2009 ALL MR (Cri) 164
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
B.R. GAVAI, J.
S. Manik Reddy S/O. S. Sanganna Reddy Vs. State Of Maharashtra
Criminal Application No.1941 of 2008,Criminal Appeal No.718 of 2005
1st July, 2008
Petitioner Counsel: Mr. JOYDEEP CHATTERJI
Respondent Counsel: Mr. BORADE
Criminal P.C. (1973), Ss.374, 482 - Suspension of conviction - Conviction for demanding bribe - Conviction based on testimony of a witness who was declared hostile - Applicant having triable case on merits and was already superannuated - If conviction were not suspended he would be deprived of provisional pension - Application for suspension ought to be allowed in exercise of discretionary power in such a case. Prevention of Corruption Act (1988), Ss.7, 13(1)(d), (2). (Paras 5, 6)
State of Punjab Vs. Deepak Mattu, 2007 ALL SCR 2705 : AIR 2008 SC 35 [Para 3]
2. The appellant accused has been convicted for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to suffer R.I. for 3 years and to pay a fine of Rs.1,000/- and under Section 13(1)(d) r/w. Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to suffer R.I. for one year and to pay a fine of Rs.500/-.
3. Shri. Borade, learned APP vehemently opposed the application. He submits that unless an exceptional case is made out, order of conviction cannot be suspended and therefore prays for rejection of the application. In support of his submissions, learned APP relies on the judgment of the Apex Court in case of "State of Punjab Vs. Deepak Mattu" reported in AIR 2008 SC 35 : [2007 ALL SCR 2705].
4. From the perusal of the evidence, it would reveal that the complainant, prosecution witness No.1 Sayyad Jamil was working as a Contractor. Trap was led at the instance PW-1. The allegation is that issuance of tender, the accused had demanded an amount of Rs.10,000/-. However, on perusal of the evidence, it is revealed that he has stated that the accused had demanded the amount of Rs.10,000/- for repayment of loan advanced by the accused to the complainant. He has further stated in his evidence that there was a monetary transaction between the complainant and the accused. The said witness has been declared hostile.
5. It can thus be seen that the base for conviction is the testimony of the witness who is a hostile witness. As such, I find that the present applicant has a triable case on merits. The applicant is already superannuated. If the conviction is not suspended, the applicant will be deprived of the provisional pension. Taking into consideration this aspect of the matter, I am inclined to allow the application.
6. In so far as the judgment on which reliance is placed by the learned APP, no doubt, that this court should be slow in suspending the conviction; however, there cannot be a complete bar on the discretion of this court and if an exceptional case is made out, this court would not be powerless in suspending the conviction.