Leisure And Tourism ... vs Union Of India
2023 Latest Caselaw 3792 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.162 OF 2023

          CC 11/2012 OF THE SPECIAL COURT (SPE/CBI)-I, ERNAKULAM

PETITIONER/APPELLANT/ACCUSED NO.3:

     M/S.LEISURE AND TOURISM INTERNATIONAL PVT. LTD., PERAVOOR, KANNUR,
     REPRESENTED BY ITS MANAGING DIRECTOR K.K. MOHANDAS, K.K. PLAZA
     BUILDING, PERAVOOR, THALASSERY, KANNUR, KERALA, PIN - 670673.

RESPONDENT/RESPONDENT/COMPLAINANT::

     UNION OF INDIA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
     KERALA, ERNAKULAM - 682031. (RC 31(A)/2011/CBI/ACB/COCHIN)


     Application praying that in the circumstances stated therein the
High Court be pleased to suspend the conviction pending against the
petitioner in CC No.11/2012 dated 27.01.2023 passed by the Special Court
(SPE/CBI)-I, Ernakulam in RC 31(A)/2011/CBI/ACB/COCHIN otherwise
irreparable loss and hardship will be caused to the petitioner.


     This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S. C.P.UDAYABHANU, RASSAL JANARDHANAN
A., ABHISHEK M. KUNNATHU, BOBAN PALAT, P.U.PRATHEESH KUMAR, P.R.AJAY,
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.162/2023
              -------------------------------
               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.11/2012 on the files of the Special

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

2. The petitioner is a private limited company represented

by its Managing Director. It, 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.162/2023

classification in favour of the petitioner company and in

furtherance of the said conspiracy, they contacted the

representatives of the petitioner company 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 company went to India Tourism, Kochi

office, handed over the money together with the gift items and

bribe which were received and accepted by the accused Nos. 1

and 2.

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

accused Nos. 1 and 4 not guilty for the offences alleged against

them and they were 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.162/2023

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 company is

hotel 'Broad Bean'. Accused No.4 is its Managing Director. He Crl.M.A.No.2/2023 in Crl.A.No.162/2023

was acquitted by the court below. The evidence adduced by the

prosecution would prove that ₹40,000/- (currency notes 80 Nos.

of ₹500 denomination) marked as MO23 kept in MO24 cover

were recovered from the possession of the accused No.4.

According to the prosecution, the said bribe money was given by

the petitioner company. There is no direct evidence to prove the

same. However, the court below took note of the circumstances,

particularly the writing 'BB' in MO24 cover and came to the

conclusion that the said money was given by the petitioner

company. No evidence was adduced by the prosecution to prove

the source of money utilised allegedly to bribe the accused No.1.

According to the prosecution, PW34, the General Manager of the

petitioner company went to the India Tourism office and paid the

bribe to the accused No.1. But he turned hostile to the

prosecution. The prosecution also alleged that MO 21 and MO22

watches and MO20, MO21(a) and MO22(a) perfume bottles were

given to the accused No.2 by the petitioner company as bribe.

To prove the same also, there is no direct evidence. However,

the court below relied on circumstances to prove that the

petitioner company gave those gifts to the accused No.2. The Crl.M.A.No.2/2023 in Crl.A.No.162/2023

prosecution relied on the bills by which those articles were

purchased. But those bills were issued not in the name of the

petitioner company, but in the name of another company namely

K.K. Tourist Home, Iritty of which the accused No.4 is the

Managing Partner. Thus there are only circumstantial evidence

to connect the petitioner company with the alleged offence.

10. It is not in dispute that if the order of conviction is not

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

license and able to conduct their 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 Crl.M.A.No.2/2023 in Crl.A.No.162/2023

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

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 Crl.M.A.No.2/2023 in Crl.A.No.162/2023

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

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

kp

30-03-2023 /True Copy/ Assistant Registrar