Dinesh Kumar Sinha Vs. State of Jharkhand and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/523383
SubjectCriminal
CourtJharkhand High Court
Decided OnOct-15-2008
Judge R.R. Prasad, J.
Reported in[2009(1)JCR136(Jhr)]
AppellantDinesh Kumar Sinha
RespondentState of Jharkhand and ors.
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 3. as against this, learned counsel appearing for the cbi submitted that this is one of the fodder scam cases whereby suppliers in connivance with animal husbandry department officials and also treasury officials as well as other persons involved in the case did withdraw huge amount on the basis of fake supply bills as well as fake allotment letters and thereby accused persons put the state exchequer to a great loss and that so far this appellant is concerned, he is one of the partners of m/s.orderr.r. prasad, j.1. heard learned counsel appearing for the appellant and learned counsel appearing for the cbi on the matter of bail.2. learned counsel appearing for the appellant submitted that the appellant having been convicted for the offences under section 120(b) read with sections 409, 420, 467, 468, 471/465 and 477-a of the indian penal code as also under section 13(2) read with section 13(1)(c)(d) of the prevention of corruption act was awarded maximum sentence for four years for one of the offences on the allegation that the appellant being one of the partners of m/s. ceplac pharmaceutical, ranchi took payment without supplying the medicines to the animal husbandry department and thereby the appellant along with his brother satendra kumar, the other partner of the firm in connivance with officials of animal husbandry department and others put the state exchequer to loss to great extent but the fact is that the appellant had nothing to do with the day-to-day affairs of the business of m/s. ceplac pharmaceutical, rather it was satendra kumar, brother of the appellant, who was looking after the entire affairs of the said pharmaceutical company and this fact was stated by the appellant to the investigating officer (pw 151) even at the time of investigation and same fact was reiterated by the appellant in his statement made under section 313 of the code of criminal procedure. furthermore the said fact gets substantiated from the evidence of pw 53, chief executive officer, pcb pvt. ltd. (consultancy firm) and also from the evidence of pw 26, branch manager, indian bank, who have testified that it was satendra kumar, who mostly did the banking transaction. on the other hand, none of the prosecution witness has come forward to say about the involvement of the appellant with the business of the said pharmaceutical firm and as such, the appellant has wrongly been convicted and under these circumstances, the appellant deserves to be admitted on bail particularly when the appellant has already been underwent the period of sentence for more than 17 months.3. as against this, learned counsel appearing for the cbi submitted that this is one of the fodder scam cases whereby suppliers in connivance with animal husbandry department officials and also treasury officials as well as other persons involved in the case did withdraw huge amount on the basis of fake supply bills as well as fake allotment letters and thereby accused persons put the state exchequer to a great loss and that so far this appellant is concerned, he is one of the partners of m/s. ceplac pharmaceutical, who actively associated himself with the business of the said firm which would be evident from the fact that the appellant along with his other partner under the joint signatured had made transaction with the account of the said firm through cheques (exts. 19, 19/1. 19/2. 19/3, 19/6, 19/7, 19/8, 19/9 and 19/10) and the signatures of the appellant on the said documents on examination by the hand writing expert were found to be of the appellant.4. moreover, the amount 1 received on account of alleged supply of the medicine to the department was deposited with the pay-in-slips (exts. 14/22 and 14/23) under the signature of this appellant which go to show that the appellant was very much concerned with day-to-day affairs of the business of the said firm and, therefore, the trial court has rightly convicted and sentenced the appellant.5. regard being had to the facts and -circumstances of the case, i am not inclined to grant bail to the appellant. hence, the prayer for bail of the appellant is rejected. however, the appellant would be at liberty to move for bail after serving half of the sentence of the maximum sentence imposed by the trial court, if the appeal is not taken up for hearing before that.
Judgment:
ORDER

R.R. Prasad, J.

1. Heard learned Counsel appearing for the appellant and learned Counsel appearing for the CBI on the matter of bail.

2. Learned Counsel appearing for the appellant submitted that the appellant having been convicted for the offences under Section 120(B) read with Sections 409, 420, 467, 468, 471/465 and 477-A of the Indian Penal Code as also under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act was awarded maximum sentence for four years for one of the offences on the allegation that the appellant being one of the partners of M/s. Ceplac Pharmaceutical, Ranchi took payment without supplying the medicines to the Animal Husbandry Department and thereby the appellant along with his brother Satendra Kumar, the other partner of the firm in connivance with officials of Animal Husbandry Department and others put the State Exchequer to loss to great extent but the fact is that the appellant had nothing to do with the day-to-day affairs of the business of M/s. Ceplac Pharmaceutical, rather it was Satendra Kumar, brother of the appellant, who was looking after the entire affairs of the said Pharmaceutical Company and this fact was stated by the appellant to the Investigating Officer (PW 151) even at the time of Investigation and same fact was reiterated by the appellant in his statement made under Section 313 of the Code of Criminal Procedure. Furthermore the said fact gets substantiated from the evidence of PW 53, Chief Executive Officer, PCB Pvt. Ltd. (Consultancy firm) and also from the evidence of PW 26, Branch Manager, Indian Bank, who have testified that it was Satendra Kumar, who mostly did the banking transaction. On the other hand, none of the prosecution witness has come forward to say about the involvement of the appellant with the business of the said Pharmaceutical firm and as such, the appellant has wrongly been convicted and under these circumstances, the appellant deserves to be admitted on bail particularly when the appellant has already been underwent the period of sentence for more than 17 months.

3. As against this, learned Counsel appearing for the CBI submitted that this is one of the Fodder Scam cases whereby suppliers in connivance with Animal Husbandry Department Officials and also Treasury Officials as well as other persons involved in the case did withdraw huge amount on the basis of fake supply bills as well as fake allotment letters and thereby accused persons put the State Exchequer to a great loss and that so far this appellant is concerned, he is one of the partners of M/s. Ceplac Pharmaceutical, who actively associated himself with the business of the said firm which would be evident from the fact that the appellant along with his other partner under the joint signatured had made transaction with the account of the said firm through cheques (Exts. 19, 19/1. 19/2. 19/3, 19/6, 19/7, 19/8, 19/9 and 19/10) and the signatures of the appellant on the said documents on examination by the Hand Writing Expert were found to be of the appellant.

4. Moreover, the amount 1 received on account of alleged supply of the medicine to the Department was deposited with the pay-in-slips (Exts. 14/22 and 14/23) under the signature of this appellant which go to show that the appellant was very much concerned with day-to-day affairs of the business of the said firm and, therefore, the trial Court has rightly convicted and sentenced the appellant.

5. Regard being had to the facts and -circumstances of the case, I am not inclined to grant bail to the appellant. Hence, the prayer for bail of the appellant is rejected. However, the appellant would be at liberty to move for bail after serving half of the sentence of the maximum sentence imposed by the trial Court, if the appeal is not taken up for hearing before that.