Mayank N Shah vs State Of Gujarat

2. On 21.07.1976, a complaint was lodged by Divisional Manager, Central Bank of India, Ahmedabad with the Superintendent of Police, Digitally signed by GULSHAN KUMAR ARORA Date: 2019.12.18 Central Bureau of Investigation, Ahmedabad against the 16:26:49 IST Reason:

Auto Parts Centre, of which accused no.2 was the sole proprietor. It is alleged, the accused nos.2 to 5 by making false or misleading representation with fraudulent and dishonest inducement, cheated the bank to the tune of Rs.18,57,064.40. It was also alleged that accused nos.2 to 5 made false declaration about the value of the goods by drawing bills in favour of fictitious firms. Further, M/s. Alloy Steel Corporation, a fictitious firm floated by accused no.2, raised 11 fabricated invoices in the name of the firm amounting to Rs.44,19,000/- and fraudulently and dishonestly induced the said bank to advance the amount of Rs.30,93,300/-. In the complaint it is alleged that accused no.1 being a public servant, managed to get credited, at the instance of accused no.2, an amount of Rs.9500/- in the account of his sons on 28.11.1975 and Rs.5400/- on 11.02.1976. In addition to the same, accused no.1 accepted a wrist watch, Crown T.V. set and enjoyed a trip to Bombay at the expense of accused nos.2 and 3, as such, committed the offence punishable under Section 161 and 165 of the Indian Penal Code (IPC).

5. Aggrieved by the conviction recorded and sentence imposed, the appellant herein preferred criminal appeal before the High Court. High Court, by re-appreciating the evidence on record, dismissed the appeal 5 Crl.A.No.2298 of 2010 by impugned judgment, confirming the judgment and order of sentence imposed on the appellant, by the learned Special Judge, Ahmedabad.

13. 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 and he was salaried employee, we deem it appropriate, it is a fit case to modify the sentence imposed on the appellant, while confirming the conviction. This Court, in State of Madhya Pradesh v. Udham and Others5, has clearly laid down guidelines for sentencing. 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. There is no dispute that, from the facts and circumstances, the appellant was working in the firm owned by accused no.2 and he was relatively lower in the hierarchy. It needs to be highlighted that he was only a salaried employee. Accordingly, we modify the sentence of R.I. 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 4 (2004) 11 SCC 576 5 2019 SCC OnLine SC 1378 9 Crl.A.No.2298 of 2010 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. We further order that all the sentences shall run concurrently.

14. 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 this 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.

December 18, 2019.