N. RAMAMURTHY versus STATE BY CENTRAL BUREAU OF INVESTIGATION, A.C.B., BENGALURU on 26 April 2019

1. Leave granted.

2. In these appeals, the appellant-accused has called in questionthe orders dated 03.01.2019 and 29.01.2019 passed by the High Courtof Karnataka at Bengaluru in IA Nos. 1 of 2018 and 1 of 2019 in CriminalAppeal No. 2000 of 2018 whereby, the High Court has rejected hisprayer under Section 389 of the Code of Criminal Procedure (‘CrPC’)for suspension of execution of sentence during the pendency of appeal.

3. The background aspects, so far relevant for the present purpose,could be noticed, in brief, as follows:

3.1. The appellant herein was tried as Accused No. 2 in SpecialCriminal Case No. 12 of 2002 for the offences under Section 120-Bread with Sections 409, 420, 468, 471, 477-A of the Indian Penal Code(‘IPC’) and Section 13(2) read with Sections 13(1)(c) and (d) of thePrevention of Corruption Act, 1988 (‘PC Act’).

3.2. The prosecution case had been that during the years 1995-96, the appellant and the Accused No. 1, who were respectively workingas clerk and manager in the State Bank of Mysore, entered into a criminalconspiracy and committed several acts of breach of trust, cheating,forgery, falsification of accounts and misappropriation of funds. It was,inter alia, alleged that the accused persons raised fraudulent debits tothe extent of Rs. 23,53,090/- in various accounts maintained by thecustomers in the bank like Savings Bank Account, Current Account,Term Deposit, Reinvestment Deposit etc; and the amount so debitedwas fraudulently credited to the personal accounts of the appellant andwas obtained by forging the withdrawals. It was also alleged that duringthe year 1996, both the accused persons fraudulently added a fictitiousname K. Prabhakara to Savings Bank Account No. 1400 existing in thename of R. Madhusudana, though the specimen signatures of K.Prabhakara were not available in the bank; fraudulent credits were postedin the said Savings Bank Account No. 1400 to the tune of Rs. 9,46,399/-; and subsequently, the appellant made withdrawals on different datesfrom the said account by forging the signatures of K. Prabhakara. Itwas also alleged that the Accused No. 1 permitted several temporaryOverdrafts for substantial amounts in different Current Accounts in A

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Aexcess of his powers and suppressed these facts from the controller;and that such accounts were closed after misappropriation of funds.

3.3. In view of the short question involved in these appeals, all thefactual aspects of the case need not be elaborated herein. Suffice wouldbe to notice for the present purpose that during the trial, Accused No. 1Bexpired and the matter stood abated qua him. However, after due trialin Special Case No. 12 of 2002, the Court of XLVI Additional City Civiland Sessions Judge and Special Judge for C.B.I. Cases, by its judgmentdated 22.10. 2018, convicted the appellant for the offences aforesaidwhile holding that he had forged the signatures of many customers, hadcreated withdrawal slips with dishonest intention, and had misappropriatedCthe amount of various depositors from their accounts. The Trial Courtproceeded to award the sentence/s to the appellant as follows[1]:

“The accused No. 2 for the offence under Section 120BIPC shall undergo rigorous imprisonment of seven years andpay fine of Rs. 50,000/-, in default to pay the fine amount,Dshall further undergo simple imprisonment for one year.

The accused No. 2 for the offence under Section 420IPC shall undergo rigorous imprisonment of seven years andpay fine of Rs. 50,000/-, in default to pay the fine amount,shall further undergo simple imprisonment for one year.E

The accused No. 2 for the offence under Section 409IPC shall undergo rigorous imprisonment of seven years andpay fine of Rs. 50,000/-, in default to pay the fine amount,shall further undergo simple imprisonment for one year.

The accused No. 2 for the offence under Section 468IPC shall undergo rigorous imprisonment of seven years andpay fine of Rs. 50,000/-, in default to pay the fine amount,shall further undergo simple imprisonment for one year.

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The accused No. 2 for the offence under Section 471IPC shall undergo rigorous imprisonment of three years andGpay fine of Rs. 25,000/-, in default to pay the fine amount,shall further undergo simple imprisonment for six months.

The accused No. 2 for the offence under Section 477AIPC shall undergo rigorous imprisonment of seven years and H1 Extraction from pp. 270-272 of the SLP paper-book

pay fine of Rs. 50,000/-, in default to pay the fine amount,shall further undergo simple imprisonment for one year.

The accused No. 2 for the offence under Section 13(2) r/w.13(1) (c) & (d) of Prevention of Corruption Act, 1988 shallundergo rigorous imprisonment of seven years and pay fineof Rs. 50,000/-, in default to pay the fine amount, shall furtherundergo simple imprisonment for one year.

All the sentences shall run concurrently.

Accused No. 2 is entitled for set off u/S. 428 of CriminalProcedure Code, for the period already undergone in JudicialCustody, if any.”

3.4. Aggrieved by the judgment and order aforesaid, the appellantpreferred an appeal, being Criminal Appeal No. 2000 of 2018, beforethe High Court of Karnataka at Bengaluru. The said appeal has beenadmitted for hearing by the High Court. The appellant also moved anapplication seeking suspension of execution of sentence (IA No. 1 of2018) that was considered and dismissed by the High Court on 03.01.2019while observing, inter alia, that “the sentence of imprisonment all puttogether comes to 45 years of rigorous imprisonment (for all theproven guilt put together)”. While rejecting the contentions urged onbehalf of the appellant, the High Court observed that the evidence pointedtowards the guilt of the appellant; that non-examination of hand-writingexpert was not a convincing ground for seeking suspension when otherevidence and material were available on record; that looking to the natureof the offence alleged, designation of the appellant, whether as clerk orin any other capacity, was immaterial; that when the appellant was 66years of age, many age-related ailments were natural but it was incorrectto say that while serving the sentence, he was deprived of proper medicalcare. The High Court also referred to the decision of this Court in thecase of Navjot Singh Sidhu vs. State of Punjab: (2007) 2 SCC 574and observed that the Appellate Court could suspend the order ofconviction only when the convict specifically shows the consequencesthat may follow if the order is not suspended or stayed; and the presentone was not a fit case for suspension of sentence and enlargement ofthe accused on bail.

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3.4.1. The relevant observations of the High Court in its orderdated 03.01.2019 could be noticed as under[2]:- “1.The accused No. 2 – N. Ramamurthy has filed thisappeal challenging the judgment of conviction and order ofsentence dated 22.10.2018 passed by learned XLVI AdditionalCity Civil and Session Judge and Special Judge for CBI cases,Bengaluru in Special Criminal Case No. 12/2002, whereinthe present appellant/accused No. 2 has been convicted forthe offence punishable under Section 120-B r/w Sections 420,409, 468, 471, 477-A of IPC and under Section 13(2) r/wSections 13(1)(c) and (d) of Prevention of Corruption Act,1988 and sentenced accordingly. The Special Court hasordered separate sentence of imprisonment and fine in eachof the offences for which appellant/accused No. 2 was foundguilty. The sentence of imprisonment all put together comesto 45 years of rigorous imprisonment (for all the proven guiltput together).

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14. Considering the said alleged voluntary act of theaccused and various other circumstances, the trial Courtappears to have arrived at a conclusion holding that theaccused is guilty of the alleged offences. In view of the saidfact that the accused has been found guilty of the offences,more particularly, of those punishable under Sections 420,409, 468, 471 and 477A of IPC and also under Section 13(2)r/w Section 13(1)(c) and (d) of the Prevention of CorruptionAct, 1988, I do not find that non-examination of the handwriting expert would be a convincing ground for seekingsuspension of sentence of the appellant.

15. The second phase of argument of the learned counselfor the appellant is that the accused being only a Clerk, hadno power to prematurely close the deposits and close theaccount. A cursory look of the same, go to show that accusednowhere says that in his capacity as a Clerk he has closedseveral accounts. On the contrary, offence alleged againsthim is forging the signatures of the customers and making the 2 Extraction from pp. 1 and 5-7 of the SLP paper-book Bank to credit the deposits proceeds to his account. Thus, thedesignation of the accused whether as a Clerk or discharginghis working in any other capacity would become immaterialin this context. As such, the argument of learned counsel forthe appellant on that ground is also not acceptable.

16. Lastly, it is also the contention of the appellant that theaccused No. 2/appellant is suffering from several healthrelated ailment and diseases haemorrhage and is underconstant medication.

Admittedly, the age of the appellant/accused No. 2 is said tobe 66 years, as such, many age related ailments are naturalto be present in many of the people. It is incorrect to say thatbecause a person is serving sentence, he is deprived of theproper medical care. As such, the health related groundscanvassed also is not acceptable.

17. Hon’ble Apex Court in the case of Navjot Singh Sidhu vsState of Punjab & Another reported in (2007) 2 SCC 574with respect to Section 389 (1) of Cr.P.C and suspension ofthe order appealed against, was pleased to observe that, theAppellate Court can suspend the order of conviction onlywhen the convict specifically shows the consequences thatmay follow, if the order is not suspended or stayed. Further,grant of stay of conviction can re resorted to the rare casesdepending upon the special facts of the case (sic).

18. In the case on hand, for the reasons given above, I do notfind that it is one such case, which deserves the suspensionof sentence and enlargement of the accused on bail.”

3.5. Thereafter, the second application seeking suspension ofexecution of sentence was moved on behalf of the appellant, being IANo. 1 of 2019, on the ground of his deteriorating health condition. Howeverthis application was also dismissed by the High Court by order dated29.01.2019 while essentially relying upon the reasons assigned fordeclining such prayer in the previous order dated 03.01.2019. The HighCourt, however, ordered that the direction of the treating doctor of theappellant may be complied with. In its order dated 29.01.2019, the High A

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ACourt again proceeded to observe that the appellant was awarded 45years of imprisonment in the following[3]:- “2. The appellant/applicant is a convicted person in the saidcase for the offences punishable under Section 120B readwith Sections 420, 409, 468, 471, 477A of Indian Penal CodeBand under Section 13(2) read with Sections 13(1)(c) and (d)of Prevention of Corruption Act, 1988, (hereinafter for brevityreferred to as ‘P.C.Act’). He was sentenced accordingly bythe Special Court. The Special Court has ordered separatesentence of imprisonment and fine for each of the offencesfor which the appellant was found guilty. The sentence ofCimprisonment all put together comes to 45 years of rigorousimprisonment (for all the proven guilt put together).”

4. Assailing the orders aforesaid, the learned counsel for theDappellant has strenuously argued that the High Court has approachedthe case from an altogether wrong angle while observing that the appellanthas been awarded 45 years of imprisonment though the sentences wereordered to run concurrently by the Trial Court and hence, the maximumperiod of imprisonment is 7 years apart from certain default stipulations,which would come in operation only if the fine is not paid. The learnedEcounsel has further argued that the reference to the decision in NavjotSingh Sidhu (supra), was also misplaced because the appellant hereinhad only prayed for suspension of sentence and not for suspension of hisconviction. According to the learned counsel, the prayer for suspensionof sentence should be considered liberally and suspension ought not beFdenied unless there are exceptional circumstances; and there being nosuch exceptional reasons or circumstances in the present case, the prayerfor suspension deserves to be granted. Per contra, the orders impugnedare duly supported on behalf of the respondent with reference to thefindings recorded against the appellant by the Trial Court.

G5. Having heard learned counsel for the parties and on perusal ofthe record, we are inclined to allow these appeals and while settingaside the orders impugned, restore the applications seeking suspensionof execution of sentence under Section 389 CrPC for considerationafresh by the High Court.

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6. We feel it imperative to restore the applications for considerationafresh for the fundamental reason that the approach of the High Courtin dealing with the applications made on behalf of the appellant underSection 389 CrPC had apparently been from a wrong angle and on twomajor misconceptions: One, that the High Court assumed as if thesentences awarded to the appellant for different offences are to runconsecutively i.e., one after another and, while taking sum total of thesentences so awarded, the High Court has proceeded as if the accusedappellant has been ordered to undergo imprisonment for a whopping 45years. No great deal of discussion is required to say that such anassumption by the High Court had been fundamentally incorrect and theHigh Court, obviously, omitted to notice that the Trial Court had specificallyordered that all the sentences shall run concurrently. Secondly, the HighCourt has proceeded to refer to the principles governing the considerationof the prayer for suspension of the operation of the order of conviction,although the prayer in the present matter had only been for suspensionof execution of sentence.

7. It is not far to seek that when the High Court assumed that theappellant is to serve 45 years in prison, its consideration of the prayer forsuspension of execution of sentence took entirely different dimensions.The applications ought to have been considered while keeping in viewthe fact that with concurrent running of sentences, the maximum periodfor imprisonment envisaged by the order of the Trial Court is 7 years. Ofcourse, there are default stipulations in the order of the Trial Court but inany case, and by any method of calculation, it cannot be said that theappellant has been ordered to serve out 45 years in prison. The length ofimprisonment to be served under an impugned order of sentencing hasobvious bearing on the consideration of the prayer for suspension ofexecution of sentence during the pendency of an appeal or revision; andwhen there had been fundamental error as regards such an over-bearingfactor, the prayer of the appellant requires reconsideration after removalof this error.

8. In both the orders impugned, the High Court, apart from theaforesaid error about the length of imprisonment to be served by theappellant, has also proceeded on entirely irrelevant consideration withreference to the principles related with the prayer for suspension of theoperation of the order of conviction that such a suspension could be A

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Agranted only in rare and exceptional cases and for special reason. Withrespect, the High Court appears to have missed out the fact that theprayer on behalf of the appellant had only been for suspension ofexecution of sentence and not for stay or suspension of the operation ofthe order of conviction. Hence, reference to the decision in Navjot SinghSiddhu (supra) had been obviously inapt on the facts and in theBcircumstances of the present case. In fact, in the other cited decision inK.C. Sareen v. CBI, Chandigarh: (2001) 6 SCC 584, this Court hasindicated that ordinarily, the superior Court should suspend the sentenceof imprisonment in the matters relating to the offence under the PC Act,unless the appeal could be heard soon after filing. This Court pointed outCthe subtle distinction in the proposition for suspension of an order ofconviction on one hand and that for suspension of sentence on the other.This Court explained and laid down as under:

“11. The legal position, therefore, is this: though the powerto suspend an order of conviction, apart from the order ofDsentence, is not alien to Section 389(1) of the Code, its exerciseshould be limited to very exceptional cases. Merely becausethe convicted person files an appeal in challenge of theconviction the court should not suspend the operation of theorder of conviction. The court has a duty to look at all aspectsincluding the ramifications of keeping such conviction inEabeyance. It is in the light of the above legal position that wehave to examine the question as to what should be the positionwhen a public servant is convicted of an offence under thePC Act. No doubt when the appellate court admits the appealfiled in challenge of the conviction and sentence for theFoffence under the PC Act, the superior court should normallysuspend the sentence of imprisonment until disposal of theappeal, because refusal thereof would render the very appealotiose unless such appeal could be heard soon after the filingof the appeal. But suspension of conviction of the offenceunder the PC Act, dehors the sentence of imprisonment as aGsequel thereto, is a different matter.”

8.1. What we find from the impugned order dated 29.01.2019 isthat, even after taking note of the principles aforesaid, the High Courthas apparently missed out the substratum and has not applied theapplicable legal principles to the case at hand.H

9. We are not elaborating on the other grounds urged on behalf ofthe appellant for suspension of execution of substantive sentence ofimprisonment, essentially for the reason that this prayer under Section389 CrPC is to be adequately examined and considered by the HighCourt with reference to the record and all the surrounding factors; and,in the present case, when consideration of such a prayer is found vitiatedfor an erroneous approach, we are of the view that the High Court needto consider the prayer afresh.

10. It goes without saying that we have neither pronounced onthe merits of the applications moved on behalf of the appellant seekingsuspension of execution of sentence nor have made any observationsrelating to the merits of the appeal pending in the High Court and theentire matter is left open for consideration of the High Court in accordancewith law.

11. Accordingly and in view of the above, these appeals are allowedto the extent and in the manner that the impugned orders dated 03.01.2019and 29.01.2019 passed respectively in disposal of IA No. 1 of 2018 andIA No. 1 of 2019 in Criminal Appeal No. 2000 of 2018 by the High Courtof Karnataka are set aside; and the said IA Nos. 1 of 2018 and 1 of 2019are restored for consideration afresh. The matter being related with theprayer for suspension of execution of sentence during the pendency ofappeal, we would request the High Court to take up and dispose of thesaid applications expeditiously, preferably within two weeks from today.

Nidhi Jain

Appeals disposed of.

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