@JUDGMENTTAG-ORDER
T. Mathivanan, J.@mdashThis petition coming on for orders upon perusing the petition and the Memorandum of Grounds in Crl. Appeal No. 646/2010 on the file of the High Court and upon hearing the arguments of Mr. K. Rajasekaran, Advocate for the petitioner and of Mr. N. Chandrasekaran, Special Public Prosecutor for CBI Cases, on behalf of the Respondent the Court made the following order :-
This criminal miscellaneous petition is filed by the petitioner, after invoking the proviso to Section 389(1) of the Code of Criminal Procedure, to suspend the conviction imposed on him in the judgment dated 4-10-2010 and made in C.C. No. 17 of 2002, on the file of the learned XI Additional Special Judge for CBI Cases, Chennai.The petitioner along with two others was charge-sheeted by the Inspector of Police, S. E. CBI-B.S. & B.S. & F.C., Chennai alleging that they had committed the offences under Sections 120-B, 409, 420, 467, 468 r/w 471, IPC r/w 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
2. The petitioner is the third accused in the above said case in C.C. No. 17 of 2002. After completion of the trial, the petitioner stood
i. convicted under Sections 120B r/w 409, 420, 467, 468 r/w 471, IPC and u/s 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced to suffer two years of rigorous imprisonment and to pay a fine of Rs. 20,000/- in default to suffer further three months of simply imprisonment;
ii. convicted under Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced to suffer two years of rigorous imprisonment for each count and also to pay a fine of Rs. 20,000/- for each count, in default to suffer further three months of simple imprisonment for each count; and
iii. convicted u/s 409, IPC and sentenced to suffer two years of rigorous imprisonment and to pay a fine of Rs. 20,000/-, in default to suffer further three months of simple imprisonment.
The sentenced were directed to run concurrently and the period of incarceration undergone till the pronouncement of judgment was directed to be given set-off u/s 428, Cr. PC.
3. The total fine amount of Rs. 1,40,000/-was paid on receipt. The other two accused were also found guilty, convicted and sentenced.
4. Impugning the judgment, the petitioner has preferred the appeal before this Court in Crl. A. No. 646 of 2010. Pending disposal of the appeal, the petitioner had filed a miscellaneous petition in M.P. No. 1 of 2010 to suspend the sentence. That petition was allowed by this Court on 28-10-2010 and thereby the sentence imposed on him was suspended pending disposal of the appeal. Now, the petitioner has approached this Court with the present miscellaneous petition to suspend the order of conviction imposed on him for the reasons assigned in the petition.
5. Before we go into the merits and demerits of the case, the prime and foremost question to be answered is as to whether the proviso to section 389(1) of the Code of Criminal Procedure confer power upon the Appellate Court to suspend the order of conviction also.
Sub-section (1) to Section 389 of the Code of Criminal Procedure enacts as follows :
Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
6. The proviso to sub-section (1) to Section 389 of the Code of Criminal Procedure confers discretionary power to the Appellate Court to grant the following relief''s to a convicted person :
a. The Appellate Court may order suspension of execution of sentence
or
b. Suspension of the Order appealed against
and
c. If the convicted person is in confinement, he may be ordered to be released on bail or on his own bond.
7. It is obvious to note here that the proviso to sub-section (1) to Section 389 of the Code of Criminal Procedure does not specifically empower the Appellate Court to suspend the order of conviction pending disposal of the appeal. When there is no specific provision incorporated, whether it could be presumed that the order of conviction can also be suspended by pressing into service of sub-section (1) to Section 389 of the Code of Criminal Procedure.
8. The Legislators, while enacting this particular section, have carefully employed the word "For the reasons to be recorded by it in writing". This would cannote the definite meaning that even to suspend the order of sentence and to release a convicted person on bail, the Appellate Court may have to record the reason in writing.
9. In Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673 : (2007) 1 SCC (Cri) 417: 2006 AIR SCW 6365 and
10. Emphasis is supplied in Lalsai Khunte v. Nirmal Sinha, (2007) 9 SCC 330 (335) : (2007 3 SCC (Cri) 149 : (AIR 2007 SC (Supp) 495) in which it is held that simple order of suspension of sentence will not operate as staying the conviction.
11. In the present case on hand, the petitioner had joined in the Union Bank of India in 1983. During May 1998, he was transferred to Egmore Branch. In that branch one Maharaja of Forest Products was having certain accounts like C.C. account and Inland and Import facilities. It is contended that the petitioner, after joining to the Egmore Branch, had followed the same procedure, which was in existence there with proper guidelines prescribed by the banking practice. Every sanction and approval was made after the approval of the Regional Office and after getting the opinion of the panel Advocates.
12. Mr. K. Rajasekaran, learned counsel for the petitioner has submitted that M/s. Maharaja Forest Products had become NPA and that the bank had come to know that the documents mortgaged by the first accused Haji Mohammed were forged and fabricated. Further, he had also cheated various banks by forging and fabricating the documents and availed various loan facilities. For these reasons, the bank had lodged a complaint to the respondent.
13. The learned counsel has also added that the Union Bank of India had issued Articles of charge No. CO IRD OS VIG 170 dated 16-6-2004 and conducted detailed departmental enquiry and in the result the Disciplinary Authority on 29-4-2005 had passed an order imposing a major penalty of ''reduction by four stages in time scale of pay for a period of four years with cumulative effect''.
14. The learned counsel has also maintained that the petitioner had already undergone the above said ordeal and the same was fully exhausted and now the petitioner has been wroking in the Union Bank of India as Senior Manager, at Chamiers Road Branch. In the meantime, the respondent Police had filed the charge-sheet before the trial Court against the petitioner and two others. The petitioner is the third accused, whereas one V.M.S. Haji Mohammed and one Thillai Selvan are ranked as A1 and A2 respectively.
15. It appears from the judgment, which is being impugned here, that totally 44 charges were framed, of which, six charges were framed against this petitioner being the third accused. After completion of trial, the Trial Court had found all the accused guilty in its judgment dated 4-10-2010 and convicted thereunder and the petitioner being the third accused was sentenced as detailed above. It is significant to note here that the substantive portion of the sentence imposed on the petitioner was already suspended by this Court on 28-10-2010 and made in M. P. No. 1 of 2010 in this appeal.
16. In this connection, the learned counsel for the petitioner has urged before this Court that after the petitioner was convicted, the Union Bank of India had now issued a Memorandum dated 19-5-2011 calling upon the petitioner as to why he should not be dismissed from service based on Section 10(1) of the Banking Regulation Act r/w Regulation 11 of the Union Bank of India Officer Employees'' (Discipline and Appeal) Regulations, 1976 on the ground that ''no banking company shall employ or continue the employment of any person who is convicted by a criminal Court of an offence involving moral turpitude''.
17. The learned counsel for the petitioner has also adverted to that the Memorandum was issued only based on the order of conviction passed by the Trial Court in C.C. No. 17 of 2002. Even after detailed departmental enquiry for the same issues and allegations, he was allowed to continue to work and hold his office. The management of the Bank had not chosen to dismiss him from service even after the enquiry, but issued the present Memorandum only based on the conviction order passed by the Trial Court.
18. The learned counsel has also added further that if the order of conviction is not suspended, then the management of the Bank would be free to dismiss the petitioner from service, for which their hands are not fettered. Further, the learned counsel has submitted that the petitioner was in no way connected with the offence committed by the first accused and by merits of the case no charge was proved by the respondent.
19. It appears from the record that the first charge insofar as the petitioner is concerned is that he had concealed the vital information to the sanctioning authority facilitating opening of bogus entries on various propped up firms allowing huge withdrawals beyond the sanctioned limits etc. all of which had caused wrongful loss to the tune of Rs. 431.60 lacs as on 2-1-2002 to the Bank and corresponding wrongful gain to A1 and A2.
20. The fifth charge is that the petitioner had dishonestly concealed the vital information from the higher authorities of existence of serious irregularities of 18 cheques amounting to Rs. 61,21,714/- purchased on earlier occasions returned unpaid from clearing despite the fact such irregularity was pointed out in the internal audit report.
21. The 35th charge is that the petitioner had opened two inland LCs and thereby caused wrongful loss to the Bank.
22. The 40th charge is that by making initial the petitioner had allowed the first accused to withdraw the excess beyond his official financial powers.
23. The 42nd charge is that he had received timbers worth of Rs. 50,000/- from the first accused.
24. The 44th charge is that the petitioner had accepted the forged documents i.e. I.T. returns, S.T. returns and financial statements without proper verification from the first accused.
25. Pertaining to the above charges, Mr. K. Rajasekaran, learned counsel for the petitioner has advanced his consolidated arguments as follows :
a. The petitioner had produced the entire records and information to the higher authorities and nothing was concealed and only acted upon the sanctioning advice given by the higher authorities.
b. The Trial Court had relied on Ex. P16, which is dated 1-8-2001. Whereas Ex. P14 dated 2-3-2001, which is much earlier than Exs. P16 and P14 acknowledged the fact of report about the returned cheques by the Branch.
c. The petitioner had not done anything or covertly for issuing the pay orders in the name of the Bank as his initials were obtained in the cheques of the first accused for passing the cheques in excess over the sanction limits and such pay orders were issued by two authorized signatories of the Bank.
d. The respondent-Police had not proved the fact that the petitioner had received timbers worth about Rs. 50,000/- and they had relied upon Ex. P237, the diary of the petitioner, which contains a note relating to the expenses.
e. Insofar as the 44th charge is concerned, it was disproved by the defence documents and that the documents were accepted after verification.
26. The learned counsel for the petitioner has submitted further that the petitioner is having unblemished record of service excepting the above said case, and he is also having a fair chance to succeed in the appeal. He has also added that the petitioner is the only bread winner of his family and his sons are studying in colleges and therefore, if he is dismissed from service, he would be put to irretrievable loss, much hardship, besides mental agony and grave prejudice. He has also submitted that the petitioner would be affected if the conviction is eventually set aside in the appeal. But, he would be removed from service in the meantime if the conviction is not suspended.
27. Section 10(1)(b) of the Banking Regulation Act, 1949 reads as follows :
(1) No banking company -
(b) shall employ or continue the employment of any person - (i) who is, or at any time has been, adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who is, or has been, convicted by a criminal Court of an offence involving moral turpitude;
28. In this connection, the learned counsel for the petitioner has produced a copy of the Memorandum dated 19-5-2011, issued by the Union Bank of India, Department of Personnel Industrial Relations Division, Central Office, wherein it is stated that the Bank is bound by the Section 10(1) of the Banking Regulation Act, 1949, amended from time to time, which states that no Banking Company shall employ or continue the employment of any person, who is convicted by a Criminal Court of an offence involving moral turpitude.
29. It also reads that under Regulation 11 of the Union Bank of India Officer Employees'' (Discipline and Appeal) Regulations 1976, it is proposed to impose on Shri K. Subramanian, the major penalty of dismissal from the services of the Bank with immediate effect. It also reads further that Shri, Subramanian (petitioner herein) is required to show cause within seven days of receipt hereof as to why aforesaid proposed penalty ''Dismissal from the services of the Bank with immediate effect'' should not be imposed on him. If Shri. Subramanian fails to submit his written explanation within the stipulated time, it will be presumed that he has no explanation to offer and the matter will be proceeded with accordingly.
30. It appears from the averments of the petition that on 16-6-2004 a charge memo viz. Articles of charge No. CO IRD OS VIG 179 was issued against the petitioner and a detailed enquiry was conducted and ultimately an order was passed on 29-4-2005 by the Disciplinary Authority imposing a major penalty of ''reduction by four stages in time scale of pay for a period of four years with cumulative effect''. The petitioner had already undergone the above said punishment and the same was completed and he has been now working in the Union Bank of India, as Senior Manager at Charmers Road Branch.
31. As rightly argued by the learned counsel for the petitioner, the respondent Police had charge-sheeted against the petitioner and other two accused only after the completion of ordeal of the punishment viz. reduction of four stages in time scale of pay for a period of four years with cumulative effect and now after the completion of the trial the petitioner has been found guilty and convicted therein and sentenced as stated above.
32. It is settled proposition of law that a person once convicted or acquitted, not to be tried for the same offence. In this regard, it may be quite relevant to refer the proviso to Section 300(1) of the Code of Criminal Procedure. Section 300(1) of the Code of Criminal Procedure reads as follows :
S. 300(1)
A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof:
33. It may also be appropriate to take umbrage of Article 20(1) of Constitution of India. Article 20(1) of Constitution of India reads as follows:
Art. 20(1)
No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
34. In
35. The learned counsel for the petitioner has argued that it may be necessary to keep in mind the consequence which may flow from recording order of conviction by the Trial Court, while construing the provisions of sub-section (1) of Section 389 of the Code of Criminal Procedure. The learned counsel has urged that in pursuant to the Memorandum dated 19-5-2011 the order of conviction recorded by the Trial Court would disentitle the petitioner from continuing the post as Senior Manager in the Union Bank of India and therefore he has urged that the consequence which would flow from recording the order of conviction cannot be simply ignored. He has also maintained that the Appellate Court while exercising the powers under sub-section (1) of Section 389 may construe the provisions as conferring the rights to suspend the order of conviction.
36. In support of his contention, the learned counsel for the petitioner has placed reliance upon the following decisions :
1.
2.
3. Peeru Muhammed v. The State of Kerala, CDJ 2009 Ker RC 527.
37. In the first case viz.
38. In the second case viz.
7. In view of the judgments of the Hon''ble Supreme Court, it can be concluded that following guidelines have been laid down by Hon''ble Supreme Court for exercising discretion of suspension of conviction during the pendency of appeal in cases of corruption :
(i) u/s 389, Cr. PC. the High Court has been conferred with a discretion to suspend the conviction in a given case;
(ii) While exercising the discretion the High Court is required to point out the exceptional facts and circumstances which in its opinion required it to stay the conviction;
(iii) Power of suspension of conviction should be sparingly exercised;
(iv) The discretion to suspend the conviction during pendency of the appeal should not be exercised in a mechanical manner;
(v) It is the duty of the High Court to look at all aspects including the ramification of keeping such conviction in abeyance;
(vi) The High Court is required to assign special reasons while suspending the conviction. The reasons like posible delay in disposal of the appeal and existence of arguable points by itself may not be sufficient to grant suspension of sentence; and
(vii) The circumstance of mala fide or bad faith by the State can also be considered as a factor for determination of the application.
39. After considering various circumstances, the learned single Judge of the High Court of Punjab and Haryana has ultimately held that "I have considered the ramification for keeping the conviction in abeyance besides various circumstances of the present case and am of the opinion that the only relief which can be granted to the appellant is that the order of "conviction simpliciter" will not be operated against him for the purpose of disciplinary proceedings. However, on the basis of his conduct leading to his conviction could always be used against him for the disciplinary proceedings initiated against him.
40. In the third case viz. Peeru Muhammed''s case, CDJ 2009 Ker RC 527 , the learned single Judge has held, after referring the decision of the Apex Court in
41. On the other hand, Mr. N. Chandrasekaran, learned Special Public Prosecutor for CBI cases has strongly objected to stay the order of conviction and he would submit that after an elaborate trial, the Trial Judge, on assessing the value of the evidences both oral and documentary, had concluded that the petitioner is found guilty and convicted thereunder and sentenced as detailed in the judgment. He has also argued that subsection (1) to Section 389 of the Code of Criminal Procedure does not confer any power to the Appellate Court to suspend the order of conviction and hence the arguments advanced by the learned counsel for the petitioner may be rejected.
42. In support of his contention, he has placed reliance upon the decision in
43. In this connection, the learned special Public Prosecutor for CBI cases has submitted that the petitioner herein has not shown any special circumstances to suspend the order of conviction and that the case of the petitioner could not be brought under the amplitude of the rare cases.
44. The learned Special Public Prosecutor for CBI cases has also placed reliance upon another decision in
45. Challenging the Order, an application was filed by the State for vacation of stay of conviction granted to the respondent by reason of the said order with a prayer to recall the same. When it was argued, the attention of the Apex Court was drawn to judgment in
The present petition is not maintainable. Order dated 11-1-2005 can neither be reviewed nor recalled. It was passed in the presence of the Deputy Advocate General, Punjab, who represented the respondent-State. The merits of the case were considered. It was considered that it will take a long time to decide the appeal and there are fairly good points to be argued. Hence, application u/s 389, Cr. P.C. was allowed and the conviction of the appellant recorded under Sections 7 and 13(2) of the Prevention of Corruption Act was suspended during pendency of appeal. There is no blanket bar imposed on the Appellate Court to grant stay of conviction in corruption cases. After going through the ''grounds of appeal'' and the contents of the application moved u/s 389, Cr. P.C. it was considered that it was an exceptional case. Hence, the conviction was stayed during pendency of the appeal. Sentence imposed on the appellant had already been stayed. Now, there exists no reason, either for vacation of the order dated 11-1-2005 or to review/recall the same.
46. In
267. No company shall, after the commencement of this Act, appoint or employ, or continue the appointment or employment of any person as its managing or whole time Director who -
(a), (b).....
(c) is, or has at any time been, convicted by a Court of an offence involving moral turpitude.
Rama Narang, the respondent No. 1 was tried before the Additional Sessions Judge, Delhi in Case No. 134 of 1985 (State v. Ram Lal Narang) and was convicted on December 22, 1986 for having committed offences punishable under Sections 120B and Section 420 read with Section 114 of Indian Penal Code. The Additional Sessions Judge imposed punishment of rigorous imprisonment for three months for offence u/s 120B and punishment of rigorous imprisonment of 2 1/2 years and a fine of Rs. 5,000/- in respect of offences under Sections 420 and 114 of Indian Penal Code. The substantive sentences of imprisonment were directed to run concurrently and in default of payment of fine respondent No. 1 was directed to undergo further rigorous imprisonment for two months.
47. Challenging the conviction and sentence the respondent No. 1 preferred a Criminal Appeal No. 17 of 1987 before the High Court of Delhi and the appeal was admitted by a learned single Judge by order dated January 21, 1987. Respondent No. 1/accused preferred Criminal Miscellaneous Petition No. 15 of 1987 seeking release on bail pending the disposal of the appeal. Respondent No. 1 also sought suspension of the operation of the impugned order. The learned Judge directed respondent No. 1 to be released on bail on furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount. The learned Judge also directed that the operation of the impugned order shall be stayed.
48. The respondent No. 1 Rama Narang is a member of the Narang family which is in possession of several properties including holdings in several companies. The appellant and respondent No. 5 are sons of respondent No. 1 born from the first wife. Respondent No. 1 divorced his first wife and has contracted second marriage and that seems to have led to the disputes between the father and the two sons. Respondent Nos. 1, 2 and 3 then instituted a Suit No. 2090 of 1992 on the original side of the Bombay High Court on July 16, 1992 and the appellant and respondent Nos. 4 and 5 were joined as party defendants.
49. The principal bone of contention between the parties in the notice of motion among other grounds was that whether respondent No. 1 could be appointed or continued as Director or Managing Director in view of the conviction. On hearing both sides, the learned Judge, by the impugned judgment, came to the conclusion that the appointment of respondent No. 1 on September 21, 1988 as Director and on June 25, 1990 as Managing Director is not void ab initio in spite of provisions of Section 267 of the Companies Act in view of order passed by the Delhi High Court in Criminal Miscellaneous Petition No. 15 of 1987.
50. Challenging the finding of the learned Judge, the appellant Ramesh Narang had filed an appeal before the Division Bench of Bombay High Court. The principal contention in that appeal, and which was also vehemently argued before the learned single Judge, was in respect of capacity of respondent No. 1 to be appointed as Director and Managing Director of the company after recording of conviction by Additional Sessions Judge, Delhi. The question which, therefore, squarely arises is whether the Criminal Court entertaining appeal against the order of conviction has power to suspend the order of conviction itself.
51. An argument was advanced on behalf of the appellant that sub-section (1) of Section 389 of the Code of Criminal Procedure entitled the Appellate Court to order suspension of execution of the sentence or order but the expression "or" under sub-section (1) should not be construed as a power covering the order of conviction itself.
52. On the other hand, it was urged on behalf of the first respondent that even assuming that provision of sub-section (11 of Section 389 of the Code do not confer power on the appellate Court to direct suspension of order of conviction, still such a power can be gathered from the provisions of Section 482 of the Code. Section 482 of the Code of Criminal Procedure deals with the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or prevent abuse of the process of any Court or otherwise to secure the ends of justice.
53. While advancing his argument, the learned counsel Mr. Cooper appearing for the first respondent therein had made reference to the decision of the Division Bench of Andhra Pradesh High Court in the case of
54. To arrive this conclusion, the Division Bench has placed reliance upon the decision of the Supreme Court, reported in AIR 1981 SC 547 (Vidya Charan Sukla v. Purshottam Lal Kaushik). Ultimately, the Division Bench of Andhra Pradesh High Court concluded that the convicted person could ask for suspension of the conviction. It was also held that the words "order appealed against" must be given a wider meaning as to include ''conviction'', also, so that the Court in appropriate or exceptional cases can suspend an order of ''conviction''.
55. The Division Bench of Andhra Pradesh High Court had further held that even otherwise Section 482 of the Code confers sufficient power upon the Appellate Court to suspend the order of conviction.
56. The decision of the Division Bench of Andhra Pradesh High Court was not accepted by the Division Bench of Bombay High Court. In this connection, the Division Bench of Bombay High Court has observed that with respect, we are unable to share the view taken by the Division Bench for the reasons which have been set out hereinabove and concluded that the powers of the Criminal Court flow from the Code and it is not open for the Criminal Court to assume powers only because the convicted person is likely to suffer certain disqualification under the provisions of other statutes.
57. Challenging the judgment of the Division Bench of Bombay High Court, the first respondent Rama Narang had preferred an appeal before the Hon''ble Supreme Court (Rama Narang v. Ramesh Narang, 1995 SCC (2) 513 : JT 1995 (1) 515. On hearing both sides, while penning down the judgment on behalf of the Full Bench, His Lordship the Hon''ble Mr. Justice A. M. Ahmadi, Chief Justice of India (as he then was), has observed in paragraph No. 19 as under:
19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act we sec no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the Court from granting an order to that effect in a fit case. The appeal u/s 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred u/s 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction. Although that issue in the instant case recedes in the background because High Courts can exercise inherent jurisdiction u/s 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of Bombay High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction u/s 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted persons does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.
58. On coming to the instant case on hand, this Court''s attention was drawn to the special circumstances narrated in the petition, which would go to show that the Union Bank of India had issued a Memorandum dated 19-5-2011, consequent to the order of conviction recorded by the Trial Court, calling upon the petitioner as to why he should not be dismissed based on Section 10(1) of the Banking Regulation Act, 1949 r/w Regulation 11 of Union Bank of India Officer Employees'' (Discipline and Appeal) Regulations, 1976 on the ground that ''no banking company shall employ or continue the employment of any person who is convicted by a Criminal Court of an offence involving moral turpitude''.
59. This Court has carefully examined every nook and corner and of the pros and cons of the case. This Court has also perused the judgment of the trial Court as well as the grounds of the Memorandum of appeal and is of considered view that this is an exceptional case and if the order of conviction is not stayed during the pendency of the appeal, there may be of every chance of the petitioner being dismissed from service.
60. In the light of the decision of the Apex Court in
61. It is also apparent that earlier the sentence imposed on the petitioner was suspended by this Court by its Order dated 28-10-2010 and made in M.P. No. 1 of 2010.
62. As rightly held by the Apex Court in
