Criminal Appeal No. 384 of 2012 · The High Court
Case Details
- 1 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL No.384 OF 2012 (C) C/W CRIMINAL APPEAL No.385 OF 2012 CRIMINAL APPEAL No.408 OF 2012 CRIMINAL APPEAL No.409 OF 2012 CRIMINAL APPEAL No.465 OF 2012 CRIMINAL APPEAL No.466 OF 2012 IN CRL.A No. 384/2012 BETWEEN: KULWANT SINGH AGED ABOUT 52 YEARS, S/O SARDAR DARSHAN SINGH R/O NO.D4, DAKSHINAKASHI APARTMENTS NO.2637, 2ND MAIN ROAD, V.V.MOHALLA, MYSORE (BY SRI S G BHAGAVAN, ADVOCATE) AND: THE STATE BY CBI SPE-BANGALORE …APPELLANT …RESPONDENT (BY SRI P PRASANNA KUMAR, ADVOCATE) THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT.26.03.2012 PASSED BY THE XXI ADDL. C.C. AND S.J. AND SPL. JUDGE FOR CBI CASES, BANGALORE IN SPL.C.C.NO.40/1996-CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 120B OF IPC. Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS IN CRL.A NO. 385/2012 BETWEEN: 1. KULWANT SINGH AGED ABOUT 52 YEARS, S/O SARDAR DARSHAN SINGH R/O NO.D4, DAKSHINAKASHI APARTMENTS NO.2637, 2ND MAIN ROAD, V.V.MOHALLA, MYSORE ...APPELLANT (BY SRI S G BHAGAVAN, ADVOCATE) AND: 1. THE STATE BY CBI SPE-BANGALORE ...RESPONDENT (BY SRI P PRASANNA KUMAR, ADVOCATE) THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT.26.03.2012 PASSED BY THE XXI ADDL. C.C. AND S.J. AND SPL. JUDGE FOR CBI CASES, BANGALORE IN SPL.C.C.NO.41/1996- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 120B OF IPC. IN CRL.A NO. 408/2012 BETWEEN: 1. G DEVI PRASAD S/O LATE K B SHETTY AGED ABOUT 57 YEARS R/O NO.E-017, STERLING BROOKS SIDE KUNDALAL HALLI, ITPL MAIN ROAD BANGALORE-560 037 (BY SRI. PRAVEEN C, ADVOCATE) ...APPELLANT - 3 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS AND: 1. THE STATE BY CBI: SPE, BANGALORE
Legal Reasoning
with this Court in the appellate jurisdiction, this court is of the considered opinion that if the imprisonment period of three months each is set-aside by enhancing the fine amount in a sum of Rs.10,000/- payable by each of the appellants in Crl.A.Nos.384/2012, 384/2012, 408/2012 and 409/2012 and, Rs.50,000/- payable by appellant in Crl.A.Nos.465/2012 and 466/2012 separately, would meet the ends of justice. Accordingly, point No.3 is answered partly in the affirmative. 45. REGARDING POINT No.4: In view of finding of this Court on point Nos.1 to 3 as above, the following:
Arguments
(BY SRI P PRASANNA KUMAR, ADVOCATE) ...RESPONDENT THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT.26.03.2012 PASSED BY THE XXI ADDL. CITY CIVIL AND S.J. AND SPL. JUDGE IN CASES, SPL.C.C.NO.125/1993-CONVICTING APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 120-B OF IPC. BANGALORE THE FOR CBI IN CRL.A NO. 409/2012 BETWEEN: G DEVI PRASAD AGED ABOUT 57 YEARS S/O LATE K.B. SHETTY R/AT NO. E-017, STERLING BROOKS SIDE, KUNDALAL HALLI, ITPL MAIN ROAD, BANGALORE – 560 037 ...APPELLANT (BY SRI. PRAVEEN C, ADVOCATE) AND: 1. THE STATE BY CBI:SPE, BANGALORE ...RESPONDENT (BY SRI P PRASANNA KUMAR, ADVOCATE) THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT.26.03.2012 PASSED BY THE XXI ADDL. CITY CIVIL AND S.J. AND SPL. JUDGE FOR CBI CASES, BANGALORE IN SPL.C.C.NO. 21/1993-CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 120-B OF IPC. - 4 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS IN CRL.A No. 465/2012 BETWEEN: 1. SRI L DAMODHARAN # 43, RENUKAMBAL NILAYAM III CROSS, RAMAIAH REDDY COLONY SECTOR B, BASAVA NAGAR, BANGALORE -560 037 (BY SRI CHOWDAPPA.B FOR SRI BHASKAR BABU H J, ADVOCATES) ...APPELLANT AND: STATE BY CBI SPE, BANGALORE ...RESPONDENT (BY SRI P.PRASANNA KUMAR, ADVOCATE) THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT.26.03.2012 PASSED BY THE XXI ADDL. CITY CIVIL AND S.J. AND SPL. JUDGE FOR CBI CASES, BANGALORE IN SPL.C.C. NO.21/1993-CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 120-B, 465 AND 471 OF IPC. IN CRL.A No.466/2012 BETWEEN: 1. SRI L DAMODHARAN #43, RENUKAMBAL NILAYAM III CROSS, RAMAIAH REDDY COLONY SECTOR-B, BASAVA NAGAR BANGALORE-560037 (BY SRI CHOWDAPPA.B FOR SRI BHASKAR BABU H J, ADVOCATES) ...APPELLANT - 5 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS AND: 1. THE SATE BY CBI, SPE BANGALORE ...RESPONDENT (BY SRI. P PRASANNA KUMAR.,ADVOCATE) THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT.26.03.2012 PASSED BY THE XXI ADDL. CITY CIVIL AND S.J. AND SPL. JUDGE FOR CBI CASES, BANGALORE IN SPL.C.C. No. 21/1993-CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 120-B, 465 AND 471 OF INDIAN PENAL CODE. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri S.G.Bhagavan, Sri Praveen C, Sri Chowdappa B for Sri Bhaskar Babu H.J., learned counsel for the appellants and Sri P.Prasanna Kumar, learned counsel for the respondent. 2. For the sake of convenience, names of the accused, their rank before the Special Court, Special CC number, Criminal Appeal number, Conviction and sentence is tabulated hereunder: - 6 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS Name of accused the Kulwant Singh Rank before Spl. Court. Accused No.3 Spl. C.C. No. 40/1996 Conviction Criminal the for Appeal offence No. before this Court p/u/s 384/2012 120B of IPC Sentence passed SI for three months and fine of Rs.25,000/- in default, SI for one month. Kulwant Singh Accused 41/1996 385/2012 -do- -do- No.3 G. Devi Prasad Accused 125/1993 408/2012 -do- -do- No.2 G. Devi Prasad Accused 21/1993 409/2012 -do- -do- No.2 L.Damodharan Accused 125/1993 465/2012 120B of No.4 IPC SI for three months and fine of Rs.25,000/- in default, SI for one month. 465 of IPC SI for one and year fine of Rs.25,000/- in default, SI for three months 471 of IPC SI for one year and fine of Rs. 25,000/- in default, SI for3months - 7 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS L.Damodharan Accused 21/1993 466/2012 120B of No.5 IPC SI for three months and fine of Rs.25,000/- in default, SI for one month. 465 of IPC SI for one and year fine of Rs.25,000/- in default, SI for three months 471 of IPC SI for one and year fine of Rs.25,000/- in default, SI for three months 3. Facts of the case in a nutshell for the disposal of the present appeals is as under: As per the charge sheet material, it is found that in or about November 1984 at Bengaluru, all the accused persons entered into conspiracy to defraud Hindustan Vegetable Oils Corporation, a Central Government of India undertaking (‘HVOC’ for short). Earlier, said concern was doing the business in the name of Ganesh Flour Mills. Further to their conspiracy on 20.11.1984 accused No.1-Bhattacharya, accused No.2-Devi Prasad, accused No.3-Kulwant Singh dishonestly - 8 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS recorded a joint decision to award a civil construction contract worth Rs.66,00,000/- to M/s Reliance Engineering Works represented by Sri Narendra Kumar Malik/ appellant in Crl.A.No.429/2012.(dismissed as abated since Narendra Kumar Malik is no more) 4. It is also further allegation that accused Nos.1 to 3 did not have the financial power or authorization to award such a civil contract which was worth Rs.66,00,000/- without the concurrence of the Head Office of ‘HVOC’. Further allegations in the charge sheet materials would reveal that the appellants simply accepted the quotation made by Narendra Kumar Malik whereby there is a wrongful loss caused to ‘HVOC’ and wrongful gain to the appellants including deceased Narendra Kumar Malik. The contract was also approved based on calling for quotation and three quotations were sent of which two quotations viz., M/s Shabari Constructions and M/s Krishna Constructions were not at all in existence. There was delay in lodging the complaint. However, the CBI investigated the matter in detail and filed the charge sheet. - 9 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS 5. Presence of accused persons was secured and after compliance of the provisions of Section 207 of the Code of Criminal Procedure, learned Special Judge framed the Charges for the offences punishable under Sections 120B r/w 465, 467, 471 of the Indian Penal Code read with Section 5(2) r/w 5(1)(d) of the Prevention of Corruption Act, 1947 in respect of accused persons in Spl.C.C.Nos.40/1996 and 125/1993. Accused in Spl.C.C.Nos.41/1996 and 21/1993 were charged for the offences punishable under Sections 120B r/w 409, 465, 467, 471 of the Indian Penal Code read with Section 5(2) r/w 5(1)(c)(d) of the Prevention of Corruption Act, 1947. 6. All accused persons pleaded not guilty and therefore, trial was held. 7. In Special Case No.21/1993 prosecution examined 17 witnesses and placed on record as many as 101 documentary evidence which were exhibited and marked as Exs.P.1 to 101 and on behalf of the defence, two witnesses viz., V.N.Venugopal and N.N.Diwan, were examined as D.Ws.1 and 2 and five documents were placed on record as Exs.D.1 to D.5. - 10 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS 8. In Spl. Case No.125/1993, prosecution examined eleven witnesses as P.Ws.1 to 11 and placed on record 52 documents which were exhibited and marked as Exs.P.1 to 52. On behalf of the accused, V.N.Venugopal was examined as D.W.1 and two documents were placed on record as Exs.D.1 and D.2. 9. On conclusion of the recording of evidence, learned Special Judge recorded the accused statement wherein, accused persons have denied the incriminatory circumstances. 10. Thereafter, learned Special Judge heard the parties in detail and on cumulative consideration of the oral and documentary evidence on record, acquitted all the accused persons for all the charges, except for the offence punishable under Section 120B of the Indian Penal Code and sentenced as referred to supra. 11. However, L. Damodharan, who is accused No.4 in Spl.C.C. No. 125/1993 and accused No.5 in Spl.C.C.No.21/1993 who has preferred Crl.A. Nos.465/2012 and 466/2012 was convicted for the offences punishable under Sections 120B, 465 - 11 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS and 471 of the Indian Penal Code and was sentenced as referred to supra. 12. The prosecution did not chose to challenge the acquittal of all the accused persons for rest of the Charges and therefore, the finding recorded by the learned Special Judge became final. 13. However, appellants have challenged their conviction for the offence punishable under Section 120B of the Indian Penal Code. L.Damodharan, appellant in Crl.A.Nos.465/2012 and 466/2012 has challenged the conviction for the offence punishable under Sections 465 and 471 of the Indian Penal Code, as well. 14. Sri S.G.Bhagavan, Sri Praveen, and Sri Chowdappa B for Sri Bhaskar Babu, learned counsel for the appellants vehemently contend that when material evidence on record was hardly sufficient for the learned Special Judge to record an order of conviction for the rest of the offences, on the very same set of offences, learned Special Judge ought not to have convicted the appellants only for the offence punishable under - 12 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS Section 120B of the Indian Penal Code, inasmuch as, in furtherance to conspiracy what is the offence committed having not been established by the prosecution. 15. It is also contended on behalf of the appellants that Central Bureau of Investigation did not had the jurisdiction to enquire into the matter inasmuch as while taking over M/s Ganesh Flour Mills and forming into HVOC, the unit at Calcutta and unit at Bengaluru were excluded. Therefore, appellants could not have been the employees or the public servants under the Central Government. Therefore, the very filing of the charge sheet by the Central Bureau of Investigation itself is incorrect which vitiates the entire trial and sought for allowing the appeals. 16. Learned counsel for the appellants also contended that what exactly is the conspiracy existed among appellants is not even spoken to by the prosecution witnesses whereby, actual loss that has been caused to HVOC has not been established even as per the findings recorded by the learned Special Judge. Therefore, conviction of the appellants solely on the ground of illusory existence of criminal conspiracy punishable under - 13 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS Section 120B of the IPC is impermissible and sought for allowing the appeals. 17. Alternatively, learned counsel for the appellants made a submission before this Court that in the event this Court upholding the order of conviction, taking note of the fact that the incident said to have occurred in November 1984, at this distance of time directing the appellants to undergo imprisonment would act as harsh and by enhancing the fine amount reasonably, the imprisonment may be set-aside. 18. Per contra, Sri P. Prasanna Kumar, learned counsel for the respondent- Central Bureau of Investigation supports the impugned judgment in recording an Order of conviction for the offence punishable under Sections 120B, 465 and 471 of the Indian Penal Code. 19. He further contended that even in the absence of proof for other offences under Indian Penal Code, apart from the offences under the Prevention of Corruption Act for which also the public servant has been acquitted, the very fact of entering into conspiracy which would turn out to be criminal conspiracy - 14 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS itself is punishable under Section 120B of the IPC and therefore, conviction needs to be maintained. 20. It is also his submission that since the conspiracy is established by placing cogent evidence on record and the statute provides for punishment of imprisonment to a maximum of six months or with fine or with both, learned Special Judge has used his discretion in granting three months imprisonment and fine which is justifiable in the facts and circumstances and sought for dismissal of the appeal in toto. 21. Having heard the parties in detail this Court perused the material on record meticulously. 22. On such perusal of the material on record, the following points would arise for consideration: (i) Whether the material evidence available on record would be sufficient enough to maintain the conviction for the offence punishable under Section 120B, 465 and 471 of the IPC? (ii) Whether the appellants make out a case that the impugned judgment of convicting - 15 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS appellants is suffering from legal infirmity, perversity and thus calls for interference? (iii) Whether the sentence needs modification? (iv) What Order? 23. REGARDING POINT Nos.1 AND 2: In the case on hand, even though technical arguments are advanced on behalf of the appellants that CBI did not had jurisdiction to register the case and proceed with the investigation and filing charge sheet, in that regard for want of materials on record, this Court is of the considered opinion that, such a technical argument cannot be countenanced in law for more than one reasons. 24. Firstly, charge sheet was not challenged by the appellants and they went through the trial without resisting on the said aspect of the matter. 25. Secondly, having suffered an order of conviction, participated in the trial, it is impermissible for the appellants to canvass the said ground before this Court for the first time. Therefore, the technical ground on which the impugned - 16 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS judgment is attacked cannot be of much avail to the appellants in seeking to set-aside of the impugned judgment. 26. On merits, there is sufficient force in the arguments that has been put forth on behalf of the appellants that the fact of want of evidence resulting in acquittal of the appellants for the other IPC offences is relevant while appreciating the arguments put forth on behalf of the appellants. 27. Accused No.1 being public servant having died during the course of Trial there could not have been any conviction for him under the provisions of Prevention of Corruption Act. 28. So far as Sri Narendra Kumar Malik one of the accused being the contractor of M/s Reliance having died during pendency of these appeals and also taking note of the fact that CBI did not challenge the acquittal of the appellants for the remaining IPC offences, the only point that this court is required to bestow in respect of the offence punishable under Section 120B of the Indian Penal Code is inasmuch as “Whether the material evidence placed on record on behalf of the prosecution - 17 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS in both the cases would be sufficient enough to infer the conspiracy existed among parties?” 29. In this regard, it is pertinent to note that while attracting the offence punishable under Section 120B of the IPC, each of the conspirator need not know the entire design. It is sufficient that if the role played by each of the conspirator if not the main act would not have accomplished then each of the conspirator would be held liable for offence punishable under Section 120B of the IPC even though each of the conspirators are not fully aware of what the fraudulent or illegal action that is sought to be achieved by such conspiracy. 30. Gainfully this Court places its reliance on the plrinciples of law enunciated in the case of Mohd. Khalid vs. State of West Bengal reported in (2002)7 SCC 334 wherein, Hon’ble Apex court has reiterated the principles of law enunciated in the Constitution Bench judgment in the case of Kehar Singh vs. State (Delhi Administration) reported in (1988)3 SCC 609. 31. In the background of the above legal principles when material evidence on record is appreciated, it is crystal clear - 18 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS that admittedly, for awarding the contract in a sum of Rs.66,00,000/- and Rs.1,25,000/- for civil work, accused Nos.1 to 3 did not have any power or authorization. Admittedly, such contract should have been with recourse to the Head Office. 32. No such prior permission is obtained by the accused Nos.1 to 3 while awarding contract to accused No.5 viz., M/s Tirumala Constructions. Amount is also drawn by M/s Tirumala Constructions. Admittedly, while awarding the contract to M/s Tirumala Constructions, necessary precautionary methods are not followed by public servants who are no more. 33. The rules and regulations while awarding the contract having been thrown to the wind inasmuch as the competitive quotations that were sought for and obtained as part of the record shows that competitive concerns who said to have given quotation were non existing concerns. 34. Therefore, there was secret agreement to achieve the object of HVOC by illegal and dubious methods. - 19 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS 35. In this regard, it is necessary for this Court to cull out the definition of Criminal Conspiracy and the punishment for such criminal conspiracy which are defined in Section 120A and 120B of the Indian Penal Code. The same reads as under: 120A. Definition of criminal conspiracy- When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. 120B. Punishment of criminal conspiracy- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 51[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. - 20 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS 36. On careful consideration of the above material on record, civil work of HVOC getting a quotation from the prospective contractor is a legal act. But to achieve that object, the procedure adopted by the public servants and the beneficiaries thereof is by illegal method which would conclude the offence of criminal conspiracy. 37. Therefore, learned Special Judge recording an order of conviction only for the offence punishable under Section 120B of the IPC is based on sound and logical reasons which requires no interference by this Court even after re-appreciation of the material evidence on record. Consequently, point Nos.1 and 2 are answered in the affirmative and negative respectively. 38. REGARDING POINT No.3: Having held point Nos.1 and 2 as above, it is now the task of this Court to find out whether the case on hand requires compulsory imprisonment period of three months as is ordered in the impugned judgment or it is appropriate to order fine alone. - 21 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS 39. On perusal of the impugned judgment no special reasons are forthcoming as to why learned Special Judge imposed three months imprisonment and fine. More so, when the Section itself would not indicate minimum punishment of imprisonment prescribed under the statute. 40. Sri Damodar who is appellant in Crl.A. No.465/2012 and Crl.A.No.466/2012 is also first time offender and beneficiary. For the offence punishable under Section 465 and 471 of the Indian Penal Code also there is no compulsory imprisonment. 41. It is settled principles of law and requires no emphasis that the Courts are required to hate the crime and not the criminal. Moreover, none of the appellants were possessing any criminal antecedents. As such, they were all first time offenders. 42. Under such circumstances, non invoking the provisions of Probation of Offenders Act, 1958, and directly ordering for imprisonment along with fine to be served and paid by the appellants has resulted in miscarriage of justice in the considered opinion of this Court. - 22 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS 43. Even before this Court, respondent is unable to say as to why imprisonment is a must in the case on hand. 44. Under such circumstances, exercising the power vested
Decision
ORDER (i)The Criminal Appeals are allowed in part. (ii) While maintaining the conviction of the appellants in Crl.A.Nos.384/2012, 385/2012,*409/2012 and 408/2012 for the offence punishable under Section 120B of the Indian Penal Code, the imprisonment *Corrected vide Court order dated 27.02.2025. - 23 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS period of three months to be served by each of the appellants in the above appeals is hereby set-aside by enhancing the fine amount in a sum of Rs.10,000/- payable by each of the appellants, on or before 28th February 2025, excluding the fine already imposed and paid by the appellants. (iii) While maintaining the conviction of the appellants in Crl.A.Nos.465/2012 and 466/2012 for the offence punishable under Section 120B, 465 and 471 of the Indian Penal Code, the imprisonment period is hereby set-aside by enhancing the fine amount in a sum of Rs.50,000/- in each of the appeal (totally Rs.1,00,000/-) payable by the appellant, on or before 28th February 2025, excluding the fine already imposed and paid by the appellant. (iv) Failure to make payment of the enhanced fine amount would automatically result in restoring the imprisonment period ordered by the learned Special Judge in the impugned judgment. - 24 - NC: 2025:KHC:4704 CRL.A No. 384 of 2012 C/W CRL.A No. 385 of 2012 CRL.A No. 408 of 2012 AND 3 OTHERS (v) Office is directed to return the Trial Court Records along with copy of this judgment forthwith, for issue of modified conviction warrant. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 24