IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 CRL.A.No. 2113 of 2003() ------------------------------------ CC.1/1999 OF SPECIAL COURT (SPE/CBI)-I, ERNAKULAM .................... APPELLANT(S): ----------------------- P. DEVARAJAN (IN CUSTODY) DEEPTHI, PALLIKUNNU, KANNUR. BY ADV. SRI.M.NARENDRA KUMAR, SRI.SALISH ARAVINDAKSHAN. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. C.B.I., REPRESENTED BY ITS STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM. R1 BY PUBLIC PROSECUTOR R2 BY ADV. SRI.P. CHANDRASEKHARAN PILLAI, SC FOR CBI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2011, ALONG WITH CRA NO.2114 OF 2003 AND CRA NO.2115 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.S.GOPINATHAN, J. --------------------------- Crl.A.Nos. 2113, 2114 & 2115 OF 2003 ----------------------------- Dated this the 30th day of May, 2011 C O M M O N J U D G M E N T ~~~~~~~~~~~ The common appellant is the accused in C.C.Nos.1/1999, 2/1999 and 3/1999 on the file of the Special Judge (SPE/CBI)-I, Ernakulam. By common judgment dated 20.12.2003, the appellant was found guilty for offence under Sections 420, 462, 468, 477, 201 and 471 IPC and under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (herein after referred to as 'PC Act). In all the three cases, for offence under Section 13(2) read with 13(1)(d) of the PC Act, the appellant was sentenced to rigorous imprisonment for five years and a fine of rupees One lakh. For offence under Sections 420, 468 and 477A IPC, he was sentenced to rigorous imprisonment for three years. For offence under Sections 201 and 462 IPC, he was sentenced to rigorous imprisonment for one year. Assailing the above conviction and sentence, these appeals were preferred. Crl.A.Nos.2113/2114 & 2115/2003 2 2. Today, when the appeals came up for hearing Adv. Sri, Salish Aravindakshan, the learned counsel appearing for the appellant submitted that he is not assailing the conviction and that the sentence alone is assailed. The submission of the learned counsel is recorded. 3. The appellant has filed a petition, accompanied by an affidavit, as Crl.A.No.4771/2011, seeking an order to receive six documents. The documents are produced in support of the plea that the appellant is suffering from Carcinoma lungs. Document No.1 is a certificate issued from the Amritha Institute of Medical Sciences dated 11.3.2010 certifying that the appellant was suffering from Small Cell Lung Carcinoma and has been under treatment since 1.3.2010 and that he had been undergoing chemotherapy. Document No.2 is a report dated 26.2.2010 of CT Chest (Contrast) with HRCT. The impression certified is right middle lobe collapse and consolidation noted with a focal soft tissue lesion at the hila (? Hilar node). Bronchoscopic assessment was suggested. Document No.3 is a Wholebody Skeletal report dated 1.3.2010. Every system was then found Crl.A.Nos.2113/2114 & 2115/2003 3 normal. Document No.4 is the scan image. Document No.5 dated 5.5.2010 is the 2nd Wholebody Skeletal report. It would show that multiple hot spots in Thorax, Pelvis, Vertebrae, Long Bones & Joints - Suggesting of extensive skeletal metastases (sic) was noticed. The Medical Dictionary meaning of metastasis is the process by which tumor cells are spread to distant parts of the body. Document No.6 is the image on the basis of which Document No.5 was prepared. The learned counsel for the appellant, in the above background, submitted that the appellant suffering Carcinoma spreading to other parts of the body is a sufficient reason to deviate from the minimum sentence prescribed under Section 13(2) of the PC Act. 4. Having heard either side and on an anxious consideration of the documents produced and taking into account of the ailment of the appellant as revealed out by Document No.5, I find that the appellant is entitled to leniency in sentence. It is submitted by the learned counsel for the appellant that the petitioner had already undergone imprisonment for four days and that the amount misappropriated Crl.A.Nos.2113/2114 & 2115/2003 4 by the appellant has been recouped from the account of the appellant and that the Bank had sustained no loss and therefore, no complaint was also filed by the Bank. Cross examination of PW3 would show that the loss sustained to the bank was recouped by adjusting the amount in the account of the appellant. In the above circumstance, I find that the sentence already undergone along with a fine of Rs.50,000/- in each case for offence under Section 13(2) read with13(1)(d) would meet the ends of justice. 5. In the result, the conviction under challenge in all the three cases are confirmed. The sentence is reduced to the imprisonment already undergone with a fine of Rs.50,000/- under Section 13(2) read with 13(1)(d) in each case. In default of payment of fine, the appellant shall undergo simple imprisonment for a further period of six months. (P.S.GOPINATHAN, JUDGE) ps/30/5