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Andhra High Court · body

2005 DIGILAW 1225 (AP)

P. Jayaprasada Raja v. V. Ranga Rao

2005-12-26

ELIPE DHARMA RAO

body2005
( 1 ) AGGRIEVED of the order, dated 1-9-2005, passed in Crl. M. P. No. 1046 of 2005 in Crl. Appeal No. 223 of 2005 on the file of the Court of the Metropolitan sessions Judge, Hyderabad, this criminal revision is filed by the revision-petitioner herein, who is the accused therein. ( 2 ) THE case of the revision-petitioner is as follows: ( 3 ) THE petitioner was convicted by the special Judge, Economic Offences, Hyderabad in C. C. No. 77 of 2003 for an offence under section 628 of Companies Act and imposed sentence of simple imprisonment for three months and fine of Rs. 1,000/- in default to undergo simple imprisonment for one month and that the sentence imposed by the Court below was also suspended by that Court till 29-8-2005. Thereafter, the same was extended till 7-9-2005 and that the petitioner filed an appeal on 22-8-2005 and the same was numbered on the same day and the present application was posted to 25-8-2005 and on that day the petitioner s Counsel requested for time and the same was posted to 29-8-2005 and that again on that day the petitioner s Counsel has sought for time and the matter was adjourned to 31-8-2005 and that on 31-8-2005 the petitioner s Counsel has filed a memo stating that the suspension of sentence was extended by the lower court till 6-9-2005. ( 4 ) ON consideration of the facts and circumstances of the case, the learned metropolitan Sessions Judge, Hyderabad allowed the petition and the sentence imposed by the lower Court is suspended and the petitioner was released on bail on his executing a bond for Rs. 5,000/- with two sureties for like sum each to the satisfaction of the lower Court. Questioning the same, the revision petitioner filed this revision. ( 5 ) SRI T. Bali Reddy, Senior Counsel representing Sri V. V. Lakshminarayana the learned Counsel for the revision petitioner submitted that when a matter arises under the Companies Act, if the conviction recorded by the trial Court disclosing him to continue as member of the society of the Committee and the Court is empowered to come to the risk of the accused and suspend the conviction. Therefore, the learned Sessions Judge has committed illegality in dismissing the application on flimsy grounds. Therefore, the learned Sessions Judge has committed illegality in dismissing the application on flimsy grounds. Moreover, the Court below failed to see that in respect of the affairs of M/s Anupama Homes Private Limited this Court was pleased to issue directions to the complainant and the petitioner in c. R. P. Nos. 5768, 5792, 6756 of 2003 and c. R. P. No. 1481 of 2005 that having regard to the nature of the activity undertaken by the company, the affairs of the Company should be run and conducted with the participation of the complainant and the petitioner, as regards of holding of meetings attending to certain flats, which were already sold by the petitioner subject to the outcome of the result of O. S. No. 696 of 2003 on the file of the Court of I-Senior Civil judge, City Civil Court, Hyderabad and (XS. No. 194 of 2003 on the file of Principle junior Civil Judge, West and South, Ranga reddy District, which were directed to be fried together and dispose of within two months from the date of receipt of the orders by the said two Courts, it is fundamental that order passed on the civil side are binding on the criminal Courts. ( 6 ) IN view of the above, the metropolitan Sessions Judge failed to see that the judgment of conviction was based on incompatible reason and surmises which is liable to set aside by the Court of appeal. In support of his contention, he relied on a judgment in Rama Narang v. Ramesh Narang, (1995) 2 SCC 513 , wherein their Lordships of the Supreme Court in para-19 categorically held while considering section 389 (1) of the Code which reads as follows-"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 see 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. 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 see 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 under section 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. "finally it was observed that:"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 person 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. " ( 7 ) IN view of the above observations of the Hon ble Supreme Court, the learned senior Counsel appearing on behalf of the petitioner submitted that in view of the observations of the Supreme Court if the conviction is not suspended the petitioner will suffer irreparable loss and may lead to his disqualification to continue as member of the society and cause colossal loss. ( 8 ) ON the other hand, Mr. C. Praveen Kumar, the learned Counsel appearing for the first respondent relied on a judgment in State of Tamil Nadu v. A. Jaganathan, 1996 (2) ALD (Crl.) 358 (SC ). This case arises under Sections 389 (1) and 482 of the Crl. P. C. with regard to the suspension of the conviction pending appeal or revision, wherein it was held that"that being so the facts of the decision relied on have no application to the present case. This case arises under Sections 389 (1) and 482 of the Crl. P. C. with regard to the suspension of the conviction pending appeal or revision, wherein it was held that"that being so the facts of the decision relied on have no application to the present case. This apart, the High Court though made an observation but did not consider at all the moral conduct of the respondents inasmuch as respondent Jaganathan who was the Police Inspector attached to Erode police Station has been convicted under sections 392, 218 and 466 IPC, while the other respondents who are also public servants have been convicted under the provision of Prevention of Corruption Act. In such a case the discretionary power to suspend the conviction either under section 389 (1) or under Section 482 Cr. P. C. should not have been exercised. " ( 9 ) HE also placed reliance on another decision in K. C. Sareen v. CBI, Chandigarh, 2001 (2) ALD (Crl.) 398 (SC ). This case arises for consideration of Section 389 (1) cr. P. C. wherein it was held that,"though the power to suspend an order of conviction apart from the order of sentence, is not alien to Section 389 (1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction of the Court should not suspend the operation of the order of conviction. Merely because the convicted person files an appeal in challenge of the conviction the Court should not suspend the operation of the order of conviction. The Court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that the Court has to examine the question as to what should be the position when a public servant is convicted of an offence under the P. C. Act. No doubt when the appellate Court admits the appeal filed by challenge of the conviction and sentence for the offence under the PC Act, the superior Court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act de hors the sentence of imprisonment as a sequel thereto, is a different matter. " ( 10 ) IN view of the above judgment of the Supreme Court, the learned Counsel for the first respondent submitted that taking into account of the conduct of the accused, the learned Metropolitan Sessions Judge has refused to grant suspension of sentence in the interest of justice. Therefore, the order is sustainable in law and no interference is needed by this Court. ( 11 ) ON the other hand Mr. Mohammed osman Shaheed, the learned Additional public Prosecutor relying on the judgment of the Supreme Court in Deputy Director of Collegiate Education (Administration) madras v. S. Nagoor Meera, AIR 1995 sc 1364 , wherein their Lordships of the apex Court held that:"section 389 of the Code of Criminal procedure, 1973, empowers the appellate court to order that pending the appeal 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. " Section 389 (1), it may be noted, speaks of suspending "the execution of the sentence or order", it does not expressly speak of suspension of conviction. Even so, it may be possible to say that in certain situations, the appellate Court may also have the power to suspend the conviction. " ( 12 ) CONSIDERING the facts am circumstances of the case and considering the conduct of the accused, it appears that though after passing the order of conviction by the Special Judge for Economic Offences, hyderabad, only sentence alone was suspended for a particular period and thereafter the present appeal was preferred which was numbered as Crl. A. No. 222 of 2005, to suspend the conviction and sentence listed on 25-8-2005, the petitioner instead of proceeding the matter, sought adjournment of the case and again approached the learned Special Judge for Economic offences, Hyderabad and obtained further extension of suspension upto 6-9-2005 and the matter was listed to 31-8-2005, wherein he reported the extension of suspension and conviction till 6-9-2005. Therefore, on considering the above said conduct of the petitioner, the learned Sessions Judge has rightly observed that when once the appellate court has seized of the matter and granting interlocutory order is on consideration. Therefore, on considering the above said conduct of the petitioner, the learned Sessions Judge has rightly observed that when once the appellate court has seized of the matter and granting interlocutory order is on consideration. Therefore, the accused should not have gone to the original Court and obtain the extension of suspension order by taking adjournment before the appellate Court. There is nothing on record to show that it was brought to the notice of Court below with regard to filing of appeal before the appellate Court. Therefore, the Court is right in dismissing the petition. Therefore, after taking into consideration, catena of decisions relied on by both the learned Counsel, I am satisfies that ultimately it is for the satisfaction of cither the trial Court or Revisional Court under Section 389 (1) of Cr. P. C. to suspend the order of conviction or sentence even though the matter arises under Section 628 of the Companies Act. Therefore, I am satisfied that the reasons assigned by the appellate Court in refusing to entertain the petition is valid and bona fide and the order impugned is sustainable under law. Evidently, the petitioner, after pronouncement of the judgment, to avoid incarcerations in terms of the conviction and sentence recorded by the court below, adopted illegal tactics to continue on bail apprehending that the appellate Court may not grant bail upto the date of entertaining appeal filed against the judgment of the learned Special Judge, economic Offences, Hyderabad in C. C. No. 76 of 2003 and make believe the learned special Judge that he is filing appeal and sought suspension of the sentence awarded by the Court below. Had the petitioner apprised the Special Judge that he filed an appeal against the judgment and that the bail application is listed for consideration, the learned Special Judge would not have extended the suspension of the sentence. This attitude of the petitioner has to be viewed seriously, at the time of disposal of the appeal by the appellate Court, to protect the sanctity and honour of the orders passed by the authorities of the institution. ( 13 ) AFTER considering the request made by Sri T. Bali Reddy, the learned Senior counsel, I deem it appropriate to direct the appellate Court to dispose of the main appeal i. e. Crl. ( 13 ) AFTER considering the request made by Sri T. Bali Reddy, the learned Senior counsel, I deem it appropriate to direct the appellate Court to dispose of the main appeal i. e. Crl. A. No. 223 of 2005 within three months from the date of receipt of a copy of this order. In the result, the criminal revision case is accordingly dismissed.