Alok Sharma, J. - (1.) MR . S.C. Mittal, appearing for the accused -appellant, submits that the accused -appellant was on bail during trial. He submits that the accused -appellant has now been convicted for an offence under Sec. 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and visited with a sentence of two years rigorous imprisonment in respect thereto. Counsel submits that even though the accused -appellant has also simultaneously been convicted for offences under Secs. 420, 468, 471 IPC and also visited with a sentence of two years rigorous imprisonment in respect of each of the offences, all the sentences are to run concurrently as directed by the trial Court. Counsel submits that the issue in the present case is with regard to alleged complicity of the accused -appellant in facilitating unlawful gain to the purchasers of Railways' rolling stock at an auction. He submits that aside of the allegation as found proved by the trial Court that the action of the accused -appellant caused loss to Railways to an extent of Rs. 2 lakhs, no connection has been established between the accused -appellant and the auction purchasers to find any monetary benefit or other advantage to the accused -appellant. Counsel submits that in a worst case scenario, the omission by the accused -appellant to detail all seventeen items required to be reclaimed from the rolling stock before the auction cannot by itself constitute criminal misconduct. It is submitted that the trial Court has taken a mechanical view of the matter in finding the accused -appellant guilty of criminal misconduct solely on count of the purported loss to the Railways. Mr. T.P. Sharma, appearing for CBI would submit that the accused -appellant having been convicted by the trial Court by a well considered judgment, the initial presumption of innocence in favour of the accused -appellant gets completely whittled down. He submits that the order of the trial Court being a well reasoned and considered order, the accused -appellant has no merits in the appeal and thus ought not to find indulgence at the hands of this Court in the exercise of powers under Sec. 389 Cr.P.C.
(2.) HEARD the counsel for the accused -appellant as also the respondent -CBI. No doubt the trial Court has convicted the accused -appellant, but the fact of the matter remains that the accused -appellant has been convicted with a sentence of two years rigorous imprisonment each in respect of offence under Sec. 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and for offences under Secs. 420, 468, 471 IPC. All sentences are however required to run concurrently. The trial Court has already suspended the sentence of the accused -appellant in terms of Section 389(3) Cr.P.C. which is valid till 23.01.2013. The accused -appellant has availed a statutory appeal against his conviction. The sentence being a fixed term sentence and the appeal likely to take a few years for disposal at its turn, in the event the sentence imposed upon the accused -appellant were not to be suspended, the entire appeal might be rendered redundant. Contrarily, if the appeal were to fail, the accused -appellant could be required to suffer the remainder of the sentence as awarded by the trial Court.
(3.) CONSEQUENTLY , on a balance of the right/interest of the parties before this Court, I would invoke the power under Sec. 389(1) Cr.P.C. and suspend the sentence of the accused -appellant as awarded by the trial Court under its impugned order dt. 24.12.2012 during the pendency of the appeal.;