C.S. Balaji v. The State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.04.2010CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCrl.A.Nos.436 and 766 of 2008C.S.Balaji...Appellant/Accused-3 in Crl.A.No.436 of 2003Abdul Karim Telgialias Lala aliasBig Boss ..Appellant./accused-1 in Crl.A.No.766 of 2008versusThe Staterepresented by the Inspector of PoliceCentral Bureau of Investigation, EOU, VII,New Delhi. ... RespondentCriminal Appeals filed against the conviction and sentencepassed by the learned Additional Special Court for CBI Cases,Chennai, made in C.C.No.1 of 2008 (split from C.C.No.35 of 2005).For Appellants : Mr.Shanmughavelayutham Senior Counsel for Mr.C.S.PillaiFor Respondent : Mr.N.Chandrasekar Special Public Prosecutor for CBI Cases.JUDGMENTThe learned counsel for the appellant in Crl.A.No.766 of 2008and the appellant in Crl.A.No.436 of 2008 are the accused 1 and 3respectively in C.C.No.1 of 2008, on the file of the AdditionalSpecial Judge for CBI Cases, Chennai. Both the accused havepleaded guilty before the trial Court and on the basis of that pleaof guilt, the trial Court convicted and sentenced them as follows:I)The first accused Abdul Karim Telgi alias Lala alias KarimLala alias Big boss is convicted under Section 255 IPC andsentenced to undergo rigorous imprisonment for a period of Tenyears and imposed a fine amount of Rs.1 Crore and in default ofpayment of fine to unergo imprisonment for a period of one year. https://hcservices.ecourts.gov.in/hcservices/ Also Convicted under Section 258 IPC and sentenced to undergoimprisonment for a period of two years and imposed a fine amount ofRs.1 Crore and in default of payment of fine to undergoimprisonment for a period of one year. Also Convicted under Section 420 IPC and sentenced to undergoimprisonment for a period of two years and imposed a fine amount ofRs.1 Crore in default to undergo imprisonment for a period of oneyear.All the above sentence of imprisonment to run concurrently.The total period of imprisonment in default of payment of fine is 3years.II) The third accused, C.S.Balaji is convicted under Section255 IPC and sentenced to undergo imprisonment for a period of twoyears and imposed a fine amount of Rs.75,00,000/- and in default ofpayment of fine to undergo imprisonment for a period of ninemonths.Also Convicted under Section 258 IPC and sentenced to undergorigorous imprisonment for a period of five years and imposed a fineamount of Rs.75,00,000/- and in default of payment of fine toundergo imprisonment for a period of nine months.Also Convicted under Section 420 IPC and sentenced to undergoimprisonment for a period of two years and imposed a fine amount ofRs.50,00,000/- and in default of payment of fine to undergoimprisonment for a period of six months.All the above sentence of imprisonment to run concurrently.Total imprisonment in default of payment of fine is two years. 2. Mr.Shanmughavelayutham, learned Senior Counsel appearingfor the appellants in both cases submitted that though theappellants pleaded guilty, with regard to the several charges, asfar as the charge under Section 255 IPC is concerned, there is nomaterial to frame such charge and the trial Court has erroneouslyframed charge. The first charge against the accused wascounterfeiting adhesive and non-adhesive stamps. But according tothe prosecution counterfeiting was carried only at Pune andthereafter only the stamp papers were distributed, sold and offeredfor sale at various places.3. The learned Senior Counsel further submitted that withregard to the counterfeiting of adhesive and non-adhesive stamps, acase was filed against the first accused Telgi by CBI in SpecialCase No.2 of 2003 before the Special Judge, Pune. In the saidcase, the first accused has already pleaded guilty and on that https://hcservices.ecourts.gov.in/hcservices/ basis judgment was also delivered on 26.08.2007, convicting him forvarious offences including for the offence under Section 255 IPC.For the offence under Section 255 IPC he was sentenced to undergoten years rigorous imprisonment and to pay a fine of Rs.50 lakhs.Having been convicted already under Section 255 IPC, forcounterfeiting the stamp papers which were prepared at Pun, onceagain convicting the accused for the same offence would amount toautrefois convict. Even otherwise as per the materials placedbefore the Court in this case, there is no material to show thatcounterfeit of stamp papers was carried out in Chennai. Even asper the statement of the approver, Sairabanu that the first accusedAbdul kareem used to send the fake stamp papers through courier orthrough messenger from Mumbai. There is no witness to the effector there is no material to show that counterfeiting fake stamppapers were prepared at Chennai.4. The learned Senior Counsel relied on the decision of thisHonourable High Court reported in a) AIR 1954 Madras 1020 (In reU.R.Ramaswami) b)AIR 1965 Madhya Pradesh 711 (State of MadyaPradesh vs. Mustaq Hussain Azad, and c)1978 Crl.L.J 1379 (PushpaKumar Rrai vs. State of Sikkim).5. Relying on these decisions, learned Senior Counselsubmitted that even if the accused pleaded guilt if the chargesframed against him are not maintainable, then there is no bar tochallenge such conviction in the appeal.6. The learned Special Public Prosecutor was also heard.7. The learned Special Public Prosecutor submitted that thefirst accused is the main accused and he has got cases in severalplaces in India and he indulged in preparing fake stamp papers andthey were distributed in several places in India and huge quantityof stamp papers were also recovered in this case and other cases.8. This Court considered the submissions made by both partiesand perused the records. On the facts available in this case, thefirst accused Telgi monitored the activities regarding the settingup of office at Delhi to Mumbai with the associates and indulged inillegal business of fake counterfeiting stamps. At the instance ofthe first accused, a firm in the name of Mrs.Sagayam Enterpriseswas established at Chennai for dealing in exclusive preparation ofcounterfeit stamps. The co accused Abdul Kareem and the thirdaccused who are the appellants herein shifted the office toPurasaiwalkam High Road, Kellis, and they indulged in the illegalbusiness of selling counterfeit stamps. Both the appellants areconvicted under Section 255, 258 and 420 IPC. With regard to theconviction and sentence under Section 258 and 420 IPC, theappellants are not challenging them. As far as the conviction andsentence under Section 255 IPC, the process of counterfeiting the https://hcservices.ecourts.gov.in/hcservices/ stamp papers was not carried out in Chennai. The prosecution isalso unable to show that the process of counterfeiting the stamppapers was carried out by the accused at Chennai. The chargeframed by the Court against the appellants is that "the accused inpursuance of the criminal conspiracy in the course of sametransaction between 1994 – 2002 engaged in counterfeiting atMumbai, Chennai and other places and taking part in the process ofadhesive and non-adhesive stamps of various denominations, nonjudicial stamps and stamp papers, Insurance Policy stamps issued bythe Government of India to collect/obtain revenue under the law andthereby committed an offence punishable under Section 255 IPC." Tosubstantiate this charge, according to the prosecution, the processof counterfeiting was carried out at Pune in Mumbai. There is nomaterial to show the counterfeit was carried out in Chennai. Thepoint for consideration is that "as there is no material to showthat the process of counterfeiting was carried out at Chennai,whether the conviction on the appellants under Section 255 IPCcould be sustained even though they pleaded guilt for the chargesunder Section 255 IPC."9. In the decision of this High Court reported in AIR 1954Madras 1020(In Re U.R.Ramaswamy), it is held as follows:"This shows that unless the facts disclosedamount to an offence, the plea of guilty is no bar toan appeal. The above decisions are clear authorityfor the position that though ordinarily on a plea ofguilty there is a bar under S.412 for an appeal exceptas to the facts do not amount to an offence, the pleaof guilty is no bar for an appeal on merits and isdoes not stand in the way of the accused beingacquitted."10. In the decision reported in 1965(1) CRL.L.J 711 (State ofM.P. vs. Mustaq Hussain Azad and others), it has been held asfollows:"We are, therefore, of the opinion that on thefacts stated in the Challan, and in the particulars ofoffence put to the accused, the offence under Section 19(5) of the Madhya Pradesh Public Security Act was notconstituted and, therefore, in spite of their plea ofguilty, the accused could not be convicted of the saidoffence."11. In the decision reported in 1978 Crl.L.J 1379 (Puspa KumarRai vs. State of Sikkim), it has been held as follows:"Under Section 412 of the Cr.P.C.1898, where anaccused person has pleaded guilty and has been convictedon such plea by any Court or Magistrate, other than aMagistrate of the Second Class or the Third Class, thereshall be no appeal except as to the extent or legality https://hcservices.ecourts.gov.in/hcservices/ of the sentence. But it is by now well-settled thatthough ordinarily in the case of a conviction on a pleaof guilty there is a bar under Section 412 of theCr.P.C. 1898, for an appeal except as to the extent orlegality of the sentence, still if the facts alleged ordisclosed do not amount to the offence for which acharge has been framed, a plea of guilty to such acharge is no bar for an appeal on merits and will notstand in the way of the accused being acquitted.Reference in this connection may be made to the decisionof the Madras High Court in In re. U.R.RamaswamiMANU/TN/0437/1954, AIR 1954 Mad 1020 and also to theDivision Bench decision of the Madhya Pradesh High Courtin State of Madhya Pradesh v. Mustaq HussainMANU/MP/0037/1965, AIR 1965 MP 137, 1965 Cri.L.J 711where the said Madras decision has been relied on.Therefore, the question as to whether there weresufficient materials on record to justify the framing ofthe charge to which the accused-appellant appears tohave pleaded guilty, is of great importance in thiscase."12. Section 375 Cr.P.C is as follows:"375. No appeal in certain cases when accused pleads guilty. Notwithstanding anything maintained in section 374, wherean accused person has pleaded guilty and has been convictedon such plea, there shall be no appeal.(a) If the conviction is by a High Court; or(b) If the conviction is by a Court of Session,Metropolitan Magistrate or Magistrate of the firstor second class, except as to the extent orlegality of the sentence."13. In view of the ratio laid down in the cases cited supra,this Court is of the considered view that if the facts do notconstitute an offence, but the charge is framed, the accused pleadsguilty and convicted on such plea, such conviction is challengeablein appeal and Section 375 Cr.P.C does not stand as a bar, on theother hand it permits an appeal when the legality of the sentenceis challenged.14. The first accused had already been convicted and sentencedfor an offence under Section 255 IPC by a Special Court, Pune forcounterfeiting stamp papers at Pune. For the same offence https://hcservices.ecourts.gov.in/hcservices/ conviction once again by another court is not permissible and it isillegal as per Section 300(1) Cr.P.C;"300. Person once convicted or acquitted not to be tried for same offence.(1) A person who has once been tried by a court ofcompetent jurisdiction for an offence and convicted oracquitted of such offence shall, while such conviction oracquittal remains in force, not be liable to be tried againfor the same offence, nor on the same facts for any otheroffence for which a different charge from the one madeagainst him might have been made under sub-section (1) ofsection 221, or for which he might have been convictedunder subsection (2) thereof."15. In the result, the conviction and sentence imposed for theoffence under Section 255 IPC on the accused 1 and 3, who areappellants in Crl.A.No.436 of 2008 and Crl.A.No.766 of 2008 are setaside. The conviction and sentence imposed by the trial Court onthe appellants with regard to other charges remain intact. Boththe appeals are partly allowed.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarksrTo1. Additional Special Judge for CBI Cases,Chennai.2. The Public Prosecutor, High Court, Madras.3.The Inspector of PoliceCentral Burueau of InvestigationE.O.U, VII, New Delhi.4.The Superintendent, Central Prison, Bangalore.5.The Section Officer, Criminal Section, High Court, Madras.Crl.A.No.436 of 2008 and Crl.A.No.766 of 2008BV(CO)EM/20.4.10