Partly allowed

Bramha Prakash Tiwari v. State of U.P. Thru. Central Bureau of Investigation /Anti Co.

Allahabad HC13 Dec 2022/3/2016

Case brief

AI extract

What is this about?

Sampada High Court considered appeal against conviction and sentence in corruption case involving cheque fraud. Court upheld conviction but reduced sentence to time already undergone citing youth and delay, following Supreme Court guidance.

What did the court decide?

conviction upheld, sentence modified to time served, remitted to lower court for fine compliance

Bramha Prakash Tiwari Vs State of U.P. Thru. Central Bureau of… — Corruption | Allahabad HC (2022)

¶1

[ 1 ]

¶2

Court No. - 10

¶3

Case :- CRIMINAL APPEAL No. - 3 of 2016 Appellant :- Bramha Prakash Tiwari Respondent :- State Of U.P. Thru. Central Bureau Of Investigation /Anti Co Counsel for Appellant :- Rajesh Bahadur Singh Rath Counsel for Respondent :- Bireshwar Nath,Shiv P. Shukla

¶4

Hon'ble Dinesh Kumar Singh,J.

¶5

Heard Mr. R.B.S. Rathaur, learned counsel for the accusedappellant, as well as Mr. Shiv P. Shukla, learned counsel for the respondent - CBI /ACB, and gone through the record.

¶6

The present criminal appeal under Section 374 (2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code") read with Section 27 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "PC Act") has been instituted by the accusedappellant against the judgment and order dated 11.12.2015 passed by the learned Special Judge, CBI, Court No. 1/Additional District Judge, Lucknow in Criminal Case No.1800004 of 2006, arising out of RC No.12(A)/05, under Sections 120-B, 420, 467 and 468 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC") read with Sections 13(2)/13(1)(d) of the PC Act lodged at Police Station CBI/ACB, Lucknow, convicting and sentencing him as follows:-

¶7

i. Under Section 420 IPC, 05 years rigorous imprisonment and fine of Rs.25,000/- and in case of non-deposition of the fine amount, six months additional imprisonment;

¶8

ii. Under Section 467 IPC, 10 years rigorous imprisonment and fine of Rs. 2 Lac and in case of non-deposition of the fine amount, one and a half years additional imprisonment;

¶9

iii. Under Section 468 IPC, 05 years rigorous imprisonment and fine of Rs.50,000/- and in case of non-deposition of the fine amount, one year's additional imprisonment; and

¶10

iv. Under Sections 120-B IPC, 05 years rigorous imprisonment and fine of Rs.10,000/- and in case of non-deposition of the fine amount, three months additional imprisonment.

¶11

It has also been directed that all the sentences would run concurrently except for the fine.

¶12

[ 2 ]

¶13

On behalf of the accused-appellant, learned counsel submits that at the time of commission of alleged offence, the accused-applicant was 20-21 years young chap. Allegation against the accused-appellant is that in the bank account opened in the fake name, photograph of the accused-applicant was found. So far as conviction of the accusedappellant is concerned, the learned counsel for the accused-appellant does not press this appeal on merit and submits that the appeal, against the conviction, may be dismissed. The learned counsel further submits that considering the fact that the accused-appellant has already undergone one year and seven months prison, this Court may reduce the sentence to the sentence already undergone.

¶14

The learned counsel for the accused-appellant has placed reliance upon the judgment of the Supreme Court reported in (2014) 3 SCC 485 (V. K. Verma Vs. Central Bureau of Investigation) to submit that the appellate Court may even reduce the sentence from the minimum sentence prescribed under the statute, considering the peculiar facts & circumstances of the case such as age of the accused, sickness etc. The learned counsel for the accused-appellant has also placed reliance upon the judgment of this Court dated 06.12.2022 rendered in Criminal Appeal No.171 of 2016 (Munni Lal Singh alias M.L. Singh Vs. State of U.P.) in support of his contention that the appellate Court may reduce the sentence even from the minimum of the sentence prescribed, considering the peculiar facts & circumstance.

¶15

On behalf of the respondent - CBI, learned counsel Mr. Shiv P. Shukla submits that he does not have any objection for dismissing the appeal, so far as the conviction is concerned, however, he has objection with respect to reducing the sentence to the sentence already undergone. It is further submitted that the judgment of the Supreme Court in the Case of V. K. Verma Vs. Central Bureau of Investigation (supra) would not be applicable in the facts of the present case. It is further submitted that accused-appellant, in active conspiracy with the

¶16

[ 3 ]

¶17

co-accused, had cheated the Bank of Rs. 8,02,864/- in the year 20032004.

¶18

I have considered the submissions advanced by the learned counsel for the parties.

¶19

The trial Court has considered the evidence in much detail to come to the conclusion that it was the accused-appellant, who was instrumental in committing fraud, however, Mr. Shiv P. Shukla, learned counsel for the respondent - CBI, does not dispute that the accused-appellant was a young chap of 20-21 years of age at the time of commission of the alleged offence.

¶20

In respect of the other offence, under Sections 467, 468, 420 and 120-B IPC for which the accused-appellant has been convicted and sentenced, there is no minimum sentence, but maximum sentence under Sections 467, 468, 420 and 120-B is imprisonment for life, imprisonment for 7 years, imprisonment for 7 years and imprisonment for life/death respectively, has been provided. The Supreme Court in the Case of V. K. Verma Vs. Central Bureau of Investigation (supra) has held that the appellate Court, considering the peculiar facts of the case such as age and sickness etc may reduce the sentence from the minimum of the sentence as prescribed under the statute. The Supreme Court in the Case of V. K. Verma Vs. Central Bureau of Investigation (supra) in paragraphs 8 to 12 has held as under:-

¶21

"8. The long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence. As we have noted above, the FIR was registered by CBI in 1984. The matter came before the Sessions Court only in 1994. The Sessions Court took almost ten years to conclude the trial and pronounce the judgment. Before the High Court, it took another ten years. Thus, it is a litigation of almost three decades in a simple trap case and that too involving a petty amount.

¶22

9. In Ashok Kumar v. State (Delhi Admn.) [(1980) 2 SCC 282 : 1980 SCC (Cri) 426] , the commission of offence of theft was committed in 1971 and the judgment of this Court was

¶23

[ 4 ]

¶24

delivered in 1980. The conviction was under Section 411 IPC. This Court having regard to the purpose of punishment and "the long protracted litigation", reduced the sentence to the period already undergone by the convict.

¶25

10. In Sharvan Kumar v.State of U.P.[(1985) 3 SCC 658 : 1985 SCC (Cri) 437] , the commission of offence was in 1968 and the judgment was delivered in 1985. The conviction was under Sections 467 and 471 IPC. In that case also, the long delay in the litigation process was one of the factors taken into consideration by this Court in reducing the sentence to the period already undergone.

¶26

11. In Ajab v. State of Maharashtra [1989 Supp (1) SCC 601 : 1989 SCC (Cri) 602] also, this Court had an occasion to examine the similar situation. The offence was committed in 1972 and this Court delivered the judgment in 1989. The conviction was under Section 224 read with Section 395 IPC. In that case also "passage of time was reckoned as a factor for reducing the sentence to the period already undergone". This Court in that case, while reducing the substantive sentence, increased the fine holding that the same would meet the ends of justice.

¶27

12. The appellant is now aged 76. We are informed that he is otherwise not keeping in good health, having had also cardiovascular problems. The offence is of the year 1984. It is almost three decades now. The accused has already undergone physical incarceration for three months and mental incarceration for about thirty years. Whether at this age and stage, would it not be economically wasteful, and a liability to the State to keep the appellant in prison, is the question we have to address. Having given thoughtful consideration to all the aspects of the matter, we are of the view that the facts mentioned above would certainly be special reasons for reducing the substantive sentence but enhancing the fine, while maintaining the conviction."

¶28

This Court, relying upon the judgment in the case of V. K. Verma Vs. Central Bureau of Investigation (supra) vide judgment passed in Criminal Appeal No.171 of 2016 (Munni Lal Singh alias M.L. Singh Vs. State of U.P.) (supra) has reduced the sentence of the accusedappellant in the said case to the sentence already undergone and increased the amount of the fine. Paragraphs-7, 8 and 9 of the judgment passed in Criminal Appeal No.171 of 2016 (Munni Lal Singh alias M.L. Singh Vs. State of U.P.), which are relevant, are extracted here under:-

¶29

[ 5 ]

¶30

7. In view of the aforesaid submissions advanced on behalf the learned counsel for the parties and also taking note of the judgement of the Supreme Court in the case of V.K. Verma (supra), so far the appeal in respect of conviction under Sections 409 and 471 IPC and Section 13(2) read with Section 13(1)(c) and (d) of Prevention of Corruption Act is concerned, the appeal is dismissed. However, in respect of sentence, considering the mental and physical disability of the accusedappellant and his advanced stage i.e. he being 73-74 years of age and, also taking into account that the offence was allegedly committed in the year 2004, for which judgement and conviction came to be passed in the year 2016 and now we are in the fag end of 2022, it would be appropriate to reduce the sentence to the period of sentence already undergone by the accused-appellant. However, the fine imposed by the learned trial court is increased to fine of Rs.2,30,000/-.

¶31

8. At this stage, Sri A.P. Mishra, learned counsel for the accused-appellant has tendered a fine deposit slip of Rs.80,000/- dated 19.2.2016 deposited by the accusedappellant as initially the fine was not stayed by this Court vide order dated 11.2.2016.

¶32

9. In view of the aforesaid, accused-appellant is directed to deposit Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) within a period of one month from today. In case the accusedappellant deposits the fine as directed above, the bail bonds shall stand cancelled and the sureties shall stand discharged. In the event, the accused-appellant does not deposit the fine of Rs.1,50,000/- within the period prescribed, he shall undergo the sentence as awarded by the trial court."

¶33

Considering the fact that the offence took place in the year 20032004 and the accused-appellant has already undergone one year seven months prison, this Court is of the view that the interest would meet if the conviction of the accused-appellant is upheld and the sentence is reduced to the sentence already undergone by him .

¶34

Thus, the appeal is allowed partly. Conviction is upheld and the sentence is modified, as mentioned above. Let lower court record be remitted back for necessary further compliance.

¶35

[D. K. SINGH, J.]

¶36

Order Date :- 13.12.2022 MVS/-

¶37

Digitally signed by :- MANOJ VIKRAM SINGH CHAUHAN High Court of Judicature at Allahabad, Lucknow Bench

Bramha Prakash Tiwari v. State of U.P. Thru. Central Bureau of Investigation /Anti Co.

Case brief

What is this about?

What did the court decide?

Bramha Prakash Tiwari v. State of U.P. Thru. Central Bureau of Investigation /Anti Co.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Vyas Shukla Vs State of U.P. Thru Secy. Home Lucknow and Anr.

Saroj Kumar Shukla Vs State of U.P.

Avdheshwar Dayal Khare Vs State of U.P.through C.B.I. A.C.B. Lucknow.

Faiz Khan @ Ziaul Vs State of U.P.

Anil Kumar Mishra Vs State of U.P. Thru Prin.Secy. Home

Dhaniram Alias Jitendra Singh Vs State of U.P Thru. Prin. Secy. Depart . of Home and Others