Kerala High Court
James Joseph @ Joemon vs Union Of India on 30 March, 2023
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
Thursday, the 30th day of March 2023 / 9th Chaithra, 1945
CRL.M.APPL.NO.2/2023 IN CRL.A NO. 190 OF 2023
CC 10/2012 OF THE SPECIALCOURT (SPE/CBI)-I, ERNAKULAM
PETITIONER/APPELLANT/ACCUSED NO.3:
JAMES JOSEPH @ JOEMON, AGED 62 YEARS,
MANAGING PARTNER OF M/S HOTEL LYNDAS RESIDENCY, KUTHUPARAMBA, KANNUR
- 670643. S/O M C JOSEPH, MANIMALA HOUSE, KOODAMCHALIL ROAD,
MARYKUNNU P.O., KOZHIKODE, PIN - 673012.
RESPONDENT/RESPONDENT/STATE:
UNION OF INDIA, REPRESENTED BY CENTRAL BUREAU OF INVESTIGATION
THROUGH THEIR STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM, PIN
- 682031. (CRIME NO RC31(A)/2011/CBI/ACB/COCHIN)
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the conviction passed by the Court of
Special Judge (SPE-CBI)-I, Ernakulam in CC No.10/2012 till the disposal of
the above Criminal Appeal/allow the petitioner to renew the license till
the disposal of Criminal Appeal by allowing this petition in the interest
of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.S.RAJEEV, V.VINAY, M.S.ANEER, SARATH
K.P., PRERITH PHILIP JOSEPH, Advocates for the petitioner and of the
DEPUTY SOLICITOR GENERAL OF INDIA for the respondent, the court passed the
following:
P.T.O.
Dr. Kauser Edappagath, J
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Crl.M.A.No.2/2023
in
Crl.A.No.190/2023
-------------------------------
Dated this the 30rd day of March, 2023
--------------------------------
ORDER
This is an application filed by the accused No.3 under Section 389(1) & (2) read with 482 of Cr.P.C to suspend the conviction in C.C.No.10/2012 on the files of the Special Court(SPE/CBI)-I, Ernakulam (for short the court below).
2. The petitioner is the Managing partner of M/s. Hotel Lyndas Residency. He, along with accused Nos. 1 and 2 faced trial for the offences punishable under Section 120B of the IPC, Sections 7, 12 & 13(2) read with 13(1)(d) of the Prevention of Corruption Act.
4. The prosecution case is that the accused Nos. 1 and 2 while working as public servants in the capacity of Assistant Director and Tourist Information Officer (Adhoc), India Tourism, Kochi, hatched a criminal conspiracy at Kochi to issue three star Crl.M.A.No.2/2023 in Crl.A.No.190/2023 -:2:- classification in favour of the hotel M/s. Lyndas Residency of which the petitioner is the Managing Partner and in furtherance of the said conspiracy, they contacted the representatives of the petitioner over phone and demanded illegal gratification to speed up the issuance of three star classification. The petitioner joined the conspiracy and agreed to make the payments and accordingly, the representatives of the petitioner went to India Tourism, Kochi office, handed over the bribe money which was received and accepted by the accused Nos. 1 and 2.
5. The court below after a full-fledged trial found the accused No. 1 not guilty for the offences alleged against him and he was acquitted. The accused No.2 and 3 were found guilty for the offences punishable under Sections 120B of the IPC read with Sections 7, 12 13(2) read with 13(1)(d) of the PC Act and convicted for the said offences. Sentence was also passed against the accused Nos. 2 and 3. The execution of sentence of the petitioner was already suspended by this court.
6. The learned DSGI representing the respondent sought time to file objection/statement. However, the learned counsel Crl.M.A.No.2/2023 in Crl.A.No.190/2023 -:3:- for the petitioner submits that unless the application is considered today and order is passed, the bar license of the petitioner company will be suspended. In these circumstances, I directed both the counsel to address the arguments.
7. I have heard the learned counsel for the petitioner and the learned DSGI in length.
8. The learned counsel for the petitioner submitted that this is an exceptional case where the power vested by this Court under Section 389 (1) of Cr.P.C to suspend the conviction could be invoked. The counsel further submitted that, unless the conviction is suspended, the bar license of the petitioner company will not be renewed. On the other hand, the learned DSGI submitted that no valid ground has been canvassed by the petitioner in the application to get the conviction suspended. The learned DSGI also submitted that the power under Section 389(1) of Cr.P.C could be exercised only in exceptional cases and the fact that the license could not be renewed is not a criteria while considering an application under Section 389(1) of Cr.P.C.
9. The hotel in question run by the petitioner is hotel Crl.M.A.No.2/2023 in Crl.A.No.190/2023 -:4:- 'Lyndas Residency'. The evidence adduced by the prosecution would prove that ₹50,000/- (currency notes 100 Nos. of ₹500 denomination) marked as MO17 and ₹5,000/- (currency notes 5 Nos of ₹1000 denomination) marked as MO18 kept in MO19 envelope were recovered from the possession of the accused No.2. According to the prosecution, the said bribe money was given by the petitioner. There is no direct evidence to prove the same. No evidence was adduced by the prosecution to prove the source of money allegedly utilised to bribe the accused No.2. According to the prosecution, PW30, the General Manager of the Hotel Lyndas Residency accompanied the petitioner to the India Tourism office and paid the bribe to the accused No.2. But he turned hostile to the prosecution. PW28, the driver who allegedly drove the car of A3 on the day also turned hostile. However, the court below relied on circumstances to prove that the petitioner gave those money to the accused No.2. Thus there are only circumstantial evidence to connect the petitioner with the alleged offence.
10. It is not in dispute that if the order of conviction is not Crl.M.A.No.2/2023 in Crl.A.No.190/2023 -:5:- suspended, the petitioner will not be able to renew the bar license and able to conduct his business because of the bar under Section 13 A (4) of the Foreign Liquor Rules. The learned DSGI relied on the decision of the Apex Court in K.C. Sareen v. CBI, Chandigarh [(2001) 6 SCC 584], in which it was held that the power to suspend the conviction should be exercised in exceptional cases, having regard to all the aspects including the effect of such suspension. It was further held that when a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted persons. In the said case, the accused who prayed for the suspension of sentence was a public servant. On the other hand, the petitioner before me is not a public servant. A Single Bench of this Court in C.P. Maggie & Another v. State of Kerala [Crl.M.A.No.4779/2017 in Crl.Appeal No.781/2017 Crl.M.A.No.2/2023 in Crl.A.No.190/2023 -:6:- decided on 13.10.2017] suspended the conviction on a similar situation, solely on the ground that unless the conviction is suspended, the bar license could not be renewed. The learned Single Judge relying on K.C. Sareen (supra) took the view of the Apex Court that different standards should be applied for public servants and convicts other than public servants. This Court again in Ratheesh T.V. v. State of Kerala [Crl.M.C.No.7033/2018) decided on 23.10.2018] suspended the conviction only on the ground that unless the conviction is suspended, the license of the toddy shop of the accused cannot be renewed.
11. Considering all these circumstances, I am of the view that this can be considered as an exceptional case where the conviction of the petitioner vide the impugned judgment could be suspended till the disposal of the appeal. While suspending the sentence, the petitioner was directed to deposit 1/3 rd of the entire fine amount.
In view of the above findings, the application is allowed. The conviction of the petitioner stands suspended on condition Crl.M.A.No.2/2023 in Crl.A.No.190/2023 -:7:- that the petitioner shall execute a bond for ₹2,00,000/-(Rupees two lakhs only) with two solvent sureties for the like sum each to the satisfaction of the court below and on further condition that the petitioner shall deposit the remaining 2/3rd of the fine amount within a period of one month before the court below. It is made clear that the observations made in this order are for the limited purpose of adjudicating this application.
Sd/-
DR. KAUSER EDAPPAGATH, JUDGE H/o kp 30-03-2023 /True Copy/ Assistant Registrar