Partly allowed

Kriparam Bhardwaj v. State

Chhattisgarh HC19 Jan 2023CRA/2033/1999

Case brief

AI extract

What is this about?

Appellant appealed against conviction and sentence for misappropriation and corruption. High Court upheld conviction finding it legal and justified. Considering proportional sentencing principles and appellant's advanced age alongside mitigating factors like time served, court reduced imprisonment term to period already undergone while maintaining fine quantum but reducing default imprisonment.

What did the court decide?

Sentence reduced to period already undergone (3 years, 9 months, 11 days) for offences u/s 13(1)(C), 13(2) P.C. Act, 409, 420 IPC; default sentence for fine reduced by 3 months.

Kriparam Bhardwaj Vs State — Corruption | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Cr.A. No. 2033 of 1999

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Kriparam Bhardwaj, aged about 41 Years,S/o. Late Buddhuram Bhardwaj, Occu:Ex-Typist, State Bank of India, Branch:Kanker, District: Kanker (M.P.) r/o. Village :Surdanagar, P.S. Keshkal, District:Bastar (M.P.) now Chhattisgarh.

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---- Appellant

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Versus

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State of M.P. Through C.B.I., Jabalpur (M.P.).

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---- Respondent

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For Appellant : Shri Bhaskar Pyashi, Advocate For State : Ms. Ishwari Ghritlahre, P.L. For C.B.I. : Shri Himanshu Pandey, Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas

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Judgment on Board

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19.01.2023

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This appeal is directed against impugned judgment of conviction and order of sentence dated 11.05.1999 passed by the Special Judge(C.B.I), Surguja, Ambikapur (CG) in Special Sessions Trial No.57/1996 whereby and where under, the appellant has been held guilty of commission of offence and sentenced as described below :-

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Conviction	Sentence
U/s 409 of IPC	R.I. for 06 Years & Fine of Rs.25,000/-, in default of payment of fine further undergo R.I. for 01 years.
U/s 420 of IPC	R.I. for 04 Years & Fine of Rs.20,000/-, in default of payment of fine further undergo R.I. for 01 years.
U/s 468/471 of IPC	R.I. for 03 Years & Fine of Rs.5,000/-, in default of payment of fine further undergo R.I. for 06 Months.
U/s 477A of IPC	R.I. for 03 Years & Fine of Rs.5,000/-, in default of payment of fine further undergo R.I. for 06 Months.
U/s 13(1)(c) R/w Section 13(2)of	R.I. for 04 Years & Fine of Rs.20,000/-, in default of payment of

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Prevention of fine further undergo R.I. for 01 years. Corruption Act, 1988

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All the sentence are directed to run concurrently

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Case of the prosecution in brief is that the appellant while working as ClerkCum-Typist and also performing the work of Sub-Accountant in State Bank of India, Branch - Kanker between March, 1983 to February, 1993 had committed offence of misappropriated amount of Rs.2,57,100/- given by various account holders of the bank for depositing the same in their respective accounts. It is also the case of prosecution that the appellant has given forged passbook wherein forge bank account has been mentioned wherein the amount is alleged to have been credited but the amount has not been deposited in the bank. Further case of the prosecution is that appellant has issued the pass book signed by him to the customers of the bank. Thus the appellant has misappropriated an amount of Rs.2,57,100/- from Account Holder, State Bank of India, Branch-Kanker. The details of bank customers along-with their amount and detail of forge accounts are given in table form as under:-

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S.No.	Account Holder/ Customer Name	Account Number Leger Folio No.	& Date	Amount
1.	Smt. Nirmala	13209 & 32/106	17/02/1990	Rs.900/-
			30/031993	Rs.800/-
			11/04/1990	Rs.300/-
			17/07/1990	Rs.1500/-
			10/08/1990	Rs.1500/-
2.	Surendra Kumar Gupta	14639	20/05/1992	Rs.26,000/-
3.	Ram Kaushik	314 & 1/15	27/08/1992	Rs.1000/-
			28/08/1992	Rs.2500/-
4.	Pachkaud Rambaghel	7749 & 54/62	12/10/1992	Rs.3000/-
5.	Sukhantin Bai	14631 & 36/43	01/09/1992	Rs.5000/-
6.	Moolchand Motwani	4743 & 44/158	16/04/1992	Rs.5000/-
7.	V.B. Das	2310 & 20/302	12/04/1989	Rs.12000/-

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			27/05/1989	Rs.12000/-
8.	Balraj Lalwani	Cheque No.478632	-	Rs.6000/-
		Cheque No.478635	28/11/1991	Rs.10000/-
9.	Sheikh Manjoor	10320 & 02/54	10/04/1990	Rs. 2500/-
10.	Nammu Ram	TDR	23/03/1988	Rs.15,000/-
				Rs.500/-

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FIR was lodged by the Bank and after usual investigation by the C.B.I. challan was submitted before the Special Judge, Jabalpur (M.P.) for commission of offence u/Ss. 409,420,468,471, 477(A) of I.P.C. and Sections 13(1) (C) and 13 (2) of Prevention of Corruption Act, 1988 as appellant being Public Servant under the Act of 1988. Since appellant was charged for commission of criminal offence of cheating and misappropriation of fund and for commission of offence under the Prevention of Corruption Act, 1988 the bank has terminated services of the appellant.

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In order to prove the guilt of the accused, the prosecution has examined as many as 12 witnesses namely Kanhaiyya Lal Shravan (PW/1), Surendra Kumar Gupta (PW/2), Bishau Ram Kaushik (PW/3), Pachkaudram Baghel (PW/4), Nammu Ram (PW/5), T.R. Soni (PW/6), Sheikh Manjoor (PW/7), Balraj Lalwani (PW/8), V.B. Das (PW/9), Moolchand Motwani (PW/10), Dheerendra Kumar (PW/11) and H.S. Saxena (PW/12). During investigation samples of appellant signature and handwriting were taken, which were sent to the handwriting expert for opinion. The signatures of the appellant which were sent for opinion of the handwriting expert were exhibited as Ex.P-43-I to Ex.P/43-57 and handwritings of the appellant were exhibited as Ex.P/46 – 1 to Ex. 46-38. The customers signatures were also sent for opinion to the handwriting expert which were also exhibited during the trial. The opinion of the handwriting expert was exhibited as Ex.P/55. The appellant pleaded no guilty and prayed for examining the defence witness and in his defence the appellant has examined Prakash Chand Dave Assistant Cashier / teller and N.S. Agrawal, Dy. Manager of the S.B.I, Kanker.

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The learned trial court after appreciating the evidence and material on record and considering the statement of the Account Holders who have been examined before the trial court, wherein they have categorically stated that they

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have given the amount to the appellant but the same has not been deposited in the bank. The prosecution has examined T.R. Soni ( PW/6) who has stated before the trial court that he has worked with the appellant while posted as Senior Cashier/Teller as such he is well acquainted with the handwriting and signature of the appellant. The learned trial court relying upon the opinion of the handwriting expert, which was corroborated by evidence of PW/6 and customers of the bank who were examined before the trial court, has held that appellant has committed the offence for which he was charged and accordingly awarded the sentence as detailed above.

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It has been informed by the jail superintendent vide its memo dated 05/01/2023 that though High Court of M.P. has granted bail to the appellant on 29/09/1999 but he could not comply with the condition of bail, therefore, appellant remained in jail from the date of judgment i.e. 11/05/1999 to 20/02/2023, thus appellant remained in jail for 03 years, 09 months and 11 days.

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Learned counsel for the appellant would submit that he is not arguing the appeal on the merit but only considering that there are mitigating factors which can be considered by this court for reducing the sentence to the extent of already undergone as appellant has already undergone imprisonment for 03 years 09 months and 11 days. Learned counsel for the appellant would further submit that the appellant was dismissed from service as soon he was charged for committing the offence and all the retrial dues have already been confiscated on account of conviction of appellant by criminal court. Since 1993 appellant is attending criminal trial without any failure, now age of the appellant is 65 years and even he has remained in jail for 03 years 09 months and 11 days. As such mitigating factor for reducing the sentence already undergone is available on record which may be considered by this court. Learned counsel for the appellant would further submit that the appellant has suffered mental agony and torture and even it is difficult to the appellant to maintain livelihood, therefore he would further submit that sentence awarded to the appellant be reduced to the sentence already undergone.

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8. On the other hand learned counsel for the C.B.I. opposing the submission would submit that the charges levelled against the appellant have been found proved beyond reasonable doubt. All the witnesses whose amount has not been deposited and misappropriated by the present appellant have been

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examined before the trial court and they have proved the case of prosecution beyond reasonable doubt. He would further submit that the bank is a custodian of a customers who have faith in the bank. By the act of the appellant the reputation and confidence of the customer on the bank has been adversely effected. Therefore, he would submit that no leniency should be carried out and the appeal filed by the appellant may be dismissed.

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9. I have heard learned counsel for the parties and perused the record of the Court below.

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10. Considering the evidence, material placed on record it is quite vivid that finding of the learned trial court with regard to conviction of the appellant for the offence charged is neither perverse nor contrary to the material on record which warrant interference by this court exercising power of appellate court as provided U/s. 386 of Cr.P.C.. Therefore, the appeal so far as conviction of the appellant for offence as detailed above is legal, justified does not warrant any interference by this court. Now the issue to be examine by this court is whether in a given facts and circumstances of the case mitigating factors are available on record or not for reducing the sentence.

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11. The issue of proportional sentence by applying the doctorine of propotionality has comeup for consideration before the Hon,ble Supreme Court

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in case of Shyam Narayan Vs. State of NCT of Delhi reported in 2013 (7)

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SCC 77 wherein the Hon’ble Supreme Court held in para as under :-

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16. In Shailesh Jasvantbhai and another v. State of Gujarat and others[2], the Court has observed thus: “Friedman in his Law in Changing Society stated that: “State of criminal law continues to be - as it should be -a decisive reflection of social consciousness of society.” Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration”.

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In State of M.P. v. Babulal [3], two learned Judges, while delineating about the adequacy of sentence, have expressed thus : -

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“23. Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law. The award of sentence is consequential on and incidental to conviction. The law does not envisage a

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person being convicted for an offence without a sentence being imposed therefore.

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The object of punishment has been succinctly stated in Halsbury’s Laws of England, (4th Edition: Vol.II: para 482) thus: “The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided”. (emphasis supplied)”

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In Gopal Singh v. State of Uttarakhand [4], while dealing with the philosophy of just punishment which is the collective cry of the society, a twoJudge Bench has stated that just punishment would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self- adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors.

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Again the Hon’ble Supreme Court in case of Sumar Singh Vs. Suraj Bhaan Singh reported in 2014 (7) SCC 323, para - 36 as under:-

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36. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the Court’s accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and Sumer Singh vs Surajbhan Singh & Ors on 22 April, 2014 Indian Kanoon - http://indiankanoon.org/doc/85389729/ 11 not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental

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grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying “the law can hunt one’s past” cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best subserved if the respondent is sentenced to undergo rigorous imprisonment of two years apart from the fine that has been imposed by the learned trial judge

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15. Now reverting back to the facts of the case and the law laid down by the Hon’ble Supreme Court with regard to proportionality of sentence the appellant has been convicted for commission of offence u/S. 13(1)(C) & 13 (2) of P.C. Act,1988 and Section 420 of I.P.C. appellant has been sentence for commission of these offence is 04 years and appellant has already served sentenced for 03 years, 09 months and 11 days, thus he has been remained in jail for more than minimum sentence which can be awarded to him as for commission of offence u/S. 13(1) (C) & 13(2) i.e. 01 year whereas for commission of offence u/S. 420 of I.P.C. imprisonment of either description for a term which may be extended to 07 years. Considering that no minimum sentence has been provided under the statute, and also considering the age of the appellant, I am inclined to reduce the sentence to the period already undergone by him. So far as offence u/s. 468/471 and 477(A) he has been awarded 03 years sentence whereas he has been remained in jail is concerned for more than period of sentence i.e. 03 years 09 months and 11 days, thus no interference is required. The sentence awarded to the appellant for commission of offence u/S. 409 of I.P.C. is 06 years. From the bare perusal of Section 409 of the I.P.C. it is evident that no minimum sentence has been prescribed as this section provides imprisonment of either description for a term which may be extended to 10 years. Considering the mitigating factors which have already been detailed above, I am inclined to reduce the sentence to the period already undergone by the appellant i.e. 03 years, 09 months and 11 days in place of 06 years as sentence awarded by the trial court.

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21. So far as quantum of fine is concerned it appears to be adequate and it is not required to be disturbed. However, the default sentence in lieu of fine is

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reduced to some extent to serve the end of justice by reducing 03 months for all the offences is directed. Accordingly, it is directed that appellant shall deposit the fine amount as awarded by the trial court within 04 months from the date of receipt of certified copy of the order before the C.B.I. Court, Raipur as the jurisdiction after reorganization of the State is vested with the Special Judge, C.B.I. Court, Raipur. In case of non-compliance of the direction of depositing the fine amount before the trial court, the appellant shall undergone to serve out the remaining sentence as awarded to him by the learned trial court in its judgment dated 11/05/1999.

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21. With the aforesaid modification, the appeal is allowed in part.

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22. Office is directed to transmit the lower court record along-with copy of this judgment to the learned court below for information and necessary compliance as warranted.

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Sd/-

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(Narendra Kumar Vyas) Judge

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Ashish

Kriparam Bhardwaj v. State

Case brief

What is this about?

What did the court decide?

Kriparam Bhardwaj v. State

Case brief

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What did the court decide?

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