Bombay High Court
C.B.I vs P.V.Subbarao on 31 August, 2018
Dixit
IN THE SPECIAL COURT AT BOMBAY
( Constituted under the Special Court [Trial of Offences
Relating to Transactions in Securities] Act, 1992 )
SPECIAL CASE NO.4 OF 1996
Central Bureau of Investigation, ]
Mumbai. ] ... Complainant
Versus
1. Prattipati Vankata Subbarao (Since Deceased) ]
2. R.L. Kamath (Since Deceased) ]
3. Kalimuthu Kailasham ]
4. Anil Diwakar Padhye ]
5. Arun Narendra Bavdekar ]
6. Rama Subramanian Sitaraman ]
7. Vinayak Narayan Deosthali ]
8. Makarand Vasant Shidhaye ]
9. Coodli Ravi Kumar (Discharged) ]
10. Seethapathy Suresh Babu (Discharged) ]
11. Mayuram Subramanian Srinivasan ]
12. Harshad Shantilal Mehta (Since Deceased) ]
13. Ashwin Shantilal Mehta ]
14. Sudhir Shantilal Mehta ]
15. Pankaj Vrijlal Shah ]
16. Atul Manubhai Parekh ]
17. Hiten Bhupatrao Mehta ] ... Accused
Mr. R.S. Mhamane, Special P.P. for the Complainant-CBI.
Mr. Indrajeet Kulkarni for the Legal Heirs of deceased Accused No.8-
Makarand Vasant Shidhaye
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CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
RESERVED ON : 23 RD AUGUST 2018.
PRONOUNCED ON : 31 ST AUGUST 2018.
ORDER :
1. Heard Mr. Mhamane, learned Special P.P. for the Complainant- C.B.I., and Mr. Kulkarni, learned counsel for the legal heir of deceased Respondent No.8-Makarand Vasant Shidhaye.
2. This pertains to the payment of fine by Accused No.8-late Makarand Vasant Shidhaye in Special Case No.4 of 1996, who is convicted and sentenced pursuant to the 'Judgment and Order' dated 12th April 2006 passed by this Court, as follows :-
For the offence punishable under Section 409 of IPC and sentenced to suffer R.I. for 5 years and to pay fine of Rs.1,00,000/-; in default of payment of fine, to suffer R.I. for 6 months;
For the offence punishable under Section 409 r/w. Section 107 of IPC and sentenced to suffer R.I. for 3 years and to pay fine of Rs.1,00,000/-;2/14 ::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 03:01:46 :::
in default of payment of fine, to suffer R.I. for 3 months;
For the offence punishable under Section 477-A of IPC and sentenced to suffer R.I. for 3 years and to pay fine of Rs.1,00,000/-; in default of payment of fine, to suffer R.I. for 3 months;
For the offence punishable under Section 477-A r/w. Section 107 of IPC and sentenced to suffer R.I. for 3 years and to pay fine of Rs.1,00,000/-;
in default of payment of fine, to suffer R.I. for 3 months;
For the offence punishable under Section 13(1)
(c) r/w. 13(2) of the Prevention of Corruption Act and sentenced to suffer R.I. for 1 year and to pay fine of Rs.50,000/-; in default of payment of fine, to suffer R.I. for 3 months (aggregating to Rs.4,50,000/-);
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3. Against this 'Judgment and Order', Accused No.8- Makarand Vasant Shidhaye had preferred Criminal Appeal, bearing No.636 of 2006, in the Hon'ble Supreme Court. The said Appeal was taken up for consideration by the Hon'ble Supreme Court, along with Criminal Appeals preferred by the other co-accused. The Hon'ble Supreme Court has, vide its order dated 27th April 2016, maintained the conviction of the Appellants, including Accused No.8-Makarand Vasant Shidhaye, and reduced the sentence to the period already undergone and directed the Appellants to deposit the fine, as imposed by the Special Court, within four weeks from 27th April 2016.
4. As Accused No.8-Makarand Vasant Shidhaye failed to pay the fine amount within the stipulated period, the Registry has issued notice on 12th May 2016, calling upon him to pay the total fine amount of Rs.4,50,000/- on or before 25th May 2016.
5. In response to the said notice, C.B.I. has submitted a report stating that, Accused No.8-Makarand Vasant Shidhaye has expired on 20th December 2010 and enclosed the 'Death Certificate' dated 1 st January 2011, issued by the Municipal Corporation of Greater Mumbai.
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6. In view thereof, the Office has placed submission before this Court as to 'whether in the light of Section 70 of IPC, the CBI can be directed to recover the fine amount of Rs.4,50,000/- from the property of deceased Accused No.8-Makarand Vasant Shidhaye?'
7. In response thereto, the legal heir of Accused No.8, namely, his wife-Madhuri Makarand Shidhaye, has filed affidavit on record stating that, when Criminal Appeal No.636 of 2006 came to be decided by the Hon'ble Supreme Court on 27th April 2016, the Advocate on record was not aware that Accused No.8-Makarand Vasant Shidhaye has already expired and, therefore, after she came to know about the said order, on the receipt of the notice issued by this Court through C.B.I. about recovery of the fine amount, she has filed Criminal Application Nos.17712 of 2016 and 17713 of 2016 in the said Appeal before the Hon'ble Supreme Court and the Hon'ble Apex Court was pleased to pass the order on the said applications on 25th April 2017, recalling the earlier order and dismissing the Appeal preferred by Accused No.8-Makarand Vasant Shidhaye as abated.
8. In the light of the same, the Applicant-Madhuri Makarand Shidhaye has stated that, as the order passed by this Court was a 5/14 ::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 03:01:46 ::: composite order of sentence and fine, by virtue of abatement of the Appeal, now the question of payment of fine does not arise and hence she has prayed that fine may not be recovered from her or from the property of deceased Accused No.8-Makarand Vasant Shidhaye .
9. In this respect, the provisions of Section 394 of the Code of Criminal Procedure, 1973, are relevant and they read as follows :-
"394. Abatement of Appeals :-
(1) Every Appeal under Section 377 or Section 378 shall finally abate on the death of the Accused;
(2) Every other Appeal under this Chapter (except an Appeal from a sentence of fine) shall finally abate on the death of the Appellant;
Provided that, where the Appeal is against a conviction and sentence of death or of imprisonment, and the Appellant dies during the pendency of the Appeal, any of his near relatives may, within thirty days of the death of the Appellant, apply to the Appellate Court for leave to continue the Appeal; and if leave is granted, the Appeal shall not abate.
Explanation- In this Section, "near relative" means a parent, spouse, lineal descendant, brother or sister."
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10. Perusal of this Section, thus, makes it clear that, every Appeal preferred against the order of conviction and sentence, abates on the death of the Accused-Appellant. However, perusal of sub-clause (2) further makes it clear that, Legislature, in its wisdom, has made an exception in cases of an Appeal filed from a sentence of fine. The said exception is made since even after the death of the Appellant, the State would be entitled to recover that amount from his estate, where he has share in the said property and, therefore, in such cases, the Appeal would not abate.
11. The provisions of Section 70 of the IPC in this respect are also relevant. Section 70 of the IPC reads as under :-
"70. Fine leviable within six years, or, during imprisonment. Death not to discharge property from liability :-
The fine, or, any part thereof, which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time, previous to the expiration of that period; and the death of the offender, does not discharge from the liability any property, which would, after his death, be legally liable for his debts."7/14 ::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 03:01:46 :::
12. Thus, this Section makes it further clear that, the death of the offender does not discharge him from the liability of payment of fine, as, after his death, the property left behind by him in the hands of his legal heirs would be legally liable for his debts.
13. This is the very analogy, which is elaborated by the Hon'ble Apex Court in the case of Harnam Singh Vs. The State of Himachal Pradesh, (1975) 3 SCC 343, and further confirmed by the Hon'ble Apex Court in the case of State of Andhra Pradesh Vs. Narasimha Kumar and Others, (2006) 5 SCC 683. In paragraph Nos.9 and 10 of the former Judgment, it is held as follows :-
"9. Every other appeal, under Chapter XXXI, except an appeal from a sentence of fine, finally abates on the death of the appellant. By "every other appeal" is meant an appeal other than one against an order of acquittal, that is to say, an appeal against an order or conviction. Every appeal against conviction, therefore, abates on the death of the accused, except an appeal from a sentence of fine. An appeal from a sentence of fine is excepted from the all pervasive rule of abatement of criminal appeals for the reason that, the fine constitutes a liability on the estate of the deceased and the legal representatives, on whom the estate devolves, are entitled to ward off that liability. By Section 70 of the Penal Code, the fine can be levied at 8/14 ::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 03:01:46 ::: any time within six years, after the passing of the sentence, and if the offender has been sentenced for a longer period than six years, then, at any time, previous to the expiration of that period; "and the death of the offender does not discharge from the liability any property, which would, after his death, be legally liable for his debts." The fact that the offender has served the sentence in default of payment of fine, is not a complete answer to the right of the Government to realize the fine, because, under the proviso to Section 386(1)(b) of the Code, the Court can, for special reasons to be recorded in writing, issue a warrant for realizing the fine, even if the offender has undergone the whole of the imprisonment in default of payment of fine. The sentence of fine remains outstanding, though the right to recover the fine is circumscribed by a sort of a period of limitation prescribed by Section 70, Penal Code.
10. The narrow question, which then requires to be considered is, 'whether an appeal from a composite order of sentence, combining the substantive imprisonment with fine, is, for the purposes of Section 431, not an appeal from a sentence of fine?' It is true that, an appeal from a composite order of sentence is ordinarily directed against both the substantive imprisonment and the fine. But, such an appeal does not for that reason cease to be an appeal from a sentence of fine. It is something more, not less, that an appeal from a sentence of fine only and it is significant that the parenthetical clause of Section 431 does not 9/14 ::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 03:01:46 ::: contain the word "only". To limit the operation of the exception contained in that clause, so as to take away from its purview appeals directed both against imprisonment and fine is to read into the clause the word "only", which is not there and which, by no technique of interpretation, may be read there. The plain meaning of Section 431 is that, every criminal appeal abates on the death of the accused, "except an appeal from a sentence of fine". The Section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. If by the Judgment under appeal, a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine, within the meaning of Section 431. All that is necessary is that, a sentence of fine should have been imposed on the accused and the appeal filed by him should involve the consideration of the validity of that sentence."
14. From the above-said observations made by the Hon'ble Apex Court, it can be clearly understood that, if an Appeal is preferred against an order of conviction of the Trial Court and the sentence is either composite sentence of imprisonment, or, fine, or, is merely a sentence of fine, in both the cases, Appeal would not abate on the death of the Appellant.
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15. As per the Proviso to Section 394 of the Cr.P.C., if during the pendency of the Appeal, the Appellant dies, any of his near relatives are at liberty to apply to the Appellate Court for leave to continue the Appeal and if leave is granted, the Appeal shall not abate. From this proviso, it is obvious that the obligation to file an application for continuation of an Appeal is cast on the near relatives and if no such application is filed by the near relatives within the limit prescribed by the said Proviso, the Appeal will not be continued and it will stand abated.
16. Here in the case, the legal heir of Accused No.8-Makarand Vasant Shidhaye, i.e. his wife - Madhuri Sidhye, who has filed her affidavit-in-rejoinder, was at liberty to file such application before the Hon'ble Supreme Court for continuation of the Appeal filed by her husband. If she had made such application and if the leave was granted, the Appeal would not have been abated. In that case, if she has succeeded and the conviction was set aside, then the estate of Accused No.8-Makarand Vasant Shidhaye would have been spared from the liability of payment of fine. However, admittedly, she has not made such application and as a result, the Appeal is dismissed as abated. Therefore, the conviction and sentence recorded by this 11/14 ::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 03:01:46 ::: Court against Accused No.8-Makarand Vasant Shidhaye stands. As regards the sentence of imprisonment, admittedly, it will abate, in view of the death of Accused No.8-Makarand Vasant Shidhaye.
17. However, as regards the sentence of fine, in view of Section 70 of the IPC, that sentence will stand till today for the well-said reason that, the fine constitutes a liability on the estate of the deceased and the legal representatives, on whom the estate devolves, are liable to ward off that liability.
18. For that matter, it can also be stated that, even if the offender has served the sentence in default of payment of fine, it is not a complete answer to the right of the Government to realize the fine, because, under the proviso to Section 386(1)(b) of the Cr.P.C., the Court can, for special reasons to be recorded in writing, issue a warrant for realizing the fine, even if the offender has undergone the whole of the imprisonment in default of payment of fine. The sentence of fine, thus, remains outstanding, though, at times, the right to recover the fine is also circumscribed by a sort of a period of limitation prescribed by Section 70 of IPC.
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19. The point, therefore, to be stressed is that, mere dismissal of the Criminal Appeal as 'abated', does not absolve the property left behind by the Accused from the liability of paying the fine amount. Here in the case, therefore, the option, which was open to the legal heir of deceased Accused No.8-Makarand Vasant Shidhaye of seeking the waiver of the fine amount, in view of death of Accused No.8, was to apply to the Hon'ble Supreme Court, where the Appeal was pending. In the absence of such order from the Hon'ble Supreme Court, this Court cannot even exercise that power to dispense with the payment of fine.
20. Though Mr. Kulkarni, learned counsel for the legal heir of Accused No.8- Makarand Vasant Shidhaye, has relied upon the Judgment of this Court in the case of Shri Gopala Balu Kamble Vs. The State of Maharashtra, 2012 ALL MR (Cri) 300 , to submit that, in the said Judgment, this Court has, on abatement of the Appeal, due to death of the Appellant, set aside even the order of payment of fine, as the Appeal would abate in respect of the sentence of imprisonment; in my considered opinion, as it was done in the Appeal by the Appellate Court and not by the Trial Court, the said 13/14 ::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 03:01:46 ::: Judgment cannot be of any assistance to seek such prayer before this Court.
21. As stated above, the only proper remedy for the legal heir of deceased Accused No.8-Makarand Vasant Shidhaye was to make such prayer before the Hon'ble Supreme Court and to that end, sufficient opportunity was also given. However, as it is not done, this Court is left with no other option, but to recover the amount of fine from the estate of deceased Accused No.8-Makarand Vasant Shidhaye.
22. The C.B.I. is, therefore, directed to recover the fine amount of Rs.4,50,000/- from the property left behind by deceased Accused No.8-Makarand Vasant Shidhaye.
[DR. SHALINI PHANSALKAR-JOSHI, J.] 14/14 ::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 03:01:46 :::