High Court
Facts
CriAppln-2151-2024+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 2151 OF 2024 IN APPEAL/503/2024ANDCRIMINAL APPLICATION NO. 2483 OF 2024 IN APPEAL/503/2024[For suspension of sentence and grant of bail]Anuradha Suresh Pawar,Age 42 years, Occu: Household,R/o Plot No. 704, Ved-mantra Apartment,Near S.R. Petrol Pump, Pundlik Nagar,Aurangabad, Tq. & Dist. Aurangabad.… Applicant(Now in jail)[Accused No.2]versusThe State of Maharashtra… RespondentWITHCRIMINAL APPLICATION NO. 2646 OF 2024 IN APPLN/2151/2024CRIMINAL APPLICATION NO. 2648 OF 2024 IN APPLN/2151/2024CRIMINAL APPLICATION NO. 2649 OF 2024 IN APPLN/2151/2024CRIMINAL APPLICATION NO. 2650 OF 2024 IN APPLN/2151/2024CRIMINAL APPLICATION NO. 2651 OF 2024 IN APPLN/2151/2024CRIMINAL APPLICATION NO. 2652 OF 2024 IN APPLN/2151/2024CRIMINAL APPLICATION NO. 2653 OF 2024 IN APPLN/2151/2024CRIMINAL APPLICATION NO. 2657 OF 2024 IN APPLN/2151/2024[To assist APP to oppose suspension of sentence]…..Mr. N. B. Khandare h/f Mr. D. J. Choudhary, Advocate for theApplicant in Criminal Application Nos. 2151 of 2024 and 2483 of2024.Mr. K. K. Naik, APP for Respondent-State.Mr. Gaurav L. Deshpande, Advocate for the Applicants in Applicationsfor assist to APP.…..
Legal Reasoning
CriAppln-2151-2024+-12- “i. The nature of the accusations and the severity ofpunishment in the case of conviction and the nature ofsupporting evidence.ii.Reasonable apprehension of tampering witnesses orapprehension of threat to complainant.iii. Prima facie sanctification of the court in support of thecharge.There are also other series of judicial pronouncements on abovepropositions and the same could be listed as Rama Narang v. RameshNarang and others (1995) 2 SCC 513 ; Rajesh Rajan Yadav aliasPappu Yadav v. CBI (2007) 1 SCC 70 and Sidhartha Vashisht aliasManu Sharma v. State (NCT of Delhi) (2008) 5 SCC 230 whereinscope, object and purport of Section 389 of Cr.P.C. has been distinctlyand lucidly discussed.18.Very recently, the Hon’ble Apex Court in the case of OmprakashSahni v. Jai Shankar Chaudhary and another (2023) LiveLaw SC 389has elaborately dealt with the precedent on above provision andreferred cases of Ash Mohammad v. Shiv Raj Singh alias Lalla Babuand another (2012) 9 SCC 446; Bhagwan Rama Shinde Gosai andOthers v. State of Gujarat (1999) 4 SCC 421; Hasmat [(2004) 6 SCC175]; Vijay Kumar v. Narendra and Others [(2002) 9 SCC 364]; Atul CriAppln-2151-2024+-13- Tripathi v. State of Uttar Pradesh and Others (2014) 9 SCC 177;Kishori Lal v. Rupa and Others (2004) 7 SCC 638; Ramji Prasad v.Rattan Kumar Jaiswal and Another (2002) 9 SCC 366; VasantTukaram Pawar v. State of Maharashtra (2005) 5 SCC 281 and Gomtiv. Thakurdas and Others (2007) 11 SCC 160.19.Keeping above settled legal position in mind, and on revertingto the facts in the case in hand, it is noticed that sum and substance ofthe prosecution case in trial court was that, accused persons lured andinduced various persons to hand over money by way of investment,on assurance to give handsome return and higher and double rate ofinterest. That, they intentionally played fraud on various people byinitially gaining their trust and thereafter committing criminal breachof trust and cheated many people to the tune of Lakhs of rupees.Prosecution claims that accused persons collected amount to the tuneof Rs.25,95,000/- from complainant Shubhangi and other personsand finally duped them. Hence, on receipt of complaint to that extent,accused were arrested and after investigation, they werechargesheeted for commission of offence under Section 3 of the MPIDAct and Sections 406 and 420 r/w 34 of IPC. CriAppln-2151-2024+-14- Undisputedly, trial ended up in conviction for offence underSections 406 and 420 of IPC and accused-applicants are acquittedfrom charge of commission of offence under Section 3 of the MPIDAct. 20.Admittedly, both accused have taken exception to abovejudgment by filing appeal before this court and it is during pendencyof the same, relief of suspension and grant of bail is pressed intoservice. 21.On visiting the evidence, it is noticed that case of prosecution isrested on the evidence of almost 14 witnesses and documentaryevidence comprises of RTGS slips and photocopies of cheques. Almost12 of the witnesses seem to be so called victims and most of them areladies. However, on cursorily going through the judgment, learnedtrial court in para 31 and 32 of its judgment, seems to have discussedthe evidence of almost 13 witnesses and also seems to haveappreciated the testimony of Investigating Officer and has recorded afinding that there is no document suggesting formation of anassociation, floating any scheme to invite deposits and investments.That, but there is evidence about hand-loan, sharing profit or loss andissuance of cheques by way of security. Consequently, learned trial CriAppln-2151-2024+-15- Judge recorded a finding that prosecution failed to establishcommission of offence under Section 3 of MPID Act, but as regards topoint nos. 2 and 3, findings are in affirmative regarding commissionof offence under Sections 420 and 406 of IPC, and the said findingsare now under consideration in appeal. 22.Operative part of the judgment shows that accused Suwarna issentenced to suffer 7 years imprisonment for offence under Section420 of IPC and 3 years imprisonment for offence under Section 406 ofIPC. Similarly, accused Anuradha is also sentenced for similar termfor each of the above offences. 23.After giving thoughtful consideration to the submissions, natureof accusations and even findings reached at by learned trial court, it isnoticed that both accused are ladies. Learned trial Judge has alreadygiven them clean chit from offence punishable under the MPID Act.Guilt is recorded for commission of offence under Sections 406 and420 of IPC, but it is pertinent to note that, learned trial Judge hasclearly recorded finding that there is evidence suggesting transactionof hand-loan, sharing of profit and loss and issuance of cheques byway of security. If it is so, then, there is only offence of breach of trustand cheating and admittedly, no other offence is made out. CriAppln-2151-2024+-16- 24.Resultantly, considering the above findings of trial court andalso considering the fact that applicants are ladies, and further, evenas per trial court’s judgment para 74, they seem to have alreadydeposited Rs.25,00,000/- and Rs.20,00,000/- respectively, coupledwith the fact that appeals are recently filed and same would takesome more time to be heard and decided, they are entitled for reliefas claimed. ORDERI.Criminal Application No. 2151 of 2024 and CriminalApplication No. 2483 of 2024 in Criminal Appeal No. 503 of 2024 areallowed.II.Criminal Application No. 2160 of 2024 in Criminal Appeal No.505 of 2024 also stands allowed.III.The substantive sentence imposed on both applicants i.e.,Anuradha Suresh Pawar and Suwarna Sanjay Mangate in Special Case(MPID) No. 07 of 2019 by District Judge-4 and Additional SessionsJudge, Aurangabad dated 24.05.2024 stands suspended till the finalhearing and disposal of Criminal Appeal No. 503 of 2024 andCriminal Appeal No. 505 of 2024 preferred by respective applicants. CriAppln-2151-2024+-17- IV.The applicants be released on P.R. Bond of Rs.25,000/- (RupeesTwenty Five Thousand Only) with two solvent sureties in the likeamount.V.The applicants shall not commit any criminal activity.VI.The applicants shall remain present before the learned trialJudge once in three months, till final hearing and disposal of theappeal, commencing from the date they tender bail papers andthereafter, the trial Judge to fix dates for their subsequentappearances.VII.In case of two consecutive defaults on the part of the applicantsto remain present before the trial court, the trial court to inform thiscourt about the same and in that eventuality, the prosecution wouldbe at liberty to file an application for cancellation of bail granted tothe applicants.VIII.Bail before the trial court. [ABHAY S. WAGHWASE, J.]vre
Arguments
CriAppln-2151-2024+-2- WITHCRIMINAL APPLICATION NO. 2160 OF 2024 IN APPEAL/505/2024[For suspension of sentence and grant of bail]Suwarna Sanjay MangateAge 44 Years, Occu. Household,R/o. Plot No. 269, Tejmani Bungalow,Opp. Jain Temple, N-3, CIDCO,Aurangabad.… Applicant[Accused No.1]VersusThe State of Maharashtra… RespondentWITHCRIMINAL APPLICATION NO. 2637 OF 2024 IN APPLN/2160/2024CRIMINAL APPLICATION NO. 2638 OF 2024 IN APPLN/2160/2024CRIMINAL APPLICATION NO. 2641 OF 2024 IN APPLN/2160/2024CRIMINAL APPLICATION NO. 2642 OF 2024 IN APPLN/2160/2024CRIMINAL APPLICATION NO. 2643 OF 2024 IN APPLN/2160/2024CRIMINAL APPLICATION NO. 2644 OF 2024 IN APPLN/2160/2024CRIMINAL APPLICATION NO. 2645 OF 2024 IN APPLN/2160/2024CRIMINAL APPLICATION NO. 2647 OF 2024 IN APPLN/2160/2024[To assist APP to oppose suspension of sentence]…..Mr. Satej S. Jadhav, Advocate for the Applicant in CriminalApplication No. 2160 of 2024.Mr. K. K. Naik, APP for Respondent-State.Mr. Gaurav L. Deshpande, Advocate for the Applicants in Applicationsfor assist to APP...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 03.07.2024Pronounced on: 05.07.2024 CriAppln-2151-2024+-3- ORDER : 1.Both the applications bearing Criminal Application Nos. 2151and 2483 of 2024 at the instance of original accused no.2, as well asCriminal Application No. 2160 of 2024 at the instance of originalaccused no.1, are filed invoking provisions of Section 389 of the Codeof Criminal Procedure [Cr.P.C.], praying to suspend the sentenceawarded by learned District Judge-4 and Additional Sessions Judge,Aurangabad dated 24.05.2024 in Special Case (MPID) No. 07 of 2019recording guilt of applicants for offence under Sections 406 and 420of the Indian Penal Code [IPC]. In the same applications, applicantshave also prayed relief of bail during pendency of appeals preferredby them.2.On the other hand, rest all applications are preferred by theinvestors seeking leave to assist learned APP in opposing the relief ofsuspension of sentence.3.Heard.4.At the threshold, learned APP has raised objection thatapplicants have not paid fine amount and unless it is paid, theirapplications cannot be heard. Arguments of both learned counsel foraccused applicants as well as State were heard. Judgment of this very CriAppln-2151-2024+-4- Court in Ashvin Chinubhai Shah v. State of Maharashtra and another(Interim Application No. 744 of 2019 in Criminal Appeal No. 1392 of2019 decided on 08.06.2023), puts to rest the above issue. In aboveappeal, this Court in para 15 has held and clarified that sentence offine can be suspended while exercising powers under Sub-Section (1)of Section 389 of Cr.P.C.. Resultantly, taking support of the same,instant matter can be heard and decided even if fine amount directedby trial court is not deposited. 5.Applications of both the applicants are arising out of one andthe same judgment and relief sought being identical, the same aredealt and decided by way of this common order.6.So far as applications filed by the investors are concerned, forthe reasons mentioned in the applications, the applicants arepermitted to assist learned APP, if and when required, and thoseapplications stand disposed of.Criminal Application Nos. 2151 and 2483 of 20247.Learned counsel Mr. Khandare, representing the applicant inCriminal Application Nos. 2151 of 2024 and 2483 of 2024 wouldpoint out that applicant is a lady. Her appeal bearing Criminal Appeal CriAppln-2151-2024+-5- No. 503 of 2024 is pending. It is pointed out that applicant was triedfor charges under Section 3 of the Maharashtra Protection of Interestof Depositors (in Financial Establishments) Act, 1999 [MPID Act] andSections 406 and 420 of IPC. He pointed out that trial culminated intoacquittal from the charge under the provisions of the MPID Act.However, learned trial court held applicant guilty for offence underSections 406 and 420 of IPC. He emphasized that his client was onbail during entire trial. He further pointed out that, as ordered by thetrial Judge, applicant has already deposited Rs.11,00,000/- when herliability is noted to be just Rs.10,10,000/-. 8.On above background, learned counsel appraised this Courtabout the story of prosecution in the trial court and would point outthat prosecution came to be launched on the premise that accusedwere conducting business. They lured their acquainted persons toinvest money by promising handsome returns. That, double interestwas assured and believing accused, several persons, most of whomare ladies, invested huge amounts. That, there are allegations thatthey have intentionally and fraudulently amassed huge amount andduped alleged investors. He submitted that, it is also the case ofprosecution that, there is criminal breach of trust as well as cheatingto those persons. CriAppln-2151-2024+-6- 9.Learned counsel would strenuously submit that, thoughprosecution came with above allegations and accusations, none of thecharges of criminal breach of trust or even cheating could be madeout from entire prosecution evidence. According to him, here, therewas voluntary participation in the business and no false assurances orany rosy picture was painted, as is claimed by prosecution. Accordingto him, prosecution in fact had no foundation or supportive oral ordocumentary evidence to substantiate the above charge. He pointedout that on one hand, prosecution came with the case that there wasassurance of high returns or double returns, and second theory putforth at the same time was that there was inducement to enter intopartnership. According to him, there were mere oral agreements andno documents or independent evidence about privity of contract tocarry out business. That, whatever transactions had taken place, werein the form of hand loan out of long acquaintances and evenprosecution witnesses themselves are testifying to that extent. 10.He further pointed out that in fact, trial court has rejectedprosecution version on the point of charge under the MPID Act.Therefore, according to him, prosecution version had suffered severeblow then and there itself. He would submit that moreover, CriAppln-2151-2024+-7- complainant herself has admitted that there was no scheme, noagreement or no assurance of returning double amount or interest. Insupport of such submissions, learned counsel took this Court throughthe cross of the complainant. As regards to allegation of partnershipbusiness is concerned, he pointed out that there there is no writtenpartnership deed so as to accept prosecution version to that extent. 11.Learned counsel also took this Court through the observationsdrawn by learned trial court, more particularly in para 15, 17, 18 and20 and would submit that same are erroneous findings and are inabsence of foundation and cogent record, and hence appeal has beenpreferred. According to him, it is in fact a case of no evidence.According to him, therefore, there are better and fair chances ofsecuring acquittal in appeal which has been preferred. He furtheradded that during trial, applicant was on bail. There is no adverseremark. That, more than the amount directed by the trial court isalready deposited. Therefore, in such background, considering the conviction onlyto be for offence under Sections 406 and 420 of IPC, he prays to grantrelief as prayed. CriAppln-2151-2024+-8- Criminal Application No. 2160 of 202412.Learned counsel Mr. Satej Jadhav, appearing for the applicantin Criminal Application No. 2160 of 2024, adopted the abovearguments advanced by Mr. Khandare, and would add that there isapparently improper appreciation by trial court i.e. both, of oral anddocumentary evidence. Even according to him, the essentialingredients of Sections 406 and 420 IPC were patently missing andtherefore, such judgment has been taken exception to by filing appeal.Even he pointed out that his client has fairly better chance ofsucceeding in the appeal. He also invited attention of the court to thereasoning part of judgment. He too emphasized that his client hasbeen acquitted of main charge of commission of offence under theMPID Act. He also invited attention of the court to the cross faced byPW1, PW2 and PW3. He specifically asserted that, there is noconvincing oral or documentary evidence in support of theaccusations even for attracting provisions of Sections 406 and 420 ofIPC. According to him, essential components and ingredients toattract both charges are not available in the prosecution evidence andtherefore, he has every hope of succeeding in the appeal. Further,according to him, his client has already deposited Rs.25,00,000/-. CriAppln-2151-2024+-9- 13.Above applications are strongly resisted by learned APP whowould point out that, witnesses who were lured to invest and who arecheated with huge amount, on realizing that they have been duped,lodged complaint and have also stepped into the witness box. LearnedAPP took this Court through the complaint as well as testimony ofPW1 informant and other witnesses and would submit that they areall consistent. That, both applicants-accused gave false assurance ofhuge returns. That, to gain the trust, they have also at the initialstage, handed over cheques. Trusting accused, many ladies haveparted with their hard earned earnings and deposits. Finally, Therewere no returns and they have lost their earnings and so they havetaken recourse to law by filing complaint. He pointed out that, aftergathering sufficient evidence, accused were made to face trial and onfull fledged trial, their guilt has been established and affirmed foroffence under Sections 406 and 420 of IPC. That, they have playedfraud and cheated complainant and others. It is an economic fraudand their modus operandi revealed their ill intentions to dupe people.Considering the gravity of the offence and guilt being recorded,learned APP prays to reject the applications. 14.Learned counsel for intervenors also brought to the notice ofthis Court that, huge amounts have been swallowed. There is CriAppln-2151-2024+-10- deception played on investors and they are induced to part with hugeamounts. It was a design since inception. He pointed out that, some ofthem have sold their ornaments by believing the accused. He pointedout that complainant and others have also decided to challenge theorder of trial court acquitting applicants from charge attractingprovisions of MPID Act. For all above reasons, he also resists therelief. 15.In the instant proceedings, Section 389 of Cr.P.C. has beeninvoked in support of relief of suspension of sentence and grant ofbail during pendency of appeal. Both accused applicants undisputedlyhave challenged judgment and order passed by learned AdditionalSessions Judge dated 24.05.2024 in Special Case (MPID) No. 07 of2019 by filing distinct appeals and the same are pending. 16.Before testing the entitlement of relief, it would be profitable togive a brief account of the settled legal position and principles whichare to be borne in mind while exercising powers under Section 389 ofCr.P.C. 17.Above provision not only empowers appellate court to stall andsuspend sentence awarded by trial court during pendency of appeal,but also to enlarge convict on bail. It is fairly settled position that such CriAppln-2151-2024+-11- powers are to be exercised only when it is palpably shown that thereare fair chances of success in appeal and when appellate court is morethan satisfied about existence of any apparent and gross error on theface of record i.e. by the trial court while delivering the judgment. Itis equally settled position that, at this stage, appellate court is notexpected to undertake meticulous re-appreciation of the evidence.Going by such precedents, which are expounded by the Hon’bleApex Court, in numerous and series of judgments, wherein it has beenheld that, apart from seeing whether convict stands a fair chance ofacquittal, certain other factors like gravity of offence, nature of thecrime, circumstances in which offence has taken place, its impact onindividual or on society, are also some of the considerations which areexpected to be borne in mind while exercising powers under Section389 of Cr.P.C. In the case of Anwari Begum v. Sher Mohammad and Another(2005) 7 SCC 326, of which recently recourse was also taken by theHon’ble Apex Court in the case of Shivani Tyagi v. State of U.P. 2024LiveLaw (SC) 333, wherein the court laid down certain factors to belooked into while deciding application under Section 389 Cr.P.C.,which are as under: