released on temporary bail. 2. The case of the prosecution in brief is as follows : The appellant a public servant, from the year 1993 onwards, acquired movable and immovable assets in his name and in the name of his family members which are disproportionate to his known source of income. The check period is from 1st January, 1993 to 13th January, 2004. Before the check period, he had immovable assets worth Rs.4,07,228/- and at the end of the period i.e. as on 13th January, 2004 he was found in possession of assets worth Rs.37,04,405/-. The immovable properties acquired during this period are : i) a plot of land at Nerul Navi Mumbai and construction of 3 cri.appln.894 of 2010 row house thereon together wroth about Rs.19,50,000/- in the name of mother. ii) MIG Plot No. 32 Asiana Nagar Patna wroth Rs.4,02,663/- in the name of wife and iii) Flat no.. 341, Sector 10, Dwarka Shakuntalam Coop. Hsg. Delhi wroth Rs.9,14,360 in his own name. The prosecution alleges that the total income of the appellant during the check period was found to be of Rs. 33,64,815/- whereas the total expenditure of the appellant and his family members were of Rs.16,72,346/-. The total assets of the appellant and his family members were found to be of Rs.37,04,405/- leading to disproportionate assets to the extent of Rs.15,84,708/- during the check period. 3. The details of acquisition of the properties are as follows : Property at Mumbai : On his transfer to Mumbai inthe year 1995, the appellant purchased residential plot of land at Nerual, Navi Mumbai in the name of his mother Mrs. J. Rao for the consideration of Rs. 6,31,000/-. The total amount spent by him for purchase of the 4 cri.appln.894 of 2010 plot was Rs.7,35,786/-. Thereafter, he constructed a row house thereon by spending an amount of Rs.12,13,376/-. In order to create false impression that the consideration for the plot of land and the money for construction of the house had come from the mother, the appellant managed to show that the mother had sold her jewelery to M/s. P.K. Jeweler proprietary concern of Prakash Kothari (accused no. 4). He obtained cheques in an unlawful manner against cash showing sale of jewelery in connivance with chartered accountant Shri. Lalt Chatnani (accused no. 2) and his wife Neha Chatnani (accused no. 3). Several cheques were obtained from M/s. P.K. Jewelers and deposited in fictitious account bearing No.1176, Vijaya Bank, Nerul Branch opened in the name of Mrs. J. Rao, by accused no. 3. Accused no. 2 had also opened one account with Vijaya Bank, Nerul Branch, bearing Savings Bank Account No. 1135 in the name of one Shri. N.P. Singh. Both the account opening forms bore the signature of accused no. 3, and accused no. 2 respectively. For the purchase of Nerul plot, some cheques had been issued in favour of CIDCO under the signature of accused no. 3 from S.B. 5 cri.appln.894 of 2010 A/c. No. 1176. Accused no. 4 had issued 8 cheques in the name of Mrs. J. Rao by showing bogus sale of gold jewelery. All the cheques were deposited in the savings Bank Account no. 1176 of Vijaya Bank. The construction of the row house was carried out by the appellant by obtaining power of attorney from his mother Mrs. J. Rao. Property at Patna : The appellant purchased MIG plot No. 32, Asiana Nagar, Patna on 3rd October, 1997 for the sum of Rs.4,02,663/- in the name of his wife Smt. Poonam Singh. For the purchase of this property also, he had obtained cheques from accused no. 4 in the name of his wife showing bogus sale of old gold jewelery. The amount was deposited by the wife in her Syndicate Bank account at Patna. Flat at Delhi : The appellant purchased a flat at Delhi being flat no. 341 at Sector 10, Dwaraka, Shakuntalam Cooperative Housing Society, Delhi for a sum of Rs.9,14,360/-. 6 cri.appln.894 of 2010 4. The prosecution has examined in all 57 witnesses to bring home the guilt of the accused persons. The appellant examined 9 witnesses in support of his defence. After appreciation of the entire material before it, the trial court held the appellant and the other accused persons guilty of the offences alleged against them as stated in its judgment. 5. Mr. Marwadi, the learned counsel for the appellant submits that the appellant has good chances of succeeding in the appeal. However, the appeal will not come up for hearing for long time, at least during the remaining period of service of the appellant. In that case, the appellant will have to face termination of service as an after effect of his conviction in the case. In order to save this ignominy, Mr. Marwadi submits that this is a fit case to stay the operation and effect of order of conviction passed against him. For that purpose, Mr. Marwadi has taken me extensively through the notes of evid3ence,the observations in the judgment and the findings therein. He has also submitted that the appellant has been a very sincere and honest public servant. He was never chargesheeted nor was any kind of 7 cri.appln.894 of 2010 departmental action initiated against him. for any misconduct during his entire career. He thus carries on unblemished service record. 6. Mr. Marwadi submits that only one of the three properties stands in the name of the appellant for the purchase of which the appellant had taken loan. The other two properties stand in the name of his mother and the wife. He submits that the trial court has failed to take into account that both the parents were well placed in their life and had sufficient income. The father of the appellant had retired as Under Secretary, Law Department from Bihar Government. After his retirement, in the year 1980, he was attached to many corporate bodies as legal adviser and was earning well. The mother of the applicant was regularly conducting sewing classes and catering classes. She was earning separately. She had also authored a book on cooking. The wife of the appellant conducted her own business and was earning a good amount therefrom. She was also filing income tax returns from time to time. The prosecution has however, brought on record that at the time of his retirement the 8 cri.appln.894 of 2010 father was drawing pension of Rs.600/- p.m. The mother of the appellant resided with her another son at Patna. She never came to Mumbai for execution of the documents to purchase the property. She did not appear before any authority. Further the source of money to purchase the property had come from accused no. 4 through cheques which cheques had been deposited in fictitious accounts operated by accused no. 3. As regards the wife of the appellant, though she was said to be running business in the name of "Sigma Agencies", she had no income from the business. There is extensive evidence brought on record to show that the source of money to purchase the properties standing in the name of the mother and the wife was the appellant himself. Therefore, at this stage, it will be difficult to say with any probability that the appellant has good chances of succeeding in the appeal. 7. Smt. Kejriwal, the learned A.P.P. for the State submits on the other hand that order to suspension of conviction is not ordinarily passed. It may be passed only in very exceptional circumstances. In support of her submission, she relies upon two 9 cri.appln.894 of 2010 decisions of the Apex Court in the case of K.C. Sareen Vs. C.B.I. Chandigarh reported in AIR 2001 Supreme Court 3320, State of Punjab Versus Deepak Mattu, reported in (2007) 11 Supreme Court Cases 319 and the decision of our High Court in Mahijibhai Kabhai Vasav Vs. State of Maharashtra and Anr. reported in 2009 All MR (Cri) 2301. In K.C. Sareen (supra), the Apex Court held that though power to suspend the order of conviction is not alien to section 389(1) of Code of Criminal Procedure, its exercise should be limited to very exceptional circumstances. Merely because of the convict person files appeal in challenge to the conviction, the court should not suspend the operation of the order of conviction. At Paras 11 and 12 of the judgment the Apex Court has laid down the considerations for the limitations on the exercise of power to suspend the order of conviction. The same read as follows : "11. 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 10 cri.appln.894 of 2010 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. 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 11 cri.appln.894 of 2010 help of a court order suspending the conviction. 12. 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. The decision of the Apex Court in K.C. Sareen (supra) has been followed in Dipak Mattu's case. Our High Court also in Mahijibhai's case following the decision in K.C. Sareen's case rejected the application for stay of the order of conviction. On perusal of the impugned judgment and the notes of evidence, I am satisfied that there is no exceptional case made out by the appellant herein. Hence, the application is dismissed. [Judge]