Partly allowed

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

Allahabad HC12 Dec 2022CRLA/891/2003

Case brief

AI extract

What is this about?

Criminal Appeal filed against conviction and sentence under various IPC, Indian Telegraph Act, and Prevention of Corruption Act provisions. The appellate court upheld the conviction due to the appellant's request not to argue on merit but ordered reduction of the sentence to the period already undergone owing to the appellant's age, health condition, and long litigation delay, while enhancing the

What did the court decide?

Conviction upheld; sentence reduced to period already undergone; fine enhanced to Rs.2,50,000.

Avdheshwar Dayal Khare Vs State of U.P.through C.B.I. A.C.B… — Corruption | Allahabad HC (2022)

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Court No. - 10

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Case :- CRIMINAL APPEAL No. - 891 of 2003

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Appellant :- Avdheshwar Dayal Khare Respondent :- State Of U.P.Through C.B.I. A.C.B. Lucknow. Counsel for Appellant :- P.Chakravarty,Rajesh Kumar Srivastava,Ripu Daman Shahi,V.K. Shahi Counsel for Respondent :- Bireshwar Nath,S.B.Pandey,Shiv P Shukla

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Hon'ble Dinesh Kumar Singh,J.

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The present criminal appeal under Section 374 (2) Cr.P.C. has been filed against the judgment and order of conviction and sentence dated 22.5.2003 passed by the learned Special Judge, Anti Corruption, CBI (Central), Lucknow in Criminal Case No.26 of 1996, arising out of RC No.18(A)/94, whereby the learned trial court has convicted the accused-appellant under Section 120-B IPC and sentenced for three years rigorous imprisonment; under Section 420 IPC for four years rigorous imprisonment with fine of Rs.50,000/- and in case of default of payment of fine, further to undergo six months additional rigorous imprisonment; under Section 468 IPC for three years rigorous imprisonment with a fine of Rs.50,000/- and in case of default of payment of fine, further to undergo six months additional rigorous imprisonment; under Section 471 IPC for three years rigorous imprisonment, under Section 20 of Indian Telegraph Act for one year rigorous imprisonment under Section 25 of the Indian Telegraph Act for one year rigorous imprisonment and under Section 13(2) read with 13(1)(d) of Prevention of Corruption Act for two years rigorous imprisonment with a fine of Rs.20,000/- and in case of default of payment of fine, further to undergo six months additional rigorous imprisonment. All the sentences were directed to be run concurrently except for the fine.

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The prosecution case, in brief as emerges from the FIR and the charge sheet, is that a Preliminary Enquiry No.69(a)/93-Lko was registered on 30.5.1994 on source information against Sri Virendra Kumar Agarwal and some officers of the Telecom Department, Lucknow. It is alleged that Virendra Kumar Agarwal and S.K. Shukla, the then Telephone Inspector under J.T.O. (South), office of Assistant Engineer (External), South, Telephone Exchange, Kaiserbagh, Lucknow and A.D. Khare, the then Telephone Operator-cum-Clerk in the office of the

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Assistant Engineer Phones (External), South Kaiserbagh, Lucknow entered into criminal conspiracy during the period 1990-1993 to commit offence of cheating, forgery and in furtherance of common intention of all the accused persons, the present appellant filled in telephone connection application form No.19912 in his own hand writing purportedly mentioning Ashok Kumar Garg, S/o Murli Lal Garg, R/o Marwari Gali, Aminabad, Lucknow in connivance with accused Virendra Kumar Agarwal and the said application form was signed by accused Virendra Kumar Agarwal impersonating and showing himself as Ashok Kumar Garg. The said address on the application form was later on got changed at the behest of accused Virendra Kumar Agarwal in connivance with the present accused-appellant and other co-accused and address was shown as 70, Marwari Gali, Aminabad, Lucknow.

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It has come during the course of investigation that Mr. Ashok Kumar Garg had never applied for any telephone connection on application form No.19612 or for change of address. The accused-appellant also filled up and issued the demand note pertaining to the telephone connection to be installed on the said application form although it was not his duty to fill in any subscriber’s application form or issue demand note. The accused-appellant filled up the form by himself and issued demand note in connivance with the other accused persons. Coaccused, S.K. Shukla himself filled up the jumpering slip vide O.B. No.24 dated 9.6.1992 pertaining to telephone connection No.238547 standing in the name of Ashok Kumar Garg and his fake address was mentioned as 70, Marwari Gali, Aminabad, Lucknow. Thereafter, telephone connection No.238547 was installed at the premises of Harshit Enterprises, 133/270, First Floor, Bhagwan Market, Aminabad, Lucknow, which was the business premises of co-accused Virendra Kumar Agarwal.

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Another telephone No.238251 was got diverted to Telephone No.241204, which was the telephone of the Chief Secretary, Government of Utar Pradesh. It is said that in active connivance of conspiracy with S.K. Shukla and the present accusedappellant by playing tricks with M.D.F., Kaiserbagh Telephone Exchange, Lucknow, a number of ISD and overseas calls to Soudi Arabia and other gulf countries were made from the telephone No.241204 member late hours resulting into loss of Rs.2,50,883/- by way of cheating, forgery and corresponding gains to themselves or others.

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On receiving the exorbitant bill dated 1.11.1993 of the Telephone No.241204 of the Chief Secretary, Government of Uttar Pradesh, which was installed at Sachivalay Annexe, Lucknow, calls were checked and it was found that co-accused Virendra Kumar Agarwal used locally made apparatus to divert the calls. The said apparatus was seized by the officers of the Telephone Department. The cost of the authorized calls was to the tune of Rs.1,53,000/-, which was made within fortnight. This is a preliminary gain to co-accused Virendra Kumar Agawal and corresponding loss to the revenue. This preliminary inquiry was converted into regular case, which was registered by the CBI as RC Number as mentioned above. The criminal conspiracy was hatched between Virendra Kumar Agarwal and S.K. Shukla, the then Telephone Inspector to cheat the Telephone Department by adopting this modus operandi.

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The CBI after conducting thorough investigation, filed the charge sheet against the accused-appellant, who was T.O.C. under Kaiserbagh Telephone Exchange (South) and S.K. Shukla, the then Telephone Inspector in S.T.O., Kaiserbagh, Telephone Exchange, Lucknow on finding that they had conspired and connived with co-accused Virendra Kumar Agarwal for committing the offence of cheating, forgery in

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getting installed Telephone No.238547 in the name of Ashok Kumar Garg with fictitious address 70, Marwari Gali, Aminabad, Lucknow and got installed at Harshit Enterprises, 133/270, First Floor, Bhagwan Market, Aminabad, Lucknow and for diversion of Chief Secretary’s Telephone No.241204 by playing tricks in Main Distribution Frame (MDF) and D.P.

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After obtaining the prosecution sanction against the accused S.K. Shukla and the present accused-appellant, charge sheet was filed in the court. Cognizance was taken and accused persons were summoned. The accused persons challenged the sanction order. However, the learned trial court held that the prosecution sanction orders were issued by the concerned sanctioning authority, who was competent to remove the concerned accused persons public servant from office/post and after proper application of mind, the sanction was accorded vide order dated 26.8.1998. Charge was framed on 17.3.1998 under Sections 120-B, 420, 468 and 471 IPC, Sections 20 and 25 of Indian Telegraph Act and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act.

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The accused-appellant denied the charge and claimed for trial. The prosecution to prove its case examined as many as 35 witnesses besides leading other documentary evidence. The prosecution to prove its case, examined Sri A.K. Mishra, Divisional Engineer (Telephones), P.W.-1 and Sri A.K. Tandon, Director, Telecom Project, Lucknow. Sri A.K. Tandon proved the prosecution sanction against the present accused-appellant, who was working as Telephone Operator-cum-Clerk and S.K. Shukla, the then Telephone Inspector. Learned trial court after analyzing the evidence in detail found the charge proved against the accused-appellant and convicted and sentenced him accordingly as mentioned above.

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Sri V.K. Shahi, learned counsel for the accused-appellant submits that he does not want to argue the appeal on merit and the conviction may be upheld. However, looking at the age of the accused-appellant, who is 62 years of age, his medical condition as he is suffering from various ailments and he requires regular medial check up, weak, infirm and hardly in a position to walk and in view of the judgement of the Supreme Court in the case of V.K. Verma Vs. Central Bureau of Investigation, (2014) 3 SCC 485, this Court may reduce the sentence to the period already undergone by the accusedappellant and enhance the fine as this Court may deem fit and proper in the facts and circumstances of the case.

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Sri Shiv P. Shukla, learned counsel for the CBI has no objection for dismissing the appeal so far the convection is concerned, but so far the reducing the sentence to less than the minimum period prescribed, he submits that the judgment of the Supreme Court in the case of V.K. Verma (supra) is not applicable in each case. However, he is not in a position to deny the fact that the accused-appellant is 62 years of age and he is suffering from various ailments.

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I have considered the submissions advanced by the learned counsel for the parties and perused the lower court record.

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The Supreme Court in the case of V.K. Verma (supra) has held that even the minimum sentence can be reduced by the appellate court after considering the facts, such as age, long pendency of the criminal case in the court, illness and infirmity of the accused-appellant etc. In paragraphs 8 to 13 of the aforesaid judgement, the Supreme Court held as under:-

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"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.

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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.

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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 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.

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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.

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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.

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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.

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13. Accordingly, the appeal is partly allowed. The substantive sentence of imprisonment is reduced to the period already undergone. However, an amount of Rs 50,000 is imposed as fine. The appellant shall deposit the fine within three months and, if not, he shall undergo imprisonment for a period of six months. On payment of fine, his bail bond will stand cancelled."

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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 120-B, 420, 468 and 471 IPC, Sections 20 and 25 of Indian Telegraph Act and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act is concerned, the appeal is

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dismissed. However, in respect of sentence, considering the mental and physical disability of the accused-appellant and his advanced stage i.e. he being 62 years of age, it would be appropriate to reduce the sentence to the period of sentence already undergone by the accused-appellant, which is two and a half months. However, the fine imposed by the learned trial court is increased to fine of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand) to be deposited by the accused-appellant in the account of Indian Posts and Telegraphs within a period of four weeks from today. In case the accused-appellant deposits the fine as directed above, the bail bonds shall stand cancelled and the sureties shall stand discharged. In the event, the accusedappellant does not deposit the fine of Rs.2,50,000/- within the period prescribed, he shall undergo the sentence as awarded by the trial court.

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Subject to above noted terms, the appeal is partly allowed.

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Let lower court record be sent back to the concerned trial court forthwith.

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Order Date :- 12.12.2022 Rao/-

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Digitally signed by CHEBROLU SRINIVASA RAO Date: 2022.12.19 19:30:51 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

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

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

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