Bombay High Court
C.B.I vs P.V.Subbarao on 31 August, 2018
Bench: Dr. Shalini Phansalkar-Joshi
Dixit IN THE SPECIAL COURT AT BOMBAY ( Constituted under the Special Court [Trial of Offences Relating to Transactions in Securities] Act, 1992 ) SPECIAL CASE NO.4 OF 1996 Central Bureau of Investigation, ] Mumbai. ] … Complainant Versus 1. Prattipati Vankata Subbarao (Since Deceased) ] 2. R.L. Kamath (Since Deceased) ] 3. Kalimuthu Kailasham ] 4. Anil Diwakar Padhye ] 5. Arun Narendra Bavdekar ] 6. Rama Subramanian Sitaraman ] 7. Vinayak Narayan Deosthali ] 8. Makarand Vasant Shidhaye ] 9. Coodli Ravi Kumar (Discharged) ] 10. Seethapathy Suresh Babu (Discharged) ] 11. Mayuram Subramanian Srinivasan ] 12. Harshad Shantilal Mehta (Since Deceased) ] 13. Ashwin Shantilal Mehta ] 14. Sudhir Shantilal Mehta ] 15. Pankaj Vrijlal Shah ] 16. Atul Manubhai Parekh ] 17. Hiten Bhupatrao Mehta ] … Accused Mr. R.S. Mhamane, Special P.P. for the Complainant-CBI. Mr. Indrajeet Kulkarni for the Legal Heirs of deceased Accused No.8- Makarand Vasant Shidhaye 1/14 ::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:01:46 ::: CORAM : DR. SHALINI PHANSALKAR-JOSHI, J. RESERVED ON : 23 RD AUGUST 2018. PRONOUNCED ON : 31 ST AUGUST 2018.ORDER :
1. Heard Mr. Mhamane, learned Special P.P. for the Complainant-C.B.I., and Mr. Kulkarni, learned counsel for the legal heir ofdeceased Respondent No.8-Makarand Vasant Shidhaye.
2. This pertains to the payment of fine by Accused No.8-lateMakarand Vasant Shidhaye in Special Case No.4 of 1996, who isconvicted and sentenced pursuant to the ‘Judgment and Order’dated 12th April 2006 passed by this Court, as follows :-  For the offence punishable under Section 409 of IPC and sentenced to suffer R.I. for 5 years and to pay fine of Rs.1,00,000/-; in default of payment of fine, to suffer R.I. for 6 months;  For the offence punishable under Section 409 r/w. Section 107 of IPC and sentenced to suffer R.I. for 3 years and to pay fine of Rs.1,00,000/-; 2/14 ::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:01:46 ::: in default of payment of fine, to suffer R.I. for 3 months;  For the offence punishable under Section 477-A of IPC and sentenced to suffer R.I. for 3 years and to pay fine of Rs.1,00,000/-; in default of payment of fine, to suffer R.I. for 3 months;  For the offence punishable under Section 477-A r/w. Section 107 of IPC and sentenced to suffer R.I. for 3 years and to pay fine of Rs.1,00,000/-; in default of payment of fine, to suffer R.I. for 3 months;  For the offence punishable under Section 13(1) (c) r/w. 13(2) of the Prevention of Corruption Act and sentenced to suffer R.I. for 1 year and to pay fine of Rs.50,000/-; in default of payment of fine, to suffer R.I. for 3 months (aggregating to Rs.4,50,000/-);  All substantive sentences to run concurrently. 3/14::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:01:46 :::
3. Against this ‘Judgment and Order’, Accused No.8- MakarandVasant Shidhaye had preferred Criminal Appeal, bearing No.636 of2006, in the Hon’ble Supreme Court. The said Appeal was taken upfor consideration by the Hon’ble Supreme Court, along with CriminalAppeals preferred by the other co-accused. The Hon’ble SupremeCourt has, vide its order dated 27th April 2016, maintained theconviction of the Appellants, including Accused No.8-MakarandVasant Shidhaye, and reduced the sentence to the period alreadyundergone and directed the Appellants to deposit the fine, asimposed by the Special Court, within four weeks from 27th April2016.

4. As Accused No.8-Makarand Vasant Shidhaye failed to pay thefine amount within the stipulated period, the Registry has issuednotice on 12th May 2016, calling upon him to pay the total fineamount of Rs.4,50,000/- on or before 25th May 2016.
5. In response to the said notice, C.B.I. has submitted a reportstating that, Accused No.8-Makarand Vasant Shidhaye has expiredon 20th December 2010 and enclosed the ‘Death Certificate’ dated 1 stJanuary 2011, issued by the Municipal Corporation of GreaterMumbai.
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6. In view thereof, the Office has placed submission before thisCourt as to ‘whether in the light of Section 70 of IPC, the CBI can bedirected to recover the fine amount of Rs.4,50,000/- from theproperty of deceased Accused No.8-Makarand Vasant Shidhaye?’
7. In response thereto, the legal heir of Accused No.8, namely, hiswife-Madhuri Makarand Shidhaye, has filed affidavit on recordstating that, when Criminal Appeal No.636 of 2006 came to bedecided by the Hon’ble Supreme Court on 27th April 2016, theAdvocate on record was not aware that Accused No.8-MakarandVasant Shidhaye has already expired and, therefore, after she cameto know about the said order, on the receipt of the notice issued bythis Court through C.B.I. about recovery of the fine amount, she hasfiled Criminal Application Nos.17712 of 2016 and 17713 of 2016 inthe said Appeal before the Hon’ble Supreme Court and the Hon’bleApex Court was pleased to pass the order on the said applications on25th April 2017, recalling the earlier order and dismissing the Appealpreferred by Accused No.8-Makarand Vasant Shidhaye as abated.
8. In the light of the same, the Applicant-Madhuri MakarandShidhaye has stated that, as the order passed by this Court was a 5/14 ::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:01:46 ::: composite order of sentence and fine, by virtue of abatement of theAppeal, now the question of payment of fine does not arise and henceshe has prayed that fine may not be recovered from her or from theproperty of deceased Accused No.8-Makarand Vasant Shidhaye .
9. In this respect, the provisions of Section 394 of the Code ofCriminal Procedure, 1973, are relevant and they read as follows :- “394. Abatement of Appeals :- (1) Every Appeal under Section 377 or Section 378 shall finally abate on the death of the Accused; (2) Every other Appeal under this Chapter (except an Appeal from a sentence of fine) shall finally abate on the death of the Appellant; Provided that, where the Appeal is against a conviction and sentence of death or of imprisonment, and the Appellant dies during the pendency of the Appeal, any of his near relatives may, within thirty days of the death of the Appellant, apply to the Appellate Court for leave to continue the Appeal; and if leave is granted, the Appeal shall not abate. Explanation- In this Section, “near relative” means a parent, spouse, lineal descendant, brother or sister.” 6/14 ::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:01:46 :::
10. Perusal of this Section, thus, makes it clear that, every Appealpreferred against the order of conviction and sentence, abates onthe death of the Accused-Appellant. However, perusal of sub-clause(2) further makes it clear that, Legislature, in its wisdom, has madean exception in cases of an Appeal filed from a sentence of fine. Thesaid exception is made since even after the death of the Appellant,the State would be entitled to recover that amount from his estate,where he has share in the said property and, therefore, in suchcases, the Appeal would not abate.

11. The provisions of Section 70 of the IPC in this respect are alsorelevant. Section 70 of the IPC reads as under :-
“70. Fine leviable within six years, or, during imprisonment. Death not to discharge property from liability :- The fine, or, any part thereof, which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time, previous to the expiration of that period; and the death of the offender, does not discharge from the liability any property, which would, after his death, be legally liable for his debts.” 7/14 ::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:01:46 :::
12. Thus, this Section makes it further clear that, the death of theoffender does not discharge him from the liability of payment of fine,as, after his death, the property left behind by him in the hands ofhis legal heirs would be legally liable for his debts.
13. This is the very analogy, which is elaborated by the Hon’bleApex Court in the case of Harnam Singh Vs. The State of HimachalPradesh, (1975) 3 SCC 343, and further confirmed by the Hon’bleApex Court in the case of State of Andhra Pradesh Vs. NarasimhaKumar and Others, (2006) 5 SCC 683. In paragraph Nos.9 and 10 ofthe former Judgment, it is held as follows :-
“9. Every other appeal, under Chapter XXXI, except an appeal from a sentence of fine, finally abates on the death of the appellant. By “every other appeal” is meant an appeal other than one against an order of acquittal, that is to say, an appeal against an order or conviction. Every appeal against conviction, therefore, abates on the death of the accused, except an appeal from a sentence of fine. An appeal from a sentence of fine is excepted from the all pervasive rule of abatement of criminal appeals for the reason that, the fine constitutes a liability on the estate of the deceased and the legal representatives, on whom the estate devolves, are entitled to ward off that liability. By Section 70 of the Penal Code, the fine can be levied at 8/14 ::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:01:46 ::: any time within six years, after the passing of the sentence, and if the offender has been sentenced for a longer period than six years, then, at any time, previous to the expiration of that period; “and the death of the offender does not discharge from the liability any property, which would, after his death, be legally liable for his debts.” The fact that the offender has served the sentence in default of payment of fine, is not a complete answer to the right of the Government to realize the fine, because, under the proviso to Section 386(1)(b) of the Code, the Court can, for special reasons to be recorded in writing, issue a warrant for realizing the fine, even if the offender has undergone the whole of the imprisonment in default of payment of fine. The sentence of fine remains outstanding, though the right to recover the fine is circumscribed by a sort of a period of limitation prescribed by Section 70, Penal Code. 10. The narrow question, which then requires to be considered is, ‘whether an appeal from a composite order of sentence, combining the substantive imprisonment with fine, is, for the purposes of Section 431, not an appeal from a sentence of fine?’ It is true that, an appeal from a composite order of sentence is ordinarily directed against both the substantive imprisonment and the fine. But, such an appeal does not for that reason cease to be an appeal from a sentence of fine. It is something more, not less, that an appeal from a sentence of fine only and it is significant that the parenthetical clause of Section 431 does not 9/14::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:01:46 ::: contain the word “only”. To limit the operation of the exception contained in that clause, so as to take away from its purview appeals directed both against imprisonment and fine is to read into the clause the word “only”, which is not there and which, by no technique of interpretation, may be read there. The plain meaning of Section 431 is that, every criminal appeal abates on the death of the accused, “except an appeal from a sentence of fine”. The Section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. If by the Judgment under appeal, a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine, within the meaning of Section 431. All that is necessary is that, a sentence of fine should have been imposed on the accused and the appeal filed by him should involve the consideration of the validity of that sentence.”
14. From the above-said observations made by the Hon’ble ApexCourt, it can be clearly understood that, if an Appeal is preferredagainst an order of conviction of the Trial Court and the sentence iseither composite sentence of imprisonment, or, fine, or, is merely asentence of fine, in both the cases, Appeal would not abate on thedeath of the Appellant.
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15. As per the Proviso to Section 394 of the Cr.P.C., if during thependency of the Appeal, the Appellant dies, any of his near relativesare at liberty to apply to the Appellate Court for leave to continuethe Appeal and if leave is granted, the Appeal shall not abate. Fromthis proviso, it is obvious that the obligation to file an application forcontinuation of an Appeal is cast on the near relatives and if no suchapplication is filed by the near relatives within the limit prescribedby the said Proviso, the Appeal will not be continued and it will standabated.

16. Here in the case, the legal heir of Accused No.8-MakarandVasant Shidhaye, i.e. his wife – Madhuri Sidhye, who has filed heraffidavit-in-rejoinder, was at liberty to file such application beforethe Hon’ble Supreme Court for continuation of the Appeal filed byher husband. If she had made such application and if the leave wasgranted, the Appeal would not have been abated. In that case, if shehas succeeded and the conviction was set aside, then the estate ofAccused No.8-Makarand Vasant Shidhaye would have been sparedfrom the liability of payment of fine. However, admittedly, she hasnot made such application and as a result, the Appeal is dismissed asabated. Therefore, the conviction and sentence recorded by this 11/14 ::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:01:46 ::: Court against Accused No.8-Makarand Vasant Shidhaye stands. Asregards the sentence of imprisonment, admittedly, it will abate, inview of the death of Accused No.8-Makarand Vasant Shidhaye.
17. However, as regards the sentence of fine, in view of Section 70of the IPC, that sentence will stand till today for the well-said reasonthat, the fine constitutes a liability on the estate of the deceased andthe legal representatives, on whom the estate devolves, are liable toward off that liability.

18. For that matter, it can also be stated that, even if the offenderhas served the sentence in default of payment of fine, it is not acomplete answer to the right of the Government to realize the fine,because, under the proviso to Section 386(1)(b) of the Cr.P.C., theCourt can, for special reasons to be recorded in writing, issue awarrant for realizing the fine, even if the offender has undergone thewhole of the imprisonment in default of payment of fine. Thesentence of fine, thus, remains outstanding, though, at times, theright to recover the fine is also circumscribed by a sort of a period oflimitation prescribed by Section 70 of IPC.
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19. The point, therefore, to be stressed is that, mere dismissal ofthe Criminal Appeal as ‘abated’, does not absolve the property leftbehind by the Accused from the liability of paying the fine amount.Here in the case, therefore, the option, which was open to the legalheir of deceased Accused No.8-Makarand Vasant Shidhaye ofseeking the waiver of the fine amount, in view of death of AccusedNo.8, was to apply to the Hon’ble Supreme Court, where the Appealwas pending. In the absence of such order from the Hon’ble SupremeCourt, this Court cannot even exercise that power to dispense withthe payment of fine.

20. Though Mr. Kulkarni, learned counsel for the legal heir ofAccused No.8- Makarand Vasant Shidhaye, has relied upon theJudgment of this Court in the case of Shri Gopala Balu Kamble Vs.The State of Maharashtra, 2012 ALL MR (Cri) 300 , to submit that,in the said Judgment, this Court has, on abatement of the Appeal,due to death of the Appellant, set aside even the order of payment offine, as the Appeal would abate in respect of the sentence ofimprisonment; in my considered opinion, as it was done in theAppeal by the Appellate Court and not by the Trial Court, the said 13/14 ::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:01:46 ::: Judgment cannot be of any assistance to seek such prayer beforethis Court.

21. As stated above, the only proper remedy for the legal heir ofdeceased Accused No.8-Makarand Vasant Shidhaye was to makesuch prayer before the Hon’ble Supreme Court and to that end,sufficient opportunity was also given. However, as it is not done, thisCourt is left with no other option, but to recover the amount of finefrom the estate of deceased Accused No.8-Makarand VasantShidhaye.

22. The C.B.I. is, therefore, directed to recover the fine amount ofRs.4,50,000/- from the property left behind by deceased AccusedNo.8-Makarand Vasant Shidhaye.

[DR. SHALINI PHANSALKAR-JOSHI, J.] 14/14 ::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:01:46 :::

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