Shyam Bhat @APPELLANT@Hash State by Karnataka

This appeal is directed against the judgment of conviction and order of sentence dated 18.12.2017 passed by the Court of XXI Additional City Civil

and Sessions Judge and Principal Special Judge for CBI Cases, Bengaluru in Spl.C.C.No.537/2017 convicting the appellant-accused No.1 for the

offence punishable under Sections 409, 467, 471, 477A read with Section 109 of IPC. and sentencing him to undergo simple imprisonment for one year

and to pay a fine of Rs.30,000/- (Rs. Thirty Thousand only) in default, to undergo simple imprisonment for one month for the offence punishable u/s.

409 r/w 109 of IPC.; to undergo simple imprisonment for one year and to pay a fine of Rs.30,000/- (Rs. Thirty Thousand only) in default, to undergo

simple imprisonment for one month for the offence punishable u/s. 467 r/w 109 of IPC.; to undergo simple imprisonment for one year and to pay a fine

of Rs.30,000/- (Rs. Thirty Thousand only) in default, to undergo simple imprisonment for one month for the offence punishable u/s. 471 r/w 109 of

IPC.; to undergo simple imprisonment for one year and to pay a fine of Rs.30,000/- (Rs. Thirty Thousand only) in default, to undergo simple

imprisonment for one month for the offence punishable u/s. 477A r/w 109 of IPC. and directing the said substantive sentences to run concurrently.

The brief facts of the case are, a case was registered against accused No.1-wife of accused No.2-appellant herein on the allegation that while

working as a Clerk(Teller) in Vijaya Bank, Palace Guttahalli Branch, Bengaluru from 28.8.1989 to 26.8.1990 had dishonestly and fraudulently made

withdrawals by forging signatures of certain savings bank account holders to the tune of Rs.2,65,700/- purportedly without the knowledge of the

respective account holders and derived pecuniary advantage to herself as well as for her husband i.e. accused No.2-appellant herein by making false

entries on the books of accounts maintained by the branch of the said Bank. On service of summons, the present appellant did not appear before the

Court, only accused No.1 appeared and was enlarged on bail. Since the presence of the accused could not be secured inspite of repeated issuance of

summons and warrants, the case against the appellant-accused No.2 was split up and was registered in Spl.C.C.No.30/1995. Thereafter charges were

framed only as against accused No.1 and after due trial, accused No.1 is convicted in Spl.CC.No.45/94 for offences punishable under Sections 409,

467, 477, 477A of IPC and Section 13(2) read with Section 13(1(c) and (d) of the Prevention of Corruption Act, 1988 and sentenced to undergo

imprisonment for four years on each count and to pay fine of Rs.10,000/- on each count. Against the said judgment, accused No.1 preferred an appeal

before this Court in Crl.A.No.1330/02 only for reduction of sentence ordered against her, which was allowed by reducing the sentence from four

years to three years and enhancing fine amount from Rs.10,000/- to Rs.20,000/- for each of the offences, thereby she did not challenge the conviction

order passed against her and only pleaded leniency in imposition of sentence. Against the said order, she once again preferred an appeal before the

Supreme Court wherein also she only pleaded for leniency in respect of sentence imposed on her in Crl.A.No.540/2009, which came to be allowed

reducing the sentence from three years to one year and enhancing fine amount from Rs.20,000/-to Rs.30,000/- on each count respectively. Thereby,

the case as against Accused No.1 reached finality. Thereafter, the present appellant-accused No.2 was secured and produced before the Court below

on 28.10.2017 and since then he is in judicial custody and case against him came to be registered as Spl.CC.No.537/2017. Since he pleaded his

inability to engage counsel he was provided legal aid from the Bengaluru Legal Services Authority. On hearing before framing charges, the Court

below found that there is prima-facie case as against him and framed charges against him. The appellant-accused No.2 pleaded guilty and claimed

leniency in awarding sentence. Hence, the Court below did not proceed for trial. However, from the observations made by this Court in the appeal

filed by accused No.1, wife of the present appellant in Crl.A.No.1330/02 disposed of on 13.3.2008, the Court below came to the conclusion that

appellant-accused No.2 abetted accused No.1 in the commission of the aforesaid offences. Though, leniency was pleaded on the ground of ill-health

of accused No.2 by producing the Medical reports and disability certificate issued by the Directorate of Empowerment on Differently abled and Senior

Citizens, Bengaluru, the same was not accepted by the Court below and held that leniency cannot be claimed on the settled principles of law that one

should not be made to get benefit out of his own wrong. Further having regard to the admitted position that an abettor shall have to undergo the

sentence similar and to the extent of the main accused, who has committed the said offences has held that abettor should not be ordered to undergo

simple imprisonment more than what the main accused is ordered to undergo the punishment. Therefore, though accused No.1 was earlier ordered to

undergo simple imprisonment for four years on each count and to pay a fine of Rs.10,000/- on each count, since on appeal filed by her, the same was

reduced from four years to three years enhancing the fine amount from Rs.10,000/- to Rs.20,000/- by this Court and further reduced from three years

to one year enhancing the fine amount from Rs.20,000/- to Rs.30,000/- on each count, the Court below ordered that the same sentence as passed by

the Supreme Court in respect of accused No.1 shall be suffered by accused No.2-appellant also. Hence, the present appeal.

Heard the learned counsel for the appellant and the learned Special PP for the respondent.

The learned counsel for accused No.2-appellant has drawn my attention to the observations made by the Court below in coming to the conclusion

that the appellant abetted accused No.1 who is his wife in the commission of the offence and as such he has to undergo sentence similar to and to the

extent of the main accused, who has committed the said offences and submitted that leniency regarding sentence be taken having regard to the fact

that the appellant is aged 67 years and is suffering from high BP, elephantas (Philarea) and also arthritis. He further submitted that though there is no

appeal provided when the accused person pleads guilty, Section 375(b) of Cr.P.C. provides for an appeal, except as to the extent or legality of the

sentence. Therefore, the case of the appellant be considered for granting lenience in respect of sentence imposed.

Per contra, the learned Special Public Prosecutor contended that in view of Section 109 of IPC. the Court below is right in awarding similar

sentence to the appellant as has been awarded to accused No.1. The appellant-accused No.2 was absconding for certain period and as such the age

of the appellant and the ill-health pleaded are not grounds for showing any lenience with regard to sentence. Therefore, he submitted that the appeal

be dismissed.

Having heard the learned counsel for the parties and having regard to the facts and circumstances of the case, I am of the opinion that there are

substance in the contention taken by the learned counsel for the appellant-accused No.2 which calls for interference with the sentence imposed by the

Court below. Having regard to the fact that the appellant-accused No.2 pleaded guilty and as accused No.1, who is wife of appellant herein was

convicted and sentenced to undergo simple imprisonment for four years on each count and to pay fine of Rs.10,000/- on each count, which was

reduced to three years with fine of Rs.20,000/- on each count by this Court and further reduced to one year with fine of Rs.30,000/- on each count,

the Court below has held that considering the nature of the offences and the mitigating circumstances in respect of the appellant-accused No.2, the

same sentence as passed by the Supreme Court in respect of accused No.1 shall have to be suffered by him also. However, having regard to the fact

that appellant-accused is suffering from various ailments, which is supported by the medical reports and disability certificate issued by the Directorate

for the Empowerment of Differently abled and Senior Citizens, Bengaluru, and that he is in judicial custody from the date of his arrest, I am of the

opinion that the period of judicial custody undergone by him from the date of his arrest i.e. from 26.10.2017 till date is sufficient sentence. Insofar as

imposition of fine is concerned, the same does not call for interference. In view of the aforesaid findings and reasons, I proceed to pass the following:-

ORDER

 The appeal preferred by appellant-accused No.2 is hereby allowed in part. The impugned judgment of conviction and sentence dated 18.12.2017

passed by the Court of XXI Additional City Civil and Sessions Judge and Principal Special Judge for CBI Cases, Bengaluru, in Spl.C.C.No.537/2017 is

maintained insofar as conviction is concerned. Insofar as sentence is concerned, the same is modified and the period of judicial custody undergone by

him from the date of his arrest i.e. from 26.10.2017 till date is held sufficient. However, the fine imposed for each of the offences remains intact. The

appellant-accused No.2 is ordered to be released forthwith.

Registry is directed to communicate the said order to the jail authorities that the accused shall be released forthwith, if he is not required in any other

case.