(Per :
HONOURABLE MR.JUSTICE PARESH UPADHYAY) Heard Mr.B.B.Naik learned senior advocate with Mr.Sanjay Prajapati for the applicant, Mr.H.K.Patel, learned APP for the State and Mr.Y.N.Ravani learned counsel for Central Bureau of Investigation (CBI).
Rule.
Mr.H.K.Patel, learned APP for the respondent-State and Mr.Y.N.Ravani, learned counsel for CBI waives service of rule for respective respondents.
This application is filed praying for suspension of sentence imposed upon the present applicant by learned Special C.B.I.Judge, Court No.4, Ahmedabad by judgment and order dated 30.5.2012 in CBI Special Case No.39 of 1990. The maximum sentence imposed is of 5 years for offences punishable under Sections 420, 467, 468 and 471 read with Section 120-B of the Indian Penal Code. Fine of Rs.50,000/- is imposed and in default, rigorous imprisonment for 9 months, is imposed.
The following aspects are considered:
The prosecution theory was to the effect that there was siphoning of money of ONGC by its officers, original accused Nos. 1 to 3, and the same was facilitated by accused Nos. 4 and 5 who were outsiders. It is pointed out by learned counsel for C.B.I. that the present applicant was a person who had opened an account by impersonation with nationalized Bank. Be it noted that officers of ONGC who were accused Nos.1,2 and 3 are acquitted (accused No.2 since died, the sessions case stood abated qua him). It is pointed out to the Court by learned counsel for the applicant that at present a picture has emerged which creates altogether a new prosecution theory, which would go counter to principal theory, which is recorded in paragraph Nos.1 and 2 of the judgment. Since we are considering this application for the purpose of suspension of sentence, detailed discussion in that regard is not recorded, and we leave the matter there.
Learned counsel for CBI Mr.Ravani has pointed out that acquittal appeals qua original accused Nos. 1 and 3 are in contemplation and the same shall be filed before the Court in due course.
In this background and for the reasons, recorded in brief above and considering the acquittal of principal accused and the short sentence awarded upon the present applicant, this Court is inclined to exercise the discretion in favour of the applicant.
It is ordered that the sentence imposed upon the present applicant-original accused No.5 by learned Special C.B.I.Judge, Court No.4, Ahmedabad in CBI Special Case No.39 of 1990 shall stand suspended during the pendency of Criminal Appeal No.751 of 2012 and it is ordered that the applicant, Mahammad Hanif Gohel S/o Ahmedbhai Gohel shall be enlarged on bail on his furnishing the bail bond of Rs.5,000/- and one solvent surety of the like amount with the further direction that he shall surrender his passport, if any.
Application is allowed accordingly. Rule made absolute.
Direct service is permitted.
(RAVI R.TRIPATHI, J.) (PARESH UPADHYAY, J.) (ashish) Top