REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NOS. 751-752 OF 2019 (Arising out of SLP(Crl.) Nos. 1771-1772 of 2019)

N. RAMAMURTHY           …. APPELLANT(S)

VS.

STATE BY CENTRAL BUREAU  OF INVESTIGATION, A.C.B., BENGALURU                  .…RESPONDENT(S)

JUDGMENT  

Dinesh Maheshwari, J.

Leave granted.

2. In  these  appeals,  the  appellant-accused  has  called  in  question  the

orders  dated  03.01.2019  and  29.01.2019  passed  by  the  High  Court  of

Karnataka at Bengaluru in IA Nos. 1 of 2018 and 1 of 2019 in Criminal Appeal

No.  2000 of  2018 whereby,  the High Court  has rejected  his  prayer  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:

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3.1. The appellant herein was tried as Accused No. 2 in Special Criminal

Case No. 12 of 2002 for the offences under Section 120-B read 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 the Prevention 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 working as clerk and

manager in the State Bank of Mysore, entered into a criminal conspiracy 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 to the extent of Rs. 23,53,090/- in

various accounts maintained by the customers in the bank like Savings Bank

Account, Current Account, Term Deposit, Reinvestment Deposit etc; and the

amount so debited was fraudulently credited to the personal accounts of the

appellant and was obtained by forging the withdrawals. It  was also alleged

that during the year 1996, both the accused persons fraudulently added a

fictitious name K. Prabhakara to Savings Bank Account No. 1400 existing in

the  name  of  R.  Madhusudana,  though  the  specimen  signatures  of  K.

Prabhakara were not available in the bank; fraudulent credits were posted in

the said Savings Bank Account No. 1400 to the tune of Rs. 9,46,399/-; and

subsequently, the appellant made withdrawals on different dates from the said

account by forging the signatures of K. Prabhakara. It was also alleged that

the  Accused  No.  1  permitted  several  temporary  Overdrafts  for  substantial

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amounts  in  different  Current  Accounts  in  excess  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 the factual

aspects of the case need not be elaborated herein. Suffice would be to notice

for the present purpose that during the trial, Accused No. 1 expired and the

matter stood abated qua him. However, after due trial in Special Case No. 12

of  2002,  the  Court  of  XLVI  Additional  City  Civil  and  Sessions  Judge  and

Special Judge for C.B.I. Cases, by its judgment dated 22.10. 2018, convicted

the appellant for the offences aforesaid while holding that he had forged the

signatures of many customers, had created withdrawal slips with dishonest

intention, and had misappropriated the amount of various depositors from their

accounts. The Trial Court proceeded to award the sentence/s to the appellant

as follows1:

"The accused No. 2 for the offence under Section 120B IPC shall undergo rigorous imprisonment of  seven years and 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 420 IPC shall undergo rigorous imprisonment of  seven years and 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 409 IPC shall undergo rigorous imprisonment of  seven years and 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 468 IPC shall undergo rigorous imprisonment of  seven years and pay

1 Extraction from pp. 270-272 of the SLP paper-book

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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 471 IPC shall  undergo rigorous imprisonment of  three years and pay 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 477A IPC shall undergo rigorous imprisonment of  seven years and 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 shall undergo rigorous imprisonment of  seven years and pay fine of  Rs. 50,000/-,  in  default  to  pay the fine amount,  shall further undergo simple imprisonment for one year.  All the sentences shall run concurrently.

Accused No. 2 is entitled for set off u/S. 428 of Criminal Procedure Code, for the period already undergone in Judicial Custody, if any."

                  (underlining supplied for emphasis)

3.4.  Aggrieved by the judgment and order aforesaid, the appellant preferred

an appeal, being Criminal Appeal No. 2000 of 2018, before the High Court of

Karnataka at Bengaluru. The said appeal has been admitted for hearing by

the High Court. The appellant also moved an application seeking suspension

of  execution  of  sentence  (IA  No.  1  of  2018)  that  was  considered  and

dismissed by the High Court on 03.01.2019 while observing,  inter alia, that

"the sentence of imprisonment all put together comes to 45 years of rigorous

imprisonment  (for  all  the  proven  guilt  put  together)".  While  rejecting  the

contentions urged on behalf of the appellant, the High Court observed that the

evidence pointed towards the guilt of the appellant; that non-examination of

hand-writing expert was not a convincing ground for seeking suspension when

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other  evidence and material  were  available  on  record;  that  looking  to  the

nature of the offence alleged, designation of the appellant, whether as clerk or

in any other capacity, was immaterial; that when the appellant was 66 years of

age, many age-related ailments were natural but it was incorrect to say that

while serving the sentence, he was deprived of proper medical care. The High

Court also referred to the decision of this Court in the case of Navjot Singh

Sidhu  vs.  State  of  Punjab:  (2007)  2  SCC  574 and  observed  that  the

Appellate Court could suspend the order of conviction only when the convict

specifically  shows  the  consequences  that  may  follow  if  the  order  is  not

suspended or stayed; and the present one was not a fit case for suspension of

sentence and enlargement of the accused on bail.

3.4.1. The  relevant  observations  of  the  High  Court  in  its  order  dated

03.01.2019 could be noticed as under2:-

"1. The  accused  No.  2  –  N.  Ramamurthy  has  filed  this appeal  challenging the judgment  of  conviction and order of sentence dated 22.10.2018 passed by learned XLVI Additional City  Civil  and  Session  Judge  and  Special  Judge  for  CBI cases,  Bengaluru  in  Special  Criminal  Case  No.  12/2002, wherein  the  present  appellant/accused  No.  2  has  been convicted for the offence punishable under Section 120-B r/w Sections 420, 409, 468, 471, 477-A of IPC and under Section 13(2) r/w Sections 13(1)(c) and (d) of Prevention of Corruption Act, 1988 and sentenced accordingly. The Special Court has ordered separate sentence of imprisonment and fine in each of the offences for which appellant/accused No. 2 was found guilty. The sentence of imprisonment all put together comes to 45 years of rigorous imprisonment (for all the proven guilt put together).

**** ****                       ****

2 Extraction from pp. 1 and 5-7 of the SLP paper-book

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14. Considering  the  said  alleged  voluntary  act  of  the accused  and  various  other  circumstances,  the  trial  Court appears  to  have  arrived  at  a  conclusion  holding  that  the accused is guilty of the alleged offences. In view of the said fact 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 Corruption Act,  1988,  I  do  not  find  that  non-examination  of  the  hand writing  expert  would  be  a  convincing  ground  for  seeking suspension of sentence of the appellant.

15. The second phase of argument of the learned counsel for the appellant is that the accused being only a Clerk, had no  power  to  prematurely  close  the  deposits  and  close  the account. A cursory look of the same, go to show that accused nowhere says that in his capacity as a Clerk he has closed several accounts. On the contrary, offence alleged against him is  forging  the  signatures  of  the  customers  and  making  the Bank to credit the deposits proceeds to his account. Thus, the designation of the accused whether as a Clerk or discharging his working in any other capacity would become immaterial in this context. As such, the argument of learned counsel for the appellant on that ground is also not acceptable.

16. Lastly, it is also the contention of the appellant that the accused  No.  2/appellant  is  suffering  from  several  health related  ailment  and  diseases  haemorrhage  and  is  under constant medication.

Admittedly,  the age of  the appellant/accused No. 2 is said to be 66 years, as such, many age related ailments are natural to be present in many of the people. It is incorrect to say that because a person is serving sentence, he is deprived of  the  proper  medical  care.  As  such,  the  health  related grounds canvassed also is not acceptable.

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

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18. In the case on hand, for the reasons given above, I do not find that it is one such case, which deserves the suspension of sentence and enlargement of the accused on bail."

(underlining supplied for emphasis)

3.5. Thereafter, the second application seeking suspension of execution of

sentence was moved on behalf of the appellant, being IA No. 1 of 2019, on the

ground of his deteriorating health condition. However this application was also

dismissed  by  the  High  Court  by  order  dated  29.01.2019  while  essentially

relying upon the reasons assigned for declining such prayer in the previous

order dated 03.01.2019. The High Court, however, ordered that the direction

of the treating doctor of the appellant may be complied with. In its order dated

29.01.2019, the High Court again proceeded to observe that the appellant was

awarded 45 years of imprisonment in the following3:-

"2. The appellant/applicant is a convicted person in the said case for  the  offences  punishable  under  Section  120B read with Sections 420, 409, 468, 471, 477A of Indian Penal Code and under Section 13(2) read with Sections 13(1)(c) and (d) of Prevention  of  Corruption  Act,  1988,  (hereinafter  for  brevity referred to as 'P.C.Act'). He was sentenced accordingly by the Special  Court.  The  Special  Court  has  ordered  separate sentence of imprisonment and fine for each of the offences for which  the  appellant  was  found  guilty.  The  sentence  of imprisonment all put together comes to 45 years of rigorous imprisonment (for all the proven guilt put together)."

(underlining supplied for emphasis)

4. Assailing the orders aforesaid, the learned counsel for the appellant has

strenuously argued that  the High Court  has approached the case from an

altogether wrong angle while observing that the appellant has been awarded

3 Extraction from p. 8 of the SLP paper-book

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45  years  of  imprisonment  though  the  sentences  were  ordered  to  run

concurrently  by  the  Trial  Court  and  hence,  the  maximum  period  of

imprisonment is 7 years apart from certain default stipulations, which would

come in operation only if the fine is not paid. The learned counsel has further

argued that the reference to the decision in Navjot Singh Sidhu (supra), was

also misplaced because the appellant herein had only prayed for suspension

of sentence and not for suspension of his conviction. According to the learned

counsel, the prayer for suspension of sentence should be considered liberally

and  suspension  ought  not  be  denied  unless  there  are  exceptional

circumstances; and there being no such exceptional reasons or circumstances

in the present case, the prayer for suspension deserves to be granted.  Per

contra, the orders impugned are duly supported on behalf of  the respondent

with reference to the findings recorded against the appellant by the Trial Court.

5. Having heard learned counsel  for  the parties  and on perusal  of  the

record, we are inclined to allow these appeals and while setting aside the

orders impugned, restore the applications seeking suspension of execution of

sentence under Section 389 CrPC for consideration afresh by the High Court.

6. We feel it imperative to restore the applications for consideration afresh

for the fundamental reason that the approach of the High Court in dealing with

the applications made on behalf of the appellant under Section 389 CrPC had

apparently been from a wrong angle and on two major misconceptions: One,

that the High Court assumed as if the sentences awarded to the appellant for

different offences are to run consecutively i.e., one after another and, while

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taking sum total of the sentences so awarded, the High Court has proceeded

as if the accused appellant has been ordered to undergo imprisonment for a

whopping 45 years. No great deal of discussion is required to say that such an

assumption by the High Court had been fundamentally incorrect and the High

Court, obviously, omitted to notice that the Trial Court had specifically ordered

that all  the sentences shall  run concurrently.  Secondly, the High Court  has

proceeded to refer to the principles governing the consideration of the prayer

for suspension of the operation of the order of conviction, although the prayer

in the present matter had only been for suspension of execution of sentence.

7. It is not far to seek that when the High Court assumed that the appellant

is to serve 45 years in prison, its consideration of the prayer for suspension of

execution  of  sentence  took  entirely  different  dimensions.  The  applications

ought  to  have  been  considered  while  keeping  in  view  the  fact  that  with

concurrent  running  of  sentences,  the  maximum  period  for  imprisonment

envisaged by the order of  the Trial  Court  is 7 years.  Of course,  there are

default stipulations in the order of the Trial Court but in any case, and by any

method of calculation, it cannot be said that the appellant has been ordered to

serve out 45 years in prison. The length of imprisonment to be served under

an impugned order of sentencing has obvious bearing on the consideration of

the prayer for suspension of execution of sentence during the pendency of an

appeal or revision; and when there had been fundamental error as regards

such  an  over-bearing  factor,  the  prayer  of  the  appellant  requires

reconsideration after removal of this error.  

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8. In both the orders impugned, the High Court, apart from the aforesaid

error about the length of imprisonment to be served by the appellant, has also

proceeded on entirely irrelevant consideration with reference to the principles

related  with  the  prayer  for  suspension  of  the  operation  of  the  order  of

conviction  that  such  a  suspension  could  be  granted  only  in  rare  and

exceptional  cases  and  for  special  reason.  With  respect,  the  High  Court

appears to have missed out the fact that the prayer on behalf of the appellant

had only been for suspension of execution of sentence and not for stay or

suspension of the operation of the order of conviction. Hence, reference to the

decision in Navjot Singh Siddhu (supra) had been obviously inapt on the facts

and  in  the  circumstances  of  the  present  case.  In  fact,  in  the  other  cited

decision in  K.C. Sareen v. CBI, Chandigarh:  (2001) 6 SCC 584, this Court

has indicated that ordinarily, the superior Court should suspend the sentence

of imprisonment in the matters relating to the offence under the PC Act, unless

the appeal could be heard soon after filing. This Court pointed out the subtle

distinction in the proposition for suspension of an order of conviction 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 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 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

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we have to examine the question as to what should be the position  when  a  public  servant  is  convicted  of  an  offence under the PC Act. No doubt when the appellate court admits the appeal filed in 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,  dehors  the  sentence  of imprisonment as a sequel thereto, is a different matter.”

8.1. What we find from the impugned order dated 29.01.2019 is that, even

after taking note of the principles aforesaid, the High Court has apparently

missed out the substratum and has not applied the applicable legal principles

to the case at hand.  

9. We are not elaborating on the other grounds urged on behalf  of  the

appellant  for  suspension  of  execution  of  substantive  sentence  of

imprisonment, essentially for the reason that this prayer under Section 389

CrPC is to be adequately examined and considered by the High Court with

reference to the record and all  the surrounding factors; and, in the present

case, when consideration of such a prayer is found vitiated for an erroneous

approach, we are of the view that the High Court need to consider the prayer

afresh.  

10. It goes without saying that we have neither pronounced on the merits of

the  applications  moved  on  behalf  of  the  appellant  seeking  suspension  of

execution of sentence nor have made any observations relating to the merits

of the appeal pending in the High Court and the entire matter is left open for

consideration of the High Court in accordance with law.  

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11. Accordingly and in view of the above, these appeals are allowed to the

extent and in the manner that the impugned orders dated 03.01.2019 and

29.01.2019 passed respectively in disposal of IA No. 1 of 2018 and IA No. 1 of

2019 in Criminal Appeal No. 2000 of 2018 by the High Court of Karnataka are

set  aside;  and the said IA Nos. 1 of  2018 and 1 of  2019 are restored for

consideration afresh. The matter being related with the prayer for suspension

of execution of sentence during the pendency of appeal, we would request the

High  Court  to  take  up  and  dispose  of  the  said  applications  expeditiously,

preferably within two weeks from today.  

       .............................................J.        (ABHAY MANOHAR SAPRE)

      ............................................J.     (DINESH MAHESHWARI)   1

New Delhi, Date:  26th April, 2019.

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