James Joseph @ Joemon vs Union Of India
2023 Latest Caselaw 3791 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
         Thursday, the 30th day of March 2023 / 9th Chaithra, 1945
               CRL.M.APPL.NO.2/2023 IN CRL.A NO. 190 OF 2023

           CC 10/2012 OF THE SPECIALCOURT (SPE/CBI)-I, ERNAKULAM

PETITIONER/APPELLANT/ACCUSED NO.3:

     JAMES JOSEPH @ JOEMON, AGED 62 YEARS,
     MANAGING PARTNER OF M/S HOTEL LYNDAS RESIDENCY, KUTHUPARAMBA, KANNUR
     - 670643. S/O M C JOSEPH, MANIMALA HOUSE, KOODAMCHALIL ROAD,
     MARYKUNNU P.O., KOZHIKODE, PIN - 673012.

RESPONDENT/RESPONDENT/STATE:

     UNION OF INDIA, REPRESENTED BY CENTRAL BUREAU OF INVESTIGATION
     THROUGH THEIR STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM, PIN
     - 682031. (CRIME NO RC31(A)/2011/CBI/ACB/COCHIN)


     Application praying that in the circumstances stated therein the
High Court be pleased to suspend the conviction passed by the Court of
Special Judge (SPE-CBI)-I, Ernakulam in CC No.10/2012 till the disposal of
the above Criminal Appeal/allow the petitioner to renew the license till
the disposal of Criminal Appeal by allowing this petition in the interest
of justice.


     This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.S.RAJEEV, V.VINAY, M.S.ANEER, SARATH
K.P., PRERITH PHILIP JOSEPH, Advocates for the petitioner and of the
DEPUTY SOLICITOR GENERAL OF INDIA for the respondent, the court passed the
following:




                                                                     P.T.O.
                     Dr. Kauser Edappagath, J
              -------------------------------
                         Crl.M.A.No.2/2023
                                 in
                         Crl.A.No.190/2023
              -------------------------------
               Dated this the 30rd day of March, 2023
             --------------------------------

                              ORDER

This is an application filed by the accused No.3 under

Section 389(1) & (2) read with 482 of Cr.P.C to suspend the

conviction in C.C.No.10/2012 on the files of the Special

Court(SPE/CBI)-I, Ernakulam (for short the court below).

2. The petitioner is the Managing partner of M/s. Hotel

Lyndas Residency. He, along with accused Nos. 1 and 2 faced

trial for the offences punishable under Section 120B of the IPC,

Sections 7, 12 & 13(2) read with 13(1)(d) of the Prevention of

Corruption Act.

4. The prosecution case is that the accused Nos. 1 and 2

while working as public servants in the capacity of Assistant

Director and Tourist Information Officer (Adhoc), India Tourism,

Kochi, hatched a criminal conspiracy at Kochi to issue three star Crl.M.A.No.2/2023 in Crl.A.No.190/2023

classification in favour of the hotel M/s. Lyndas Residency of

which the petitioner is the Managing Partner and in furtherance

of the said conspiracy, they contacted the representatives of the

petitioner over phone and demanded illegal gratification to speed

up the issuance of three star classification. The petitioner joined

the conspiracy and agreed to make the payments and

accordingly, the representatives of the petitioner went to India

Tourism, Kochi office, handed over the bribe money which was

received and accepted by the accused Nos. 1 and 2.

5. The court below after a full-fledged trial found the

accused No. 1 not guilty for the offences alleged against him and

he was acquitted. The accused No.2 and 3 were found guilty for

the offences punishable under Sections 120B of the IPC read with

Sections 7, 12 13(2) read with 13(1)(d) of the PC Act and

convicted for the said offences. Sentence was also passed

against the accused Nos. 2 and 3. The execution of sentence of

the petitioner was already suspended by this court.

6. The learned DSGI representing the respondent sought

time to file objection/statement. However, the learned counsel Crl.M.A.No.2/2023 in Crl.A.No.190/2023

for the petitioner submits that unless the application is

considered today and order is passed, the bar license of the

petitioner company will be suspended. In these circumstances, I

directed both the counsel to address the arguments.

7. I have heard the learned counsel for the petitioner and

the learned DSGI in length.

8. The learned counsel for the petitioner submitted that

this is an exceptional case where the power vested by this Court

under Section 389 (1) of Cr.P.C to suspend the conviction could

be invoked. The counsel further submitted that, unless the

conviction is suspended, the bar license of the petitioner

company will not be renewed. On the other hand, the learned

DSGI submitted that no valid ground has been canvassed by the

petitioner in the application to get the conviction suspended. The

learned DSGI also submitted that the power under Section

389(1) of Cr.P.C could be exercised only in exceptional cases and

the fact that the license could not be renewed is not a criteria

while considering an application under Section 389(1) of Cr.P.C.

9. The hotel in question run by the petitioner is hotel Crl.M.A.No.2/2023 in Crl.A.No.190/2023

'Lyndas Residency'. The evidence adduced by the prosecution

would prove that ₹50,000/- (currency notes 100 Nos. of ₹500

denomination) marked as MO17 and ₹5,000/- (currency notes 5

Nos of ₹1000 denomination) marked as MO18 kept in MO19

envelope were recovered from the possession of the accused

No.2. According to the prosecution, the said bribe money was

given by the petitioner. There is no direct evidence to prove the

same. No evidence was adduced by the prosecution to prove the

source of money allegedly utilised to bribe the accused No.2.

According to the prosecution, PW30, the General Manager of the

Hotel Lyndas Residency accompanied the petitioner to the India

Tourism office and paid the bribe to the accused No.2. But he

turned hostile to the prosecution. PW28, the driver who allegedly

drove the car of A3 on the day also turned hostile. However, the

court below relied on circumstances to prove that the petitioner

gave those money to the accused No.2. Thus there are only

circumstantial evidence to connect the petitioner with the alleged

offence.

10. It is not in dispute that if the order of conviction is not Crl.M.A.No.2/2023 in Crl.A.No.190/2023

suspended, the petitioner will not be able to renew the bar

license and able to conduct his business because of the bar under

Section 13 A (4) of the Foreign Liquor Rules. The learned DSGI

relied on the decision of the Apex Court in K.C. Sareen v. CBI,

Chandigarh [(2001) 6 SCC 584], in which it was held that the

power to suspend the conviction should be exercised in

exceptional cases, having regard to all the aspects including the

effect of such suspension. It was further held that when a public

servant who is convicted of corruption is allowed to continue to

hold public office, it would impair the morale of the other persons

manning such office, and consequently that would erode the

already shrunk confidence of the people in such public

institutions besides demoralising the other honest public servants

who would either be the colleagues or subordinates of the

convicted persons. In the said case, the accused who prayed for

the suspension of sentence was a public servant. On the other

hand, the petitioner before me is not a public servant. A Single

Bench of this Court in C.P. Maggie & Another v. State of

Kerala [Crl.M.A.No.4779/2017 in Crl.Appeal No.781/2017 Crl.M.A.No.2/2023 in Crl.A.No.190/2023

decided on 13.10.2017] suspended the conviction on a similar

situation, solely on the ground that unless the conviction is

suspended, the bar license could not be renewed. The learned

Single Judge relying on K.C. Sareen (supra) took the view of the

Apex Court that different standards should be applied for public

servants and convicts other than public servants. This Court

again in Ratheesh T.V. v. State of Kerala

[Crl.M.C.No.7033/2018) decided on 23.10.2018] suspended the

conviction only on the ground that unless the conviction is

suspended, the license of the toddy shop of the accused cannot

be renewed.

11. Considering all these circumstances, I am of the view

that this can be considered as an exceptional case where the

conviction of the petitioner vide the impugned judgment could be

suspended till the disposal of the appeal. While suspending the

sentence, the petitioner was directed to deposit 1/3 rd of the

entire fine amount.

In view of the above findings, the application is allowed.

The conviction of the petitioner stands suspended on condition Crl.M.A.No.2/2023 in Crl.A.No.190/2023

that the petitioner shall execute a bond for ₹2,00,000/-(Rupees

two lakhs only) with two solvent sureties for the like sum each to

the satisfaction of the court below and on further condition that

the petitioner shall deposit the remaining 2/3rd of the fine amount

within a period of one month before the court below. It is made

clear that the observations made in this order are for the limited

purpose of adjudicating this application.

Sd/-

DR. KAUSER EDAPPAGATH, JUDGE H/o kp

30-03-2023 /True Copy/ Assistant Registrar