Mayank N Shah vs State Of Gujarat on 18 December, 2019


Supreme Court of India

Mayank N Shah vs State Of Gujarat on 18 December, 2019

Author: R. Subhash Reddy

Bench: Mohan M. Shantanagoudar, R. Subhash Reddy

Crl.A.No.2298 of 2010



                                                                                     REPORTABLE


                                              IN THE SUPREME COURT OF INDIA

                                             CRIMINAL APPELLATE JURISDICTION

                                             CRIMINAL APPEAL NO.2298 OF 2010


                             Mayank N Shah                                     …..Appellant

                                   Versus

                             State of Gujarat & Anr.                           …..Respondents




                                                        JUDGMENT

R. Subhash Reddy, J.

1. This criminal appeal is filed by the accused no.4, aggrieved by the

judgment dated 16.10.2008, passed in Criminal Appeal No.324 of 1987,

by the High Court of Gujarat at Ahmedabad, confirming the judgment

and order of conviction dated 02.04.1987 passed by the learned Special

Judge, Ahmedabad in Special Case No.13 of 1979.

2. On 21.07.1976, a complaint was lodged by Divisional Manager,
Signature Not Verified
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:

appellant/accused no.4 and four others which came to be registered as

1
Crl.A.No.2298 of 2010

C.R. No.43 of 1976. It was alleged in the complaint that M/s. New

Russian Automobiles is a registered partnership firm engaged in the

business of manufacturing crank-shafts for jeeps, ambassador cars,

tractors, diesel engines etc., from their manufacturing unit at plot bearing

no.155, C1-B/3 situated in Industrial Area, Naroda Taluka of

Ahmedabad District. It was alleged that during the relevant time

accused no.1 was serving as Branch Manager of Central Bank of India,

Ahmedabad, whereas accused nos.2 and 3 were partners of M/s. New

Russian Automobiles along with two others. As per the complaint,

appellant herein/accused no.4 was at the relevant time serving as Chief

Manager (Operations) with the firm and accused no.5 was serving as

office Superintendent. It was further stated in the complaint that original

accused no.2 applied to the Central Bank of India for availing certain

loan facilities for the firm. Accordingly, various facilities such as Term

Loan facility, Cash Credit Open Loan facility, Usance Bills facility, Clean

Endorsed Out-stationed Third Parties Cheques Discounting facility etc.

were extended from time to time at the instance of accused no.1.

According to the complainant, accused no.2 apart from being a partner

in the partnership firm, had also floated three other fictitious proprietary

concerns at Bombay, i.e., (i) M/s. Technical Export Import Association;

(ii) M/s. Alloy Steel Corporation; and (iii) M/s. Auto Parts Centre. It was

further the case of the complainant that under the Usance Bills facility,

the partnership firm used to offer its bills drawn on different outstation

2
Crl.A.No.2298 of 2010

parties and along with the said bills they have produced railway receipt,

motor receipt, invoices for the value of the goods sold to the parties and

also the hundis drawn upon the purchases and all the said documents

were signed by accused nos.2 to 5. On such presentation, bank used to

grant credit facility by forwarding the bills with necessary documents to

the out-stationed bankers named in the bill and the out-stationed parties

used to accept the hundis for the value of goods sent along with the bill

and the out-stationed bank used to deliver to the said party railway

receipt or motor receipt along with the invoices. As stated in the

complaint, the out-stationed parties then used to pay up the amount of

hundis to their partner within the time fixed by the hundis and such

bankers used to send necessary amount to the Central Bank,

Gheekanta Branch, Ahmedabad. It was the allegation in the complaint

that all the accused persons hatched a conspiracy to cheat the bank and

they managed to get fake motor receipts alleged to have been issued by

one Bombay General Freight Carriers Pvt. Ltd., Bombay. As alleged in

the complaint, the appellant/accused no.4 and accused no.5 presented

to the bank 25 bills for the total amount of Rs.18,57,064.40 during the

period from October 1975 to March 1976 and in the said manner, the

firm has availed the credit facility from the bank against such bills, by

presenting fake transport receipts. It is alleged that on certain occasions

forged receipts were produced with Out-stationed Bills Discounted

(O.B.D.) and Bills Purchased (B.P.) and in all 25 bills were presented

3
Crl.A.No.2298 of 2010

with forged motor transport receipts and out of the said bills, 11 bills

totalling to Rs.6,02,160/- were drawn upon a fictitious firm, namely, M/s.

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).

3. After completion of the investigation on the complaint, all the

accused were charged for the offences punishable under Sections 161,

166, 420, 468 and 471, IPC read with Sections 5(1)(d) and 5(2) of

4
Crl.A.No.2298 of 2010

Prevention of Corruption Act, 1947. All the accused pleaded not guilty

to the charges and claimed trial.

4. The prosecution has examined in all 44 witnesses apart from the

documentary evidence. On appreciation and evaluation of the evidence

on record adduced by the prosecution both oral as well as documentary,

the learned Special Judge held the appellant is guilty for the offences

charged and imposed the sentence for the various offences, which

reads as under :

“R.I. for a period of two years 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 two years 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 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.”

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.

6. We have heard Sri Basava Prabhu Patil, learned senior counsel

appearing for the appellant and Ms. Sonia Mathur, learned senior

counsel appearing for the C.B.I.

7. It is contended by learned senior counsel for the appellant that the

appeal was decided by the High Court without giving adequate

opportunity, to the appellant to present his case on merits. It is

submitted that during the pendency of the appeal, before the High Court,

the advocate who has presented the appeal on behalf of the appellant

was elevated as the Judge of the High Court and thereafter notice

issued by the High Court was not received by the appellant, as he has

shifted to Pune and the High Court has disposed of the appeal by

appointing amicus curiae, who was no other than junior advocate of the

counsel for the C.B.I. In view of the same, it is submitted that it is a fit

case to remand the matter to the High Court. Further it is submitted that

conviction of the appellant is solely based on circumstantial evidence

and the appellant was the salaried employee of the firm working as

Chief Manager (Operations). He was not benefitted in any manner and

he was submitting the bills and invoices as per the instructions of the

accused no.2. That the companies which were floated by the accused

no.2 were his proprietary concerns. It is submitted that he was

preparing the invoices and bills during his routine office work on the

6
Crl.A.No.2298 of 2010

basis of information received from the factory and submitted to the bank.

It is submitted that in absence of any direct evidence connecting the

appellant to the alleged illegalities the High Court as well as the trial

court fell in error in recording conviction of the appellant for the offence

alleged.

8. On the other hand, learned senior counsel appearing for the

respondents has submitted that the appellant/accused no.4 was working

as Chief Manager (Operations) with M/s. New Russian Automobiles and

he had drawn almost all O.B.D. and B.P. bills on behalf of the firm. It is

submitted that from the documentary evidence placed on record, it is

amply clear that appellant was very well knowing that the bank was

being deceived by showing highly inflated amounts in the O.B.D. bills. It

is submitted that appellant has signed all the bills which were submitted

along with forged receipts to the bank. Further it is stated that he has

attested all the 11 photocopies of exhibits 942 to 952 as true copies of

the forged invoices issued by M/s. Alloy Steel Corporation. It is

submitted, thus the appellant herein was party to the offence of cheating

and forgery upon the bank.

9. Having heard learned counsel on both sides, we have perused the

judgments of the trial court, as well as High Court.

10. On appreciation of oral and documentary evidence on record, trial

court/Special Court has convicted the accused nos.1 to 4, and the High

Court by the impugned judgment confirmed the conviction and sentence

7
Crl.A.No.2298 of 2010

imposed on the appellant. When the advocate on record who filed the

appeal was elevated to the Bench, it was for the appellant to make his

own arrangement for appointing another advocate in the place of earlier

advocate on record. Appellant did not take any steps in this regard.

Even notice sent to the appellant was not received by him for want of

correct address. As such there was no option except to proceed for

disposal of the appeal filed by the appellant, by appointing amicus

curiae. On the mere allegation of the appellant that the amicus curiae

appointed was earlier junior counsel of C.B.I. advocate, is no ground to

interfere with the impugned judgment. Having perused the findings

recorded by the trial court/Special Court and of the High Court, we are of

the view that the findings recorded in support of the case of the

prosecution were in conformity with the oral and documentary evidence

on record. We are satisfied from the findings recorded that the appellant

knowing fully well that the invoices/bills were fake and fabricated, were

presented on behalf of the firm to the bank and thus cheated the bank.

The prosecution has proved the guilt of the appellant herein beyond

reasonable doubt to record conviction of the appellant.

11. Though the learned counsel for the appellant relied on the

judgments in the case of Central Bureau of Investigation, Hyderabad v.

K. Narayana Rao1; K.R. Purushothaman v. State of Kerala2; Bharati

Telenet Ltd. V. Subhash Jain & Ors.3; and A.S. Krishnan & Ors. V. State
1
(2012) 9 SCC 512
2
(2005) 12 SCC 631
3
(2005) 11 SCC 599

8
Crl.A.No.2298 of 2010

of Kerala4, having regard to facts of the case and evidence on record, of

the case on hand, we are of the view that the said judgments are not

helpful in support of the case of the appellant.

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.

….………………………………..J.

[N.V. RAMANA]

….………………………………..J.

[R. SUBHASH REDDY]

….………………………………..J.

[B.R. GAVAI]

10
Crl.A.No.2298 of 2010

New Delhi.

December 18, 2019.

11



Source link