Kerala High Court
Sreedharan vs State Of Kerala on 16 August, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
Friday, the 16th day of August 2024 / 25th Sravana, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO. 1319 OF 2024
CC 95/2011 OF ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR
APPLICANT/APPELLANT/3RD ACCUSED:
SREEDHARAN AGED 61 YEARS [FORMERLY III RD GRADE OVERSEER, RBC
SECTION NO.III, IIP DIVISION NO.II , CHALAKUDY] S/O.NARAYANAN,
AMBATTUPARAMBIL HOUSE,KANAKAMALA P.O.,THRISSUR DISTRICT, PIN -
680689
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of sentence of imprisonment
and fine imposed as per Judgment dated 22.06.2024 in C.C.No.95 /2011 on
the files of Court of Enquiry Commissioner and Special Judge Thrissur
against petitioner/appellant/accused no.3 till the disposal of this appeal
and be further pleased to release the petitioner on bail.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHEEJO CHACKO, SONITH THOMAS CHACKO,
Advocates for the petitioner and PUBLIC PROSECUTOR for the respondent, the
court passed the following:
'CR'
C.JAYACHANDRAN, J.
---------------------------------------------
Crl.M.A. No.1/2024 in Crl.A. No.1222/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1224/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1226/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1228/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1229/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1230/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1231/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1232/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1233/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1234/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1235/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1236/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1237/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1239/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1240/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1242/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1243/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1244/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1245/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1246/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1249/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1252/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1254/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1255/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1256/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1257/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1260/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1261/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1263/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1264/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1266/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1267/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1268/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1269/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1272/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1275/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1276/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1277/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1278/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1280/2024,
Crl.A.No.1222 of 2024 & conn. cases
- 2 -
Crl.M.A. No.1/2024 in Crl.A. No.1284/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1285/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1289/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1290/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1294/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1295/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1296/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1297/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1299/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1300/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1301/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1302/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1305/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1324/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1333/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1340/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1354/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1370/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1405/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1423/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1433/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1445/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1449/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1450/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1452/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1453/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1472/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1429/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1434/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1438/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1440/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1441/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1444/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1476/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1495/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1500/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1357/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1470/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1451/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1461/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1464/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1465/2024,
Crl.A.No.1222 of 2024 & conn. cases
- 3 -
Crl.M.A. No.1/2024 in Crl.A. No.1466/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1467/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1468/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1469/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1471/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1474/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1479/2024,
Crl.M.A. No.2/2024 in Crl.A. No.1100/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1400/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1404/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1412/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1422/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1426/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1428/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1431/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1439/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1446/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1457/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1460/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1475/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1477/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1482/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1485/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1487/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1498/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1508/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1510/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1513/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1517/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1522/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1527/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1531/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1534/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1535/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1537/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1539/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1540/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1544/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1547/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1555/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1556/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1560/2024,
Crl.A.No.1222 of 2024 & conn. cases
- 4 -
Crl.M.A. No.1/2024 in Crl.A. No.1561/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1562/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1564/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1567/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1309/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1319/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1344/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1351/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1359/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1360/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1365/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1369/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1551/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1553/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1318/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1371/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1372/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1377/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1385/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1389/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1390/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1396/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1397/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1399/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1550/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1353/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1342/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1356/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1361/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1480/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1481/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1483/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1488/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1489/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1493/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1499/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1501/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1503/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1509/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1512/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1518/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1524/2024,
Crl.A.No.1222 of 2024 & conn. cases
- 5 -
Crl.M.A. No.1/2024 in Crl.A. No.1530/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1538/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1437/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1443/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1448/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1478/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1491/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1532/2024,
Crl.M.A. No.1/2024 in Crl.A. No.1533/2024,
Crl.M.A. No.2/2024 in Crl.A. No.1169/2024,
Crl.M.A. No.2/2024 in Crl.A. No.1187/2024,
Crl.M.A. No.2/2024 in Crl.A. No.1184/2024,
Crl.M.A. No.2/2024 in Crl.A. No.1179/2024,
Crl.M.A. No.2/2024 in Crl.A. No.1178/2024
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Dated, this the 16th day of August, 2024
COMMON ORDER
Within the realm of Section 389 of the Code, can the Appellate Court direct deposit of fine, in full or part, as a pre-condition to suspend the Order of Sentence is the common issue raised in these 175 Criminal Miscellaneous Applications, which stems from equal number of Appeals preferred from the common judgment in 39 Calendar Cases - C.C.Nos.68 to 106 of 2011 - of the Special Court, Thrissur. These 39 cases were booked by the Vigilance and Anti-Corruption Bureau in connection with the execution of Idamalayar Crl.A.No.1222 of 2024 & conn. cases
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Irrigation Project for offences under Section 15, read with Section 13(1)(d) and Section 13(2) of the Prevention of Corruption Act, read with Section 120B and Section 477-A of the Penal Code. The appellants/accused persons were convicted for the above offences and were sentenced to undergo rigorous imprisonment for various terms, the maximum of which is 3 years; and a total fine of Rs.6 lakhs each, in each of the Calendar Cases.
2. Before addressing the issue, this Court will first refer to the status of the parties and the appeals preferred by them respectively. In the 39 Calender Cases, altogether 50 accused persons were there, of whom, one stands acquitted and six expired before the trial. Consequently, we have 175 appeals preferred before this Court. Crl.A. Nos.1222 and 1224 of 2024 are preferred by the 5th accused in C.C. Nos.96 and 74 respectively of the year 2011. Crl.A. Nos.1226, 1228, 1229, 1230, 1231, 1232, 1233, 1234, Crl.A.No.1222 of 2024 & conn. cases
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1235, 1236, 1237, 1239, 1240, 1242, 1243, 1244, 1245, 1246, 1249, 1252, 1254, 1255, 1256, 1257, 1260, 1261, 1263, 1264, 1266, 1267, 1268, 1269, 1272, 1275, 1276, 1277, 1278, 1280 and 1284 of 2024 are preferred by the 2nd accused in all the 39 connected cases before the Special Court. Crl.A. nos.1285, 1289, 1290, 1294, 1295, 1296, 1297, 1299, 1300, 1301 and 1302 of 2024) are preferred by various contractors - each having been arraigned as the 5th accused - in C.C. Nos.80, 75, 76, 87, 69, 68, 86, 85, 72, 98 and 70 of 2011. The same is the case with respect to Crl.A. nos.1305, 1324, 1333, 1340, 1354 and 1370 of 2024 preferred by various contractors, each arraigned as the 5th accused, in C.C. Nos.97, 94, 78, 102, 95 and 104 of 2011. Crl.A. no.1405 of 2024 is preferred by the 6 th accused in C.C. No.79/2011. Crl. A. nos.1423, 1433, 1445, 1449, 1450, 1452, 1453 and 1472 of 2024 are preferred by one Jayaprakash, the 4th accused in C.C. No.68 to 75 of the year 2011. Similarly, Crl. A. nos.1429, 1434, 1438, 1440, 1441, 1444, 1476, 1495 and Crl.A.No.1222 of 2024 & conn. cases
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1500 of 2024 are preferred by one M.T. Tomy, the 4th accused in C.C. Nos.76, 77, 78, 83, 84, 85, 86, 92 and 93 of 2011. One K.Paul, arraigned as 4th accused in C.C. No.94 and 95 of 2011, is the appellant in Crl.A. Nos.1357 and 1470 of 2024. One Sadasivan K.G., the 4th accused in C.C. Nos.96 to 106 of 2011, is the appellant in Crl.A. nos.1451, 1461, 1464, 1465, 1466, 1467, 1468, 1469, 1471, 1474 and 1479 of 2024. The first accused, who is common in all the 39 Calendar Cases, is the appellant in Crl. A. nos.1100, 1400, 1404, 1412, 1422, 1426, 1428, 1431, 1439, 1446, 1457, 1460, 1475, 1477, 1482, 1485, 1487, 1498, 1508, 1510, 1513, 1517, 1522, 1527, 1531, 1534, 1535, 1537, 1539, 1540, 1544, 1547, 1555, 1556, 1560, 1561, 1562, 1564 and 1567 of 2024. In Crl. A. nos.1309 and 1319 of 2024, one Sreedharan is the appellant, who is the 3 rd accused in C.C. Nos.94 and 95 of 2011 before the Special Court. So also, one M.A.Basheer is the appellant in Crl.A. Nos.1344, 1351, 1359, 1360, 1365, 1369, 1551, 1553 of 2024, who was the 3rd accused in Crl.A.No.1222 of 2024 & conn. cases
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C.C. Nos.68 to 75 of 2011 before the Special Court. One K.V.Devassy, the 3rd accused in C.C. Nos.96 to 106 of 2011 of the Special Court, is the appellant in Crl.A. nos.1318, 1371, 1372, 1377, 1385, 1389, 1390, 1396, 1397, 1399 and 1550 of 2024. P.M.Ramakrishnan, the 3rd accused in C.C. Nos.76 to 93 of 2011 before the Special Court, is the appellant in Crl.A. nos.1353, 1342, 1356, 1361, 1480, 1481, 1483, 1488, 1489, 1493, 1499, 1501, 1503, 1509, 1512, 1518, 1524 and 1530 of 2024. Crl.A. nos.1538, 1437, 1443, 1448, 1478, 1491, 1532 and 1533 of 2024 are also preferred by various contractors, who were arraigned as 5 th accused in C.C. Nos.90, 105, 83, 88, 71, 100, 93 and 99 of 2011 respectively of the Special Court.
3. Connected to the above series, five appeals bearing numbers Crl.A. Nos.1169, 1187, 1184, 1179 and 1178 of 2024 had already been admitted by this Court and sentence suspended, subject to the condition that the appellant therein shall pay a sum of Rs.50,000/-, Crl.A.No.1222 of 2024 & conn. cases
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besides furnishing bank guarantee for a sum of Rs.2,50,000/-, total fine amount being mulcted on each appellant being Rs.6,00,000/-. Similarly, Crl.A. no.1100 of 2024 had also been admitted by my learned predecessor, wherein also, a sum of Rs.50,000/- was directed to be deposited, besides execution of bail bonds. Applications are preferred in the above appeals seeking modification of the conditions stipulated for suspension of sentence.
4. Now, the common cause espoused by the learned counsel appearing for the appellants/petitioners is with respect to the quantum of fine, as also, the bank guarantee which could be directed to be furnished. In the appeals preferred by the 4th accused, Adv.John S.Ralph would challenge the very competence of the Appellate Court to direct deposit of fine.
5. In the appeals preferred by the 2nd accused, Sri.P.Vijayabhanu, learned Senior Counsel, instructed Crl.A.No.1222 of 2024 & conn. cases
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by Adv.Sruthy K.K., would submit that 2nd accused is common in all the 39 cases and a direction to deposit Rs.50,000/- each in every appeal would render compliance of the condition impossible, thereby rendering the benefits of the suspension itself nugatory. Learned Senior Counsel would submit that no pensionary benefits have been received by him, which renders it all the more difficult to comply with onerous condition, if any stipulated. Learned Senior would rely on the judgment of the Hon'ble Supreme Court in Guddan @ Roop Narayan v. State of Rajasthan [2023 (1) KHC 418] to point out that excessive conditions imposed on an appellant, in practical manifestation, acts as refusal of the bail granted.
6. The same is the submission made by Sri.C.P.Udayabhanu, who is appearing for A1, the common accused in all the 39 cases before the Special Court. Learned counsel would submit that the earnest money deposited is very much with the Government and Crl.A.No.1222 of 2024 & conn. cases
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that a substantial portion of the amount awarded has not been disbursed, despite orders from this Court. Even in respect of amounts disbursed, bank guarantee was insisted and furnished. Therefore, sufficient amount is available in the hands of Government to realise the fine component, is the essence of the submission made.
7. In the appeals preferred by the 3rd accused (various contractors in the above referred Calendar Cases), Adv.Sheejo Chacko would submit that, apart from 5% of the earnest money kept by the Government towards security, 10% of every part bill is withheld as retention amount. The loss assessed by the Vigilance Department is also withheld. On the basis of the orders issued by this Court in Writ Petitions preferred by the contractors, amounts were directed to be released, which, however, is also done on the strength of bank guarantees. Learned counsel would submit on merits that there is no evidence to convict Crl.A.No.1222 of 2024 & conn. cases
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the 3rd accused. As regards the allegation that there was irregularity with respect to supply of tender form, it is the submission of the learned counsel that there is an admission in Ext.D30 affidavit to the effect that there is no denial of tender forms to anyone. As regards the further allegation of 30% escalation with respect to tender excess over the estimated cost, learned counsel would submit that the estimate was prepared on the basis of the P.W.D. rates, which was finalised as early as on 1999, whereas the work was tendered in the year 2003-2004. The escalation in cost of materials is something admitted, even by the Vigilance. In respect of Crl.A.No.1300 of 2024, it is the contention of the learned counsel that the original contractor was held not liable, whereas the power of attorney holder was held liable.
8. This Court will separately deal with the contentions raised by Sri.John S.Ralph, who is Crl.A.No.1222 of 2024 & conn. cases
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appearing for the 4th accused (overseers who officiated in respect of different works), since the submissions are essentially on law, stemming from interpretation of Section 357(3), Cr.P.C.
9. On behalf of A5 (different contractors in the appeals referred to above) learned counsel Sri.Biju Martin would submit that a sum of Rs.4,55,857/- has already been withheld by the Department, whereas the liability found is less than Rs.3 lakhs as against A5. As per Annexure-A1, a sum of Rs.7,32,524/- is withheld. In other cases also, it is the submission of the learned counsel that 60% of the amount is withheld. In such circumstances, there arises no necessity for a hefty fine to be deposited, the interests of the State being safeguarded otherwise.
10. In answer to the above submissions, Sri.A.Rajesh, learned Special Public Prosecutor placed heavy reliance upon the decision of the Hon'ble Supreme Crl.A.No.1222 of 2024 & conn. cases
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Court in Satyendra Kumar Mehra @ Satendera Kumar Mehra v. State of Jharkhand [(2018) 15 SCC 139]. The said Criminal Appeal was preferred against an order of the High Court of Jharkhand, which directed deposit of fine amount as a pre-condition for suspension of sentence. The precise challenge was confined to the direction mandating deposit of fine amount. In paragraph no.34 of the judgment, the Hon'ble Supreme Court found that there are no fetters on the powers of the Appellate Court, while exercising jurisdiction under Section 389 Cr.P.C. Therefore, the power of the Court to direct deposit of fine or part thereof is traceable to Section 389, is the submission made. Learned Special Public Prosecutor would also emphasise that the challenge, which was espoused specifically against the direction to deposit the fine, was ultimately repelled by the Hon'ble Supreme Court. Learned Public Prosecutor would also rely on a judgment of a learned Single Judge of this Court in Ratnakaran v. State of Kerala [2006 KHC 1597]. This Crl.A.No.1222 of 2024 & conn. cases
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Court's attention was invited to paragraph no.17 of the judgment, wherein it was held that the courts, while suspending sentence under Section 389, can accept sufficient security by way of bank guarantee, instead of insisting for deposit of the fine amount. The learned Single Judge went on to hold that landed property, fixed deposit certificate etc., or any other security, which the court may deem fit can be accepted. However, it was cautioned that, the court has to ensure that the payment of recovery of fine can be effected, if ultimately the appeal is dismissed.
11. Having referred to the arguments advanced by the learned counsel appearing for the respective parties, this Court will now address the issue. One important thing to be noticed is that Section 389 does not expressly contemplate imposition of any condition, while suspending a sentence. The only pre-condition for suspension of sentence is to record reasons in writing; and what can be suspended is the execution of Crl.A.No.1222 of 2024 & conn. cases
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the sentence or order appealed against. Once the Court chooses to do so, the Court can direct release of the accused, if he is on confinement, on bail or on his own bond. Therefore, strictly adhering to the language of the Section, conditions, if any, to be imposed may have to be read into or traced to the power to release on bail, where the courts necessarily have the power to impose appropriate conditions.
12. However, the issue is no more res integra. The power of the Court to impose fine under Section 389 Cr.P.C. has been recognized by the Apex Court. The Hon'ble Supreme Court in Stanny Felix Pinto v. Jangid Builders Pvt. Ltd. [(2001) 2 SCC 416] held that it is advisable to direct deposit of fine, or part thereof, while suspending sentence under Section 389 Cr.P.C. This Court considered the issue in Mohammed v. State of Kerala [2006(1) KLT 970]. A learned Single Judge, after scanning the precedents on the point thus far, held that the Appellate Court is empowered to impose Crl.A.No.1222 of 2024 & conn. cases
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appropriate condition for suspension of sentence, but with a caveat that such conditions should be reasonable. In this regard, it is, however, relevant to note that both the above decisions were rendered on appeals carried from conviction for offence u/s.138 of the Negotiable Instruments Act, which possibly stands on a footing different from the crimes under the Penal Code. Nevertheless, in Satyendra Kumar Mehra (supra), the legal position is abundantly made clear by virtue of the observations contained in paragraph no. 34, which is extracted here below:
"34. We, however, make it clear that Appellate Court while exercising power Under Section 389 Code of Criminal Procedure can suspend the sentence of imprisonment as well as of fine without any condition or with conditions. There are no fetters on the power of the Appellate Court while exercising jurisdiction Under Section 389 Code of Criminal Procedure. The Appellate Court could have suspended the sentence and fine both or could have directed for deposit of fine or part of fine."
Therefore, there cannot be any quarrel with respect to Crl.A.No.1222 of 2024 & conn. cases
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the power of an Appellate Court to direct deposit of fine amount or part thereof.
13. With this, I will now address the arguments of Sri.John S.Ralph - on behalf of accused no.4 - where the learned counsel would canvass that the Appellate Court has no power to direct deposit of fine amount, while suspending the sentence. The argument is rooted on Section 357(2) of the Code. According to the learned counsel, Section 357(2) constitutes an absolute embargo in directing payment/deposit of fine to be made before the decision of the appeal. Learned counsel would contend that, if fine is imposed in a case which is subject to appeal, no payment is liable to be made, if an appeal is presented, before the decision of the appeal. Learned counsel also invited the attention of this Court to Section 63 of the Indian Penal Code, to point out that, even in cases where an outer limit as regards fine is not prescribed by the Statute, still the amount of fine shall not be Crl.A.No.1222 of 2024 & conn. cases
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excessive. Thus, according to the learned counsel, a combined reading of Section 63 of the Penal Code, along with Section 357 of the Code would leave no doubt that a fine cannot be directed to be made as a pre-condition for suspension of sentence; and at any rate, the amount, if any directed to be deposited, cannot be excessive. Learned counsel would also rely on Section 357(1)(a) to (d), to point out that, the fine to be imposed by a court of law should be based on the guidelines available in clauses (a) to (d). On facts, learned counsel urged that, the total loss assessed as per the prosecution case is only Rs.98 lakhs, whereas, the total fine imposed in these 39 Calendar Cases is to the tune of Rs.12 crores, which is grossly excessive.
14. In answer to the above contention, learned Special Public Prosecutor, Sri. Rajesh A., would submit that, reliance placed on Section 357 Cr.P.C. is completely misconceived, for, Section 357 deals with Crl.A.No.1222 of 2024 & conn. cases
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compensation; and not fine. According to the learned counsel, the guidelines contained in clauses (a) to
(d) to Section 357(1) is for the purpose of grant of compensation, from out of the fine amount awarded, which does not limit or fetter in any manner the Court's power to order an appropriate sentence of fine, subject however to statutory prescriptions. Learned Special Public Prosecutor would also submit that, Section 357(2) does not apply at all in the context of directing deposit of the whole or part of the fine amount, as a pre-condition to suspend the sentence. Learned Special Public Prosecutor would also submit that, Section 63 speaks of a situation where the fine amount is not specified by the Statute, in which case, the liability of the offender is unlimited, but shall not be excessive. Section 63 also has no application in the present context, is the submission made. Here also, Satyendra Kumar Mehra (supra) was relied upon, wherein it was held in paragraph no.30 that, Section 357(2) Cr.P.C. is not Crl.A.No.1222 of 2024 & conn. cases
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attracted in a case where there is no direction to pay any compensation, out of the fine imposed.
15. In reply, Sri.John S. Ralph would submit that, although the heading of Section 357 speaks of payment of compensation, the body of the Section deals with payment of fine, except in cases covered by Section 357(3). It was also submitted that, protection under Section 357(2) is not available in a case governed by Section 357(3).
16. Having heard the learned counsel on the question of application of Section 357, as also, the embargo, if any, under Section 357(2), this Court can only endorse the submissions made by the learned Special Public Prosecutor. Section 357 of the Cr.P.C. is extracted here below:
"357. Order to pay compensation.-(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment order the Crl.A.No.1222 of 2024 & conn. cases
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whole or any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
Crl.A.No.1222 of 2024 & conn. cases
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(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or if an appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) xxxx (5) xxxx"
17. Section 357(1) deals with two situations. The first is a case where the Court imposes a sentence of fine simplicitor; and the second, a case where fine forms part of the sentence, which includes even a sentence of death. In both these cases, the Court may order that the whole or any part of the fine recovered may be applied for the purposes specified in clause
(a) to (d) to Section 357(1), of which clause (b) specifically deals with payment of compensation to any Crl.A.No.1222 of 2024 & conn. cases
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person, who had suffered a loss or injury as a result of the offence.
18. Section 357(2) prescribes that, if fine is imposed in a case, which is subject to appeal and if an appeal is presented, no such payment shall be made before the decision of the appeal. The issue depends upon the interpretation of the expression "such payment". Does Section 357(2) mean the payment of fine? Or it means the payment of compensation as envisaged in Section 357(1)? The obvious answer which occurs in the mind of this Court is the latter, that is to say, the payment of compensation, as provided in Section 357(1). Much turns on the expression "such". Section 357(2) appears after Section 357(1), which provides for appropriation of fine amount imposed for payment of compensation as specified in clauses (a) to
(d) of Section 357(1), which includes defraying expenses incurred for prosecution, payment of compensation for any loss or injury caused to a person Crl.A.No.1222 of 2024 & conn. cases
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as a result of the offence, etc. It is "such payment", thereby meaning the payment referred to in Section 357, which is covered by Section 357(2). In other words, Section 357(2) carves out an embargo in the matter of payment of compensation under Section 357(1). Where fine is imposed in a case which is subject to appeal, and appeal in fact was presented, the embargo in making such payment will continue until a decision is taken in the appeal. Section 357(2) has nothing to do with the present question of the court's power to direct deposit of the fine amount, as a condition for allowing suspension of sentence. The issue has been squarely covered by the Hon'ble Supreme Court in Satyendra Kumar Mehra (supra). In paragraph no.30, the Hon'ble Supreme Court found that Section 357(2) Cr.P.C. is not attracted in a case, where there is no direction to pay any compensation out of the fine imposed. I, therefore, repel the contentions of Adv.John S. Ralph based on Section 357(2). Crl.A.No.1222 of 2024 & conn. cases
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19. Now, the real issue surfaces with respect to the quantum, wherein, the dictum laid down in Guddan @ Roop Narayan (supra) assumes significance. In paragraph no.14 of the judgment, the Hon'ble Supreme Court expressed, in unmistakable terms, its disapproval to the excessive conditions being imposed by the High Court. Paragraph nos. 15 & 16 are relevant and the same are extracted here below:
"15. While bail has been granted to the Appellant, the excessive conditions imposed have, in-fact, in practical manifestation, acted as a refusal to the grant of bail. If the Appellant had paid the required amount, it would have been a different matter. However, the fact that the Appellant was not able to pay the amount, and in default thereof is still languishing in jail, is sufficient indication that he was not able to make up the amount.
16. As has been stated in the Sandeep Jain case (supra), the conditions of bail cannot be so onerous that their existence itself tantamounts to refusal of bail. In the present case, however, the excessive conditions herein have precisely become that, an antithesis to the grant of bail."
Crl.A.No.1222 of 2024 & conn. cases
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20. Therefore, the question is what could be the reasonable amount, which can be directed to be deposited as fine in the given facts. This Court notice that in all these cases disposed of by virtue of a common judgment, the accused persons are directed to pay a total sum of Rs.6,00,000/- (under various offences) towards fine, besides substantive term of imprisonment. Even a portion of the fine amount, if directed to be deposited, would turn onerous, inasmuch as accused nos. 1 and 2 herein are common in all the 39 Calender Cases. In addition to that, the contentions raised by the various counsel on facts, especially with respect to the earnest money/security amount being retained by the Government, non disbursal of a portion of the bill amount to the contractors, disbursal of the amount subject to bank guarantee and most importantly, the contention of Sri.John S.Ralph, learned counsel for the 4th respondent that as against the total loss assessed by the prosecution to the tune of Rs.1 crore, a hefty sum of Rs.12 crores is imposed Crl.A.No.1222 of 2024 & conn. cases
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as fine, are to be borne in mind while arriving at a reasonable fine amount to be directed for deposit.
21. Considering all the above referred aspects, as also, the legal position expatiated above, this Court is of the opinion that it would be reasonable to direct all the accused persons to deposit Rs.10,000/- (Rupees ten thousand) each, in the respective appeals preferred by them. The appellants in each of their appeal shall deposit a sum of Rs.10,000/- each, being part of the fine imposed, as a pre-condition to suspend the order of sentence. This Court specifically notice that, there are as many as 175 appeals listed today and five others which have already been admitted and sentence suspended. Rs.10,000/- each by every appellant would take care of the interests of the prosecution and the State, since the total amount directed to be deposited will be more than Rs.1.8 crores.
Crl.A.No.1222 of 2024 & conn. cases
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22. Accordingly, the execution of the sentence in all these appeals will stand suspended on the following conditions:
(i) The petitioners/appellants shall execute a bond of Rs.1,00,000/- (Rupees One lakh only), with two solvent sureties, each for the like sum to the satisfaction of the Trial Court.
(ii) The petitioners/appellants shall deposit a sum of Rs.10,000/-(Rupees Ten thousand only) each, being part of the fine imposed, in each of the appeals preferred by them, in the Trial Court within a period of two months from today.
23. For the reasons afore-referred, this Court also choose to modify the conditions already incorporated in Crl.Appeal nos.1100, 1169, 1178, 1179, 1184 and 1187 of 2024 which have already been admitted and Crl.A.No.1222 of 2024 & conn. cases
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sentence suspended based on more onerous conditions. Necessary application for modification of the conditions have already been preferred by the respective appellants. Such applications, will stand allowed; and the above conditions directed in this common order will govern the appellant in Crl.A.1100 of 2024, as also, the appellants in Criminal Appeal Nos. 1169, 1178, 1179, 1184 and 1187 of 2024. The orders dated 03.07.2024 and 12.07.2024 will stand modified to that extent.
Sd/-
C.JAYACHANDRAN,JUDGE SKP 16-08-2024 /True Copy/ Assistant Registrar