1. This appeal has been preferred by the appellant-Ashok Sehgal against the impugned judgment and order dated 9.10.2020, passed by Special Judge, Anti Corruption, CBI Court No.1, Ghaziabad, in Special Case No.4 of 2020 (CBI vs. Ashok Sehgal @ Rajneesh Jain) under Sections 120B, 420, 467, 468, 471 & 379 IPC at Police Station-CBI Dehradun, District-Dehradun, in which accused appellant was convicted and awarded sentence of three years and six months R.I. with fine of Rs.2 lakh and in default of fine, two years' imprisonment under Section 467 IPC, three years and six months R.I. with fine of Rs.2 lakh and in default of fine, two years' imprisonment under Section 471 IPC, three years and six months R.I. with fine of Rs.2 lakh and in default of fine, two years' imprisonment under Section 120B IPC, two years R.I. with fine of Rs.1 lakh and in default of fine, one year imprisonment under Section 468 IPC, two years R.I. with fine of Rs.1 lakh and in default of fine, one year imprisonment under Section 420 IPC and two years R.I. with fine of Rs.1 lakh and in default of fine, one year imprisonment under Section 379 IPC. It was directed by learned trial court that except imprisonment in default of fine, all sentences shall run concurrently.
2. The brief facts of the case are that a case was registered in CBI, ACB, Dehradun Branch on 1.2.2006 under Sections 120-B, 420, 467, 468, 471, 477-A IPC and Section 13(2) read with Section 13(1) (d) of PC Act, 1998 against Shri Dinesh Kumar Singh, the then Branch Manager, Prathama Bank, Lodhipur Rajpoot Branch, District-Moradabad, UP; Shri Kamal Kumar Verma and Rajneesh Jain, Chairman and Secretary respectively of Vinayak Group Housing Co-operative Society Ltd., New Delhi, on the basis of a written complaint dated 1.2.2006 of Shri T.V. Bhatt, the then Chairman, Prathama Bank, Head Office, Moradabad, U.P. It was alleged in complaint that Dinesh Kumar Singh, Branch Manager, Prathama Bank, entered in criminal conspiracy with Rajneesh Jain and Kamal Kumar Verma with the intention to cheat Prathama Bank, Lodhipur. In pursuance of said criminal conspiracy, Dinesh Kumar Singh without verifying the bona fides of the party, opened Current Account No.02/04, on 26.7.2004 in the said bank. It is further alleged that Dinesh Kumar Singh by abusing his official position as public servant, dishonestly and fraudulently allowed deposit o f 1612 tampered interest/dividend warrants and sent the same for collection/clearing. The credited amount of these tampered interest/dividend warrant was allowed for withdrawal to the party, thus caused wrongful gain to the tune of Rs.37,36,437.16 to the party and corresponding wrongful loss to the bank. During investigation, it is revealed that Dinesh Kumar Singh while posting as Branch Manager, Lodhipur, during the period 2005-05 entered into a criminal conspiracy with Ashok Sehgal @ Rajneesh Jai and some other persons with the object to cheat and in pursuance of criminal conspiracy a Current Account No.CA2/04 in the name of Vinayak Group Housing Co-operative Society Ltd was opened on the basis of forged documents in Prathama Bank, Lodhipur, on 26.7.2004 and thereafter various cheques/dividend warrants issued under various schemes of UTI Mutual Fund in the name of different investors, who were resident investors and residents of different places of Bihar, Jharkhand, West Bengal etc. fraudulently and credited in the said account and subsequently an amount of Rs.37,35,000/- was withdrawn.
3. After completion of the investigation, charge-sheet in the case was filed in the court of Special Judge, CBI, Ghaziabad, against Dinesh Kumar Singh, Ashok Sehgal @ Rajneesh Jain, Kamal Kumar Verma @ Vinod Kumar, Rajeev Relhan @ Rajeev Kalra, Sanjeev Relhan, Om Bajaj @ Om Prakash and Amit Aggarwal @ Manish Kumar Aggarwal under Sections 120-B, 420, 467, 468, 471, 379 IPC and 13(2) read with Section 13(1) (d) of PC Act, 1988.
4. The charge had been framed against accused-appellant Ashok Sehgal @ Rajnish Jain on 24.2.2012 for the offence punishable under Sections 120-B read with Sections 420, 467, 468, 471 and 379 IPC. Statement of the accused had been recorded and the appellant pleaded not guilty and claim for trial. Hence this appeal.
5. Heard Shri Santosh Tripathi, learned counsel for the appellant, Shri Gyan Prakash, learned Senior Advocate, assisted by Shri Sanjay Kumar Yadav, learned counsel for the CBI and perused the record.
6. At the very outset, learned counsel for the appellant submitted that maximum awarded sentence is of three and half years which is going to complete very soon. Hence, appellant is not pressing this appeal on its merit. It is also submitted that fine imposed by trial court is very excessive and imprisonment in default is also very harsh and excessive. Hence, learned counsel for the appellant prayed for reducing the imposed fine as well as imprisonment in default.
7. Shri Gyan Prakash, learned Senior Advocate appearing on behalf of CBI, submitted that trial court has considered all the pleas taken by the appellant and has imposed adequate sentence.
8. In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926, explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:
"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
9. 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
10. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323, State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.
11. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.
12. Since the learned counsel for appellant has not pressed the appeal on merits, however, this Court, after perusal of the entire evidence on record and judgment of the learned Trial Court, considers that the appeal is devoid of merit and is liable to be dismissed. Hence, the conviction of the appellant is upheld.
13. As discussed above, reformative theory of punishment is to be adopted and for that it is necessary to impose punishment keeping in view 'doctrine of proportionality'. Perusal of impugned judgment shows that main sentence awarded by learned trial court is adequate, but the amount of fine and imprisonment in default is very harsh. As discussed above, Hon'ble Apex Court has held that undue harshness should be avoided keeping in view the reformative approach underlying in criminal justice system.
14. In my considered opinion, modification of fine imposed and imprisonment in default of that should be reduced to meet the ends of justice. Hence, sentence awarded to appellant is modified to the extent that appellant-Ashok Sehgal @ Rajneesh Jain shall undergo three years and six months R.I. with fine of Rs.1 lakh and six months imprisonment in default of fine under Section 467 IPC, three years and six months R.I. with fine of Rs.1 lakh and in default of fine, six months imprisonment under Section 471 IPC, three years and six months R.I. with fine of Rs.1 lakh and in default of fine, six months imprisonment under Section 120-B IPC, two years R.I. with fine of Rs.50,000/-and in default of fine, three months imprisonment under Section 468 IPC, two years R.I. with fine of Rs.50,000/- and in default of fine, three months imprisonment under Section 420 IPC and two years R.I. with fine of Rs.50,000/- and in default of fine, three months imprisonment under Section 379 IPC. Except imprisonment in default of fine, all other sentences shall run concurrently.
15. Accordingly, the conviction is upheld. The appeal is partly allowed with the modification of the sentence as above.
Order Date :- 27.8.2021 LN Tripathi