Elevation of the Advocate to bench and appointment of Junior Counsel as Amicus Curaie is no ground to remand the case & sentencing needs special consideration of all the underlying circumstances

Harshit Sharma | Amity Law School, Madhya Pradesh | 20th December 2019

Mayank N Shah V/s. State of Gujarat Criminal Appeal No. 2298/2010

FACTS OF THE CASE

1. Accused No.1 was the Branch Manager of Central Bank of India, accused 2 & 3 were the partners of M/s. New Russian Automobiles and appellant/accused No. 4 was the Chief Manager (Operations) of the firm and accused No. 5 was serving as Office Superintendent.
2. Accused No. 2 applied to the Central Bank for availing the loan facility, which was from time to time extended at the instance of accused No. 1 and also to quote here, former has formed 3 fictitious propriety in the Mumbai itself.
3. For seeking the credit facility certain bills which were endorsed with the signatures of accused No. 2 to 5 were provided to the bank, on account of which the credit facility was granted by accused No.1.
4. It was the allegation in the complaint that all the accused persons hatched a conspiracy to cheat the bank and they managed to get fake motor receipts alleged to have been issued by one Bombay General Freight Carriers Pvt. Ltd., Bombay.  
5. Furthermore, As alleged in the complaint, the appellant/accused no.4 and accused no.5 presented to the bank 25 bills for the total amount of Rs.18,57,064.40 during the period from October 1975 to March 1976 and in the said manner, the firm has availed the credit facility from the bank against such bills, by presenting fake transport receipts.  
6. Moreover, on other accounts also various false & fabricated receipts and forged bills were given to the bank, for advancing money.
7. In addition to the same, accused no.1 accepted a wrist watch, Crown T.V. set and enjoyed a trip to Bombay at the expense of accused nos.2 and 3, as such, committed the offence punishable under Section 161 and 165 of the Indian Penal Code, 1860.
8. After completion of the investigation on the complaint, all the accused were charged for the offences punishable under Sections 161, 166, 420, 468 and 471, IPC read with Sections 5(1)(d) and 5(2) of Prevention of Corruption Act, 1947.
9. The learned trial Court and Hon’ble High Court affirming the allegations, convicted all the accused for the above charged offences. The Accused No. 4 challenged the High Court’s judgment by preferring the present SLP.

ISSUES RAISED

1. Whether the elevation to the judge of High Court of the advocate who presented the appeal is a ground to remand the case back to the High Court?
2. Whether the appellant is responsible for such elevation, as no correspondence could be reached to him and thus, could not get adequate opportunity of being heard?
3. Whether the appointment of junior counsel from CBI as Amicus Curaie is a ground to remand the case back?
4. What shall be the criterion for sentencing the convicted person and what circumstances be seen in establishing guidelines for sentencing?

RULING OF THE COURT/ THE COURT HELD THAT

The Hon’ble Supreme Court of India, upholding the conviction made by the learned Trial Court and High Court, observed the following:

1. When the advocate on record who filed the appeal was elevated to the Bench, it was for the appellant to make his own arrangement for appointing another advocate in the place of earlier advocate on record.  Appellant did not take any steps in this regard. Even notice sent to the appellant was not received by him for want of correct address.  As such there was no option except to proceed for disposal of the appeal filed by the appellant, by appointing amicus curiae.  On the mere allegation of the appellant that the amicus curiae appointed was earlier junior counsel of C.B.I. advocate, is no ground to interfere with the impugned judgment.
2. In the light of the case of State of Madhya Pradesh v. Udham Singh & Ors, the court gave benefit in sentence of imprisonment to the appellant/accused as it is an undisputed fact that appellant was working in the firm to which other co-accused were partners and he was relatively lower in hierarchy & only a salaried employee. On account of which he was to be bound by the decision of the co-accused and has not that much to do with the present case, in terms if monetary benefit and THUS, the sentence in respect of all the offences for which he was convicted was reduced to half and shall run concurrently.