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MAYANK N SHAH   v.   STATE OF GUJARAT & ANR, CRIMINAL APPEAL NO.2298 OF 2010- December 18, 2019

A complaint was filed by the Divisional manager, Central Bank of India, Ahmedabad with the SP, CBI Ahmedabad against the appellant-accused-4 and 4 others. The original accused that is accused-2 applied the Central Bank for availing certain loan facilities for their firm M/S. New Russian Automobiles. All the accused persons hatched conspiracy to cheat the bank and got fake motor receipts. On evaluation of the evidence by the prosecution, the learned Special Judge held the appellant guilty and imposed the sentence for various offences. The appellant preferred appeal before the HC which by re-appreciating the evidence dismissed the appeal. The HC confirmed the judgment and order of sentence imposed on the appellant by the learned Special Judge.

The counsel appearing on behalf of the appellant contended that the appeal was decided by the HC without giving opportunity to the appellant to present his case. During the pendency of the appeal, the advocate who has presented the appeal on behalf of the appellant was elevated as the judge of the HC and notice issued by the HC was not received by the appellant. Also conviction of the appellant was solely based on circumstantial evidence and the appellant was a salaried employee of the firm. He has no benefit in that matter and he has submitted all the bills and invoices as per instructions of accused-2. The appellant-accused prepared the invoices and bills during his routine work on the basis of information received from the factory and submitted to the bank. The HC and the Trial Court convicted the appellant for the offence without direct evidence connecting him to the alleged illegalities. The cases Central Bureau of Investigation, Hyderabad v. K. Narayana Rao; K.R. Purushothaman v. State of Kerala; Bharati Telenet Ltd. v. N Subhash Jain & Ors.; A.S. Krishnan & Ors. V. State of Kerala were referred supporting their argument.

The counsel for the respondent argued that the appellant has drawn almost all O.B.D & B.P bills on behalf of the firm. The documentary evidence shows clearly that the appellant knows well that the bank was being deceived. The appellant has signed all the bills including the forged receipts. Also he had attested all the 11 photocopies.

The court after hearing the arguments of the counsels of both the sides and analyzing the judgments of the trial court and HC the court made the following observations. When the advocate who filed the appeal was elevated to the bench, it was the responsibility of the appellant to make arrangements for appointment of another advocate but he did not take any step in that behalf. Even the notice sent was not received. Here there is no other option except appointing Amicus Curiae. The court viewed that the case of the prosecution were in conformity with the oral and documentary evidence. The appellant submitted the invoices on behalf of the firm to the bank knowing very well that they were fabricated. The prosecution has proved the guilt of the appellant beyond reasonable doubt. The court rejected the cases referred by the counsel for the appellant stating that the judgments were not helpful in support of the case of the appellant.

The court has decided to confirm the conviction of the appellant-accused with a modified sentence. Also State of Madhya Pradesh v. Udham and Others was referred by this court for laying down the guidelines for sentencing. Also his bail bonds are cancelled.





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