1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1369 OF 2009 Ramchandra S/o Deochand Mali ..... APPLICANT V E R S U S The State of Maharashtra .... RESPONDENT Shri. R.N.Dhorde, Advocate for Applicant. Shri. V.H.Dighe, A.P.P. for State. [ CORAM : R.M.BORDE, J. ] DATE : 18/06/2009 ------------------------------------------------- PER COURT : 1. Heard Shri. R.N.Dhorde, counsel appearing for Applicant. This is an application seeking suspension of conviction of the accused, who has been held guilty for commission of offence punishable under Section 13 (1) (e) read with 13 (2) of Prevention of Corruption Act and is sentenced to suffer Rigorous Imprisonment for 2 years and to pay fine of Rs. 1,50,000/-, in default to suffer Rigorous Imprisonment for six 2 months. 2. It is stated that so far as the substantive sentence passed against the accused by the trial Court is concerned, the same has been already suspended and the accused is directed to be released on bail. It is canvassed by the counsel appearing for accused that the accused/applicant has retired on attaining age of superannuation and there is no likelihood that he would join service in near future after suspension of conviction. The benefit, which the accused/applicant would be deriving, is in respect of pensionery benefit only. 3. The learned A.P.P. for the State has vehemently opposed the application contending that the Apex Court in case of State of Maharashtra V/s Gajanan and another reported in - 2004 AIR SCW 80 and K.C. Sareen V/s C.B.I. Chandigarh reported in 2001 AIR SCW - 3339 has directed to exercise the caution while issuing orders in respect of suspension of conviction in the matters arising out of the offence under the provisions of Prevention of Corruption Act. The Apex Court has opined in the reported Judgments that the person carrying blot, should not be permitted to continue in employment and hold the post. Here is the case of the applicant, who is already retired on 3 attaining the age of superannuation. Apart from this aspect, considering the merits of the case at hand, the order of conviction needs to be suspended. 4. The accused was charged for possessing assets disproportionate to his known source of income to the tune of Rs. 5,11,814.36. Whereas finding has been recorded by the trial Court on appreciation of evidence that the accused is possessing disproportionate assets to the extent of Rs. 3,44,782/-. The accused joined service in the year 1963 as a Jr. Engineer and was serving in Public Works Department at Pune. He was promoted as Dy. Engineer in the year 1965 and lastly he received promotion as Executive Engineer and was holding the post since 1971 to 1991. 5. While drawing conclusion in respect of disproportionate assets possessed by the applicant, the trial Court has refused to take in to account the rental income to the tune of Rs. 1,95,759/- received by the applicant for the period from 1980 to 1988. The Court has refused to take in to account this income on the ground that the applicant has not given intimation about the source of income to the competent authority. Counsel for the applicant has pointed out that such an intimation was in 4 fact given to the competent authority on 31/3/1981, so also during subsequent years. Apart from the factum of notifying the competent authority in respect of rental income, the fact of receipt of said rental income can not be controverted. Total disproportionate assets alleged to have been possessed by the accused are to the tune of Rs. 3,24,782/-. The trial Court has also not taken into account the agricultural income regarding which exemption has been claimed by the accused, which according to accused comes to Rs. 56,566/-. The trial Court has also not taken into account the interest income received by the applicant, which according to him was deposited in the account maintained by him with Bank of Maharashtra. For proving the interest income to the tune of Rs. 50,090/-, the applicant has examined D.W. 2 Mr. Kumbhar, the Branch Manager of Bank of Maharashtra. The trial Court, prima facie, appears to have erred in refusing to take into account the interest income earned by the applicant. Apart from this aspect, it is also pointed out that the son of the applicant was working as a Trainee Architect and has derived income of Rs. 750/- per month, which also has not been taken into account by the trial Court. 6. Considering all these relevant aspects, in my opinion, it is a fit case for granting relief in favour of applicant. The applicant deserves 5 favourable consideration for one more reason and that is by virtue of suspension of conviction, the accused is not likely to join service and hold the post, which he was occupying. The accused is a retired official. The allegations in respect of disproportionate assets on the face of it does not appear to be shocking to the conscience. In this view of the matter, the application deserves to be allowed and the same is allowed. The order of conviction passed by the learned Special Judge in Special Case No. 10 of 1998 convicting the accused for the offence punishable under Section 13 (1) (e) read with 13 (2) of Prevention of Corruption Act stands suspended. [ R.M.BORDE ] JUDGE knp/CRIAPLN1369.09