Court No. - 82
Case :- CRIMINAL APPEAL No. - 2129 of 2012 Appellant :- Prem Raj Bhatnagar Respondent :- State of U.P.
Counsel for Appellant :- U.K. Pandey,Deepak Kumar Srivastava Counsel for Respondent :- Govt. Advocate,Amit Mishra (Cbi),Anurag Khanna,Gyan Prakash WITH Case :- CRIMINAL APPEAL No. - 1088 of 2012 Appellant :- Prem Raj Bhatnagar Respondent :- State of U.P.
Counsel for Appellant :- U.K. Pandey Counsel for Respondent :- Govt. Advocate
Hon'ble Harsh Kumar,J.
1. The instant criminal appeal no.2129 of 2012 has been filed against the impugned judgment and order of conviction and sentence dated 9.5.2012 passed by Special Judge, Prevention of Corruption (C.B.I.), Ghaziabad in Special Case No.63 of 2005 (C.B.I. Vs. Prem Raj Bhatnagar), whereby the Special Judge convicted appellant for the offences under Sections 409, 467, 472 I.P.C. and Section 13(1)(c) read with Section 13(2) of Prevention of Corruption Act, 1988 and sentenced him with rigorous imprisonment for a period of 7 years and fine of Rs.50,000/- under Section 409 I.P.C., rigorous imprisonment for a period of 5 years and fine of Rs.10,000/- under Section 467 I.P.C., rigorous imprisonment for a period of 3 years and fine of Rs.5,000/- under Section 472 I.P.C., and rigorous imprisonment for a period of 5 years and fine of Rs.25,000/- under Section 13(1)(c) read with Section 13(2) of Prevention of Corruption Act, 1988 and in case of default in payment of aforesaid fine sentenced with imprisonment for additional period of six months, four months, three months and four months respectively.
2. Instant criminal appeal no.1088 of 2012 has been filed against the impugned judgment and order of conviction dated 25.1.2012 and sentence dated 27.1.2012 passed by Special Judge, Prevention of Corruption (C.B.I.), Ghaziabad in Special Case No.64 of 2005, (C.B.I. Vs. Prem Raj Bhatnagar), whereby the Special Judge convicted appellant for the offences under Sections 409, 467, 472 I.P.C. and Section 13(1)(c) read with Section 13(2) of Prevention of Corruption Act, 1988 and sentenced him with rigorous imprisonment for a period of 5 years and fine of Rs.5,000/- under Section 409 I.P.C., rigorous imprisonment for a period of 5 years and fine of Rs.5,000/- under Section 467 I.P.C., rigorous imprisonment for a period of 3 years and fine of Rs.2,000/- under Section 472 I.P.C. and rigorous imprisonment for a period of 4 years and fine of Rs.3,000/- under Section 13(1)(c) read with Section 13(2) of Prevention of Corruption Act, 1988 and in case of default in payment of aforesaid fine sentenced with imprisonment of additional period of four months, four months, two months and three months respectively.
3. Learned counter for C.B.I. produced copies of reports of Jail Superintendent, District Jail, Ghaziabad dated 4.9.2019 and Jail Superintendent, District Jail, Meerut dated 6.9.2019 which are taken on record.
4. Heard Sri Deepak Kumar Srivastava, learned counsel for appellant in Criminal Appeal No.2129 of 2012, Sri Deepak Kumar Srivastava, Advocate holding brief of Sri U.K. Pandey, learned counsel for accused- appellant in Criminal Appeal No.1088 of 2012, Sri Sanjay Kumar Yadav, Advocate, who is also assisting counsel for C.B.I. holding brief of Sri Gyan Prakash, learned counsel for C.B.I., learned A.G.A. for the State and perused the record.
5. Learned counsel for appellant contends that appellant has been falsely implicated in two cases; that appellant was working as Clerk-cum- Cashier in Punjab Nagar Branch of Prathma Bank; that prosecution utterly failed to prove that appellant committed any offence or misappropriated/embezzled a sum of Rs.97,000/- in Special Case No.64 of 2005 or Rs.9,60,000/- in Special Case No.63 of 2005; that prosecution failed to produce any independent witness; that appellant did not commit any embezzlement of Rs.97,000/- or Rs.9,60,000/- and did not misappropriate any funds; that impugned judgments and orders of conviction are wrong, incorrect and are liable to be set-aside and appellant is liable to be acquitted of all the charges framed against him; that appellant has deposited entire amount of fine imposed under two impugned judgments and he is in custody since 2.8.2011 as he was not granted bail during trial or after filing of appeal; that in any case if the court comes to the conclusion that appellant is not entitled for order of acquittal and also has not undergone complete period of imprisonment under sentence imposed on him, the sentence may kindly be reduced to the period already undergone and he may be released considering his old age.
6. Per contra, learned A.G.A. and learned counsel for C.B.I. supported the impugned judgments and orders and contended that it was fully proved from the evidence on record that appellant making misuse of his office misappropriated huge amount and committed embezzlement of Rs.97,000/- in Special Case No.63 of 2005 and Rs.9,60,000/- in Special Case No.64 of 2005; that appellant has been sentenced with maximum period of imprisonment of 7 years in Special Case No.63 of 2005 and 5 years in Special Case No.64 of 2005 apart from which he has also been sentenced with imprisonment for a period of 3 months in Criminal Appeal No.139 of 2010 under N.I. Act so he has to undergo imprisonment for a total period of 12 years and 3 months and may not be released earlier.
7. Upon hearing parties' counsel and perusal of record, I find that prosecution in support of charges framed against appellant produced as many as five witnesses in Special Case No.64 of 2005 and 14 witnesses in Special Case No.63 of 2005. The learned trial court after analyzing the prosecution evidence in detail have come to the conclusion that amount of Rs.97,000/- and Rs.9,60,000/- were misappropriated/embezzled by appellant. The findings of court below are based on cogent reasoning. Learned counsel for appellant has failed to show any illegality or incorrectness in the findings of conviction recorded by trial court and there is no sufficient ground for setting aside the impugned judgments and orders of conviction and sentence and acquitting the appellant of the charges framed against him.
8. In view of discussions made above, I have come to the conclusion that there is no illegality, irregularity or incorrectness in the impugned judgments and orders of conviction and sentence and there is no sufficient ground for setting aside the conviction or passing the acquittal order. The appeals are devoid of merits and are liable to be dismissed.
9. The appeals are dismissed. The judgments and orders of conviction and sentence are affirmed. The appellant is in custody and will be released forthwith after completion of sentence in two cases.
10. As per impugned judgment and order dated 9.5.2012 passed in Special Case No.63 the appellant has been sentenced for various times of imprisonment upto maximum of 7 years and various amounts of fine total of Rs.90,000/- and similarly in impugned judgment and order dated 25/27.1.2012 he has been sentenced for various terms of imprisonment upto maximum of 5 years and various amounts of fine total of Rs.15,000/-. In both the impugned judgments it has also been ordered by trial court that all the sentences will run concurrently. The report of Jail Superintendent, District Jail, Meerut specifically states that appellant has deposited the total amount of Rs.15,000/- in Special Case No.64 of 2005 and Rs.90,000/- in Special Case No.63 of 2005 so he will not be liable for additional period of imprisonment as per default clause.
11. In view of above mentioned facts and material on record, I find no force in the argument advanced by C.B.I. that appellant will have to undergo separate sentence in each case and term of imprisonment of 5 years in Special Case No.64 of 2005 will start after completion of 7 years term of imprisonment in Special Case No.63 of 2005. As per impugned judgment and also as per rule of law all sentences have to run concurrently and if a person has been convicted and sentenced in more than one case, it will not be correct to say that period of imprisonment in several cases will be added together. The contention of learned counsel for C.B.I. that appellant will have to undergo total imprisonment of 12 years in 2 cases is wrong and not accepted.
12. From the material on record it is clear that appellant has undergone complete period of sentence of imprisonment of 5 years in Special Case No.64 of 2005 relating to Criminal Appeal No.1088 of 2012 and has deposited entire amount of fine so he will be released forthwith in Criminal Appeal No.1088 of 2012 arising out of Special Case No.64 of 2005.
13. Since it is not very much clear as to whether appellant has undergone complete period of sentence of imprisonment of 7 years or not in Special Case No.63 of 2005 relating to Criminal Appeal No.2129 of 2012, hence it has to be looked into by trial court. Since he has deposited entire amount of fine, he is not liable for any additional period of imprisonment. The trial court shall immediately ascertain total period of detention of appellant in Criminal Appeal No.2129 of 2012 and if it finds that he has undergone complete sentence of 7 years imprisonment, he will be released forthwith. However, if it is found that he has not yet undergone complete period of sentence of 7 years imprisonment, he will be released immediately upon completion of total 7 years period of imprisonment in Criminal Appeal No.2129 of 2012.
14. Let a copy of this judgment be sent with lower court record to court below for taking necessary action as mentioned above.
Order Date :- 18.12.2019 Kpy