# S.K. Agarwal v. Centarl Bureau of Investigation Delhi

- **Citation:** (2012) 3 ILRA 1249
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-19
- **Bench:** Ashok Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-k-agarwal-v-centarl-bureau-of-investigation-delhi-42390
- **Pages:** 4

## Headnote

Prevention of Corruption Act-Section 13
(1) (d), 13 (2)-Suspension of sentenceduring
pendency
of
appeal
against
1250 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
conviction-on
ground
applicant
not
committed
any
offense
regarding
pecuniary benefits abusing his postworking as branch manager if conviction
not suspended-shall be ousted from jobcourt explained the contingencies and
guiding factors for exercising power
under Section 389 (1) Cr.P.C.-court
refused to exercise its discretion to
suspend conviction.

Held: Para-13

Keeping in view the above guidelines
this Court has to see whether in the
instant
case
it
should
exercise
its
discretion in favour of the appellant or
not. In the case in hand the appellant
S.K.Agarwal has been found guilty and
convicted under section 13(2) read with
section 13(1) (d) of the Prevention of
Corruption Act, 1988. I have examined
the judgment of the learned lower Court
with caution. Keeping in view the facts
and circumstances of the case I do not
find that this Court should exercise its
discretion in favour of the appellant.
Case Law discussed:
(2008) SCC 549; 2008 (60) ACC 471; 94 AWC
(1) 606; (2007) 9 SCC 330; AIR (2007) SC
1003; 1995 STPL (LE) 20354

## Text

3 All] S.K. Agarwal V. Centarl Bureau of Investigation Delhi
1249
employer and employee which concept
involved an element of subordination and
not that of equality. The partnership
business belongs to the partners and each
one of them is an owner thereof. In common
parlance the status of a partner qua the firm
is thus different from employees working
under the firm. It may be that a partner is
being paid some remuneration for any
special attention which he devotes but that
would not involve any change of status and
bring
him
within
the
definition
of
employee."

16. Sri D.K. Pandey, learned counsel
for the respondents on the other hand
submitted that from the records, it will be
seen that the three partners of the
petitioners' firm had drawn salary, and
therefore, they would fall within the
definition of the term 'employee', as defined
in Section 2(f) of the Act, 1952 and
therefore, there was no illegality or infirmity
in the impugned order dated 25/26.10.1999.

17.

Having
considered
the
submissions of the learned counsel for the
parties with reference to the provisions of
the Act, 952 quoted above and the two
judgments of the Supreme Court referred to
by the learned counsel for the petitioners,
there is absolutely no doubt that even if a
partner or partners of the firm draw some
remuneration from the partnership firm that
would not convert their status from that of
owner to an employee of the partnership
firm. A partner/partners of a partnership
firm is the owner of the firm and there is no
relationship of master and servant or
employer and employee between him and
the partnership firm has held in the
Ramanuja Match Industries (supra).

18. In fact the facts of the case of
Ramanuja Match Industries are identical to
the facts of the present case, inasmuch as
in that case also the magical figure of 20
to bring the partnership firm within the
ambit of the Employees State Insurance
Act, could be arrived at only if the three
partners of the firm were treated as
employees and added to the employees'
strength as observed by the Supreme
Court in para 2 of the Ramanuja
Judgment (supra).

19. In view of the above discussion
and the facts of the present case, and the law
settled by the Supreme Court the impugned
order dated 25.10.1999 is absolutely illegal
and without jurisdiction and is accordingly
quashed.

20. The writ petition is allowed. There
shall be no order as to cost.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.10.2012

BEFORE
THE HON'BLE ASHOK SRIVASTAVA, J.

Criminal Appeal No. - 3871 Of 2012

S.K. Agarwal

 ...Appellant
Versus
Centarl Bureau of Investigation Delhi

 ...Opposite Party

Counsel for the Petitioner:
Sri Rajiv Gupta
Sri Dileep Kumar
Sri Rajrshi Gupta
Sri Shristi Gupta

Counsel for the Respondents:
A.G.A.
Sri Pranay Krishna

Prevention of Corruption Act-Section 13
(1) (d), 13 (2)-Suspension of sentenceduring
pendency
of
appeal
against
1250 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
conviction-on
ground
applicant
not
committed
any
offense
regarding
pecuniary benefits abusing his postworking as branch manager if conviction
not suspended-shall be ousted from jobcourt explained the contingencies and
guiding factors for exercising power
under Section 389 (1) Cr.P.C.-court
refused to exercise its discretion to
suspend conviction.

Held: Para-13

Keeping in view the above guidelines
this Court has to see whether in the
instant
case
it
should
exercise
its
discretion in favour of the appellant or
not. In the case in hand the appellant
S.K.Agarwal has been found guilty and
convicted under section 13(2) read with
section 13(1) (d) of the Prevention of
Corruption Act, 1988. I have examined
the judgment of the learned lower Court
with caution. Keeping in view the facts
and circumstances of the case I do not
find that this Court should exercise its
discretion in favour of the appellant.
Case Law discussed:
(2008) SCC 549; 2008 (60) ACC 471; 94 AWC
(1) 606; (2007) 9 SCC 330; AIR (2007) SC
1003; 1995 STPL (LE) 20354

(Delivered by Hon'ble Ashok Srivastava, J.)

1. The prayer of the appellant
S.K.Agrawal is that pending appeal the
execution of the sentence awarded to him
be suspended. I have heard learned
counsel for the parties on such prayer.

2. It has been submitted from the
side of the appellant that he has been
released on bail in this case by this Court.
It has further been submitted that he has
been falsely implicated in this case and
the judgment of the learned trial Court is
studded with so many discrepancies. It
has further been contended that there is
absolutely no evidence to show that the
appellant, in any manner, has by corrupt
or illegal means obtained for himself or
for any other person any valuable thing or
pecuniary advantage or by abusing his
position as a public servant obtained for
himself or for any other person any
valuable thing or any kind of other
advantage, and thus his conviction under
section
13(1)(d)
of
Prevention
of
Corruption Act read with section 13(2) of
the same Act is illegal. Learned counsel
for the appellant has further argued with
vehemence
that
by
no
stretch
of
imagination it can be said that the
appellant has committed any criminal
misconduct as is held by the learned trial
Court because there is absolutely no
material on record on this point. It has
also been submitted that there is no
evidence which may indicate that the
appellant has cheated the bank. It has also
been submitted that the appellant is
confident that his appeal shall be allowed
as and when it is finally heard and
decided. He is apprehending that his
services may be terminated which may
cause untold hardship and miseries to him
and his family. It has also been submitted
that he is the branch manager of a
nationalized bank and due to the judgment
and order impugned herein he may be
thrown out of service.

3. The prayer is vehemently opposed
by the learned counsel for C.B.I. He
pointed out that the appellant has been
found guilty under sections 420/120-B
IPC and section 13(2) read with 13(1)(d)
of Prevention of Corruption Act, 1988
and sentenced to various terms of
imprisonment with fine. It has also been
submitted that the act of the appellant
involves moral turpitude and therefore,
relief of suspension of sentence can not be
granted to him.
3 All] S.K. Agarwal V. Centarl Bureau of Investigation Delhi
1251

4. In (2008) SCC 549 Central
Bureau of Investigation, New Delhi Vs.
M.N.Sharma and the connected appeal
the Apex Court has laid down certain
guidelines which should be followed
while disposing of the prayer for
suspension of sentence pending appeal by
an appellant. Quoting the cases of the
State of Maharashtra Vs. Gajanan (2003)
12 SCC 432 , K.C.Sareen Vs. C.B.I.
(2001) 6 SCC 584, Union of India Vs.
Atar Singh (2003) 12 SCC 434 and State
of Haryana Vs. Hasmat (2004) 6 SCC 175
the Apex Court has said that the legal
position is that though the power to
suspend an order of conviction, apart
from the order of sentence, is not alien to
Section 389(1) of the Code yet its
exercise should be limited to very
exceptional cases. Merely because the
convicted person files an appeal in
challenge of the the conviction the Court
should not suspend the operation of the
order of conviction. The Apex Court has
further said that it is the duty of the Court
to look at all aspects including the
ramifications of keeping such conviction
in abeyance. Keeping in view this legal
position the Court should examine the
question as to what should be the position
when a public servant is convicted of an
offence
under
the
Prevention
of
Corruption Act, 1988.

5. In 2008 (60) ACC 471
Alld.(Daya Shankar Rai & another Vs.
State of U.P.) a single Judge of this Court
has opined that it is well within the
powers of the appellate Court to invoke
its jurisdiction under section 389 (1)
Cr.P.C. provided its attention is invited to
the consequences that would ensue if
conviction is not stayed. The Hon'ble
Judge is also of the view that conviction
can only be stayed in exceptional
circumstances.

6. Similar opinion has been
expressed by another Bench of this Court
in 94 AWC(1) 606 (Yogendra Kumar &
others Vs. State of U.P.).

7. A copy of the order passed in
Criminal Appeal No.3712 of 2010,
Prabhu Yadav and others Vs. State of
U.P. has been filed. In this case another
Bench of this Court on 11.2.2011 had
stayed the sentence. But this case was not
under the Prevention of Corruption Act as
the appellants were found guilty and
convicted under section 3(1)(10) of
SC/ST Act and they were acquitted of the
offences
punishable
under
sections
323/324/504/506 IPC.

8. In (2007) 9 SCC 330, Lalsai
Kunte Vs. Nirmal Sinha & Others the
Apex Court has said that the appellate
Court has power not only to suspend
execution of sentence but also to stay
order of conviction appealed against. It
has further been said that the stay of order
of conviction results in rendering the
order temporarily non-operative. But this
result does not ensue in case of
suspension of the order under appeal.

9. Infact the law laid down in this
case distinguishes between order of
suspension of the sentence and stay of
conviction.

10. In AIR (2007) SC 1003(Navjot
Singh Sidhu Vs. State of Punjab &
another) the Apex Court has said that sub
section (1) of Section 389 says that
pending any appeal by a convicted person
the appellate Court may, for reasons to be
recorded by it in writing order that the
1252 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
execution of the sentence or order
appealed against be suspended, and also,
if he is in confinement be released on bail,
meaning thereby Sub-section confers
power upon the Court not only to suspend
the execution of sentence and grant bail
but also to suspend the operation of the
order appealed.

11. From perusal of Navjot Singh
Sidhu's case(supra) it appears that the
Court has power to suspend the sentence
but such power should not be exercised in
a routine manner. The Court has to see its
ramification and after considering the
facts and circumstances of the case an
appropriate order should be passed.

12. In Rama Narang Vs. Ramesh
Narang 1995 STPL(LE) 20354 SC the
Apex Court has said that in certain
situations the order of conviction can be
executable, in the sense, it may incur a
disqualification . In appropriate cases the
power under Section 389(1) of the Code
can be invoked. In nutshell in this case
law also the Apex Court has said that an
order to suspend the sentence should not
be passed in a routine manner and before
disposing of such prayer the Court should
look
into
the
entire
facts
and
circumstances of the case and the
ramification which may ensue if an order
is passed in favour of the appellant.

13. Keeping in view the above
guidelines this Court has to see whether in
the instant case it should exercise its
discretion in favour of the appellant or
not. In the case in hand the appellant
S.K.Agarwal has been found guilty and
convicted under section 13(2) read with
section 13(1) (d) of the Prevention of
Corruption Act, 1988. I have examined
the judgment of the learned lower Court
with caution. Keeping in view the facts
and circumstances of the case I do not
find that this Court should exercise its
discretion in favour of the appellant.

14. On the basis of the above
discussions, I am of the view that the
relief of suspending the sentence prayed
for by the appellant can not be granted
and therefore, the same is refused.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.09.2012

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE SHABIHUL HASNAIN, J.
THE HON'BLE DEVENDRA KUMAR ARORA, J.

Misc. Bench No. 10159 of 2010

Connected with Misc. Bench No. 2037 of
2011; Misc. Bench No. 7265 of 2010;
Misc.Bench No. 7265 of 2010; Misc.
Bench No. 7711 of 2010 and Misc.Bench
No. 811 of 2012

Brij Kishore Verma

 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri Birendra Narain Shukla
Sri Beni Prasad Gupta
Sri Syed Ali Rehan
Sri Sushil Kumar Singh
Sri Arvins Kumar Singh
Sri Amitabh Kumar Rai
Sri Neerav Chitravanshi
Sri Sheo Prakash Singh
Sri Akhilesh Kalra

Counsel for the Respondents:
Smt. Bulbul Godiyal
Additional Advocate General assisted by
Sri Pushkar Bhagel
Ms. Alka Saxena for Union of India