- 1 - NC: 2025:KHC:440 CRL.A No. 1069 of 2011 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL No.1069 OF 2011 BETWEEN: 1. SRI G N S SHARMA S/O G.R. NARASHIMAIAH, R/O NO.137, 5TH CROSS, 32ND MAIN, J.P NAGAR, I PHASE, BANGALORE …APPELLANT (BY SRI R NAGENDRA NAIK, ADVOCATE) AND: 1. STATE BY CENTRAL BUREAU OF INVESTIGATION BANGALORE …RESPONDENT (BY SRI P PRASANNA KUMAR, ADVOCATE) THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 20.09.2011 PASSED BY THE XLVII ADDL.C.C. AND S.J. AND SPL. JUDGE FOR CBI CASES, BANGALORE IN SPL.(CORRUPTION) CASE NO.87/2007 CLUBBED WITH SPL.C.C.NO.154/2008 IN SO FAR AS APPELLANT/ACCUSED NO.5 IS CONCERNED. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:440 CRL.A No. 1069 of 2011 ORAL JUDGMENT Heard Sri R.Nagendra Naik, learned counsel for the appellant and Sri P.Prasanna Kumar, learned counsel for the respondents. 2. Accused No.5 in Special (Corruption) Case No.87/2007 who is also accused No.3 in connected Spl. C.C.No.154/2008 on the file of the XLVII Addl. City Civil and Sessions Judge and Spl. Judge for CBI Cases, Bengaluru, who suffered an Order of conviction for the offence punishable under Sections 420 of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs.50,000/-, in default to undergo simple imprisonment for a period of four months, and also to undergo simple imprisonment for a period of two years and to pay fine of Rs.50,000/-, in default, to undergo simple imprisonment for a period of four months for the offence punishable under Section 120B of the Indian Penal Code, and the sentences to run concurrently, is the appellant. - 3 - NC: 2025:KHC:440 CRL.A No. 1069 of 2011 3. Facts in a nutshell for disposal of the present criminal appeal are as under: On the basis of the source of information, the Central Bureau of Investigation, ACB, Bengaluru, registered a case in FIR No.30(A)/03. After thorough investigation, filed the charge sheet against accused Nos.1 to 5 for the offences punishable under Sections 120B, 420, 467, 468 and 471 of the Indian Penal Code and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. 4. Role of the appellant herein as narrated in the charge sheet is to the extent that he stood as guarantor to accused No.2-the main borrower for the loan from the Syndicate Bank. Accused No.1 being the loan clerk of the Syndicate Bank being public servant, did not take necessary precaution and did not adhere to the procedure in sanctioning the loan and based on the fraudulent documents, recommended for the sanction of loan resulting in wrongful loss to the bank and wrongful gain to the accused Nos.1 and 2. 5. After due trial, present appellant was convicted along with other accused persons. - 4 - NC: 2025:KHC:440 CRL.A No. 1069 of 2011 6. It is now submitted on behalf of the appellant by Sri N.Nagendra Naik, learned counsel that, accused No.1 is acquitted, accused Nos.2 and 4 are no more, as against accused No.3 there is a split up charge sheet and therefore, present appellant alone has filed the present appeal against the judgment of the Trial Court. 7. Learned counsel also brought to the notice of the Court that the Order of acquittal of accused No.1 has not been challenged by the prosecution. Therefore, Court may consider the question of setting aside the sentence of imprisonment and fine already paid by the accused may be considered and to that extent, appeal may be allowed. 8. He also pointed out that appellant is now aged 73 years and his wife is bed ridden and she is undergoing dialysis on account of kidney failure and appellant is both physically and mentally weak and if the imprisonment at this distance of time is ordered to be undergone by the appellant, undue hardship would be caused to the appellant. 9. Sri N.Nagendra Naik, learned counsel also pointed out that the role that is assigned to the appellant is only to the - 5 - NC: 2025:KHC:440 CRL.A No. 1069 of 2011 extent of standing as guarantor to the accused and the fraud that has been revealed by the prosecuting agency is the fraudulent document said to have been furnished as security by accused No.2 who is the borrower. Therefore, per se, present appellant has got nothing to do with the alleged fraud and sought for modification of the sentence and to that extent, sought for allowing the appeal. 10. Per contra, Sri P.Prasanna Kumar, learned counsel representing the CBI, supports the impugned judgment by contending that, but for the active participation of appellant standing as guarantor to the loan transaction, the very transaction would not have taken place. Therefore, when the prosecution has invoked Section 120B of the Indian Penal Code, individual overt acts or individual actions or omissions would lose its significance while appreciating the material on record, especially while maintaining the Order of conviction. 11. Insofar as the sentence is concerned, Sri Prasanna Kumar submitted that if the Court takes lenient view in respect of an offence which has been established by prosecution by placing cogent and convincing evidence on record, then it would - 6 - NC: 2025:KHC:440 CRL.A No. 1069 of 2011 encourage similarly placed perpetrators of the crime and therefore, sought for dismissal of the appeal in toto. 12. In view of the rival contentions of the parties, the sole point that arises for consideration is: “Whether the sentence ordered by the learned Trial Magistrate needs modification?” 13. In the case on hand, appellant being the guarantor to the loan whereby bank is put to loss to the tune of more than Rs.75,00,000/- is established by placing necessary material evidence on record. However, allegation leveled against accused No.1 did not get proved and therefore, he was acquitted. Accused No.2 being the main borrower and accused No.4 being another guarantor have died and therefore, order of conviction ended as against them. Accused No.3/Sunitha Krishna is absconding and therefore, split up charge sheet has been filed against her. 14. Accused No.5 has furnished his salary certificate and stood has guarantor for loan transaction and therefore, offence punishable under Sections 420 and 120B of the Indian Penal Code is established is the opinion of the learned Trial Judge - 7 - NC: 2025:KHC:440 CRL.A No. 1069 of 2011 which requires no interference as the same is based on documentary evidence. 15. Now, coming to the question of sentence, learned Trial Judge has ordered simple imprisonment for a period of three years insofar as appellant is concerned apart from imposing fine in a sum of Rs.50,000/- for the offence punishable under Sections 420 of the Indian Penal Code and another sum of Rs.50,000/- for the offence punishable under Sections 120B of the Indian Penal Code. Said fine amount has already been deposited by the appellant. 16. Taking note of the age of the appellant being 73 years as on today and he has got a wife who is suffering from kidney failure and undergoing dialysis, also taking note of the fact that appellant has no criminal antecedents, this Court is of the considered opinion that the sentence of imprisonment ordered by the learned Trial Judge needs to be set-aside by confirming the fine amount. Accordingly, the point raised for consideration is answered in the affirmative. 17. Hence, the following: - 8 - NC: 2025:KHC:440 CRL.A No. 1069 of 2011 ORDER (i) Criminal Appeal is allowed in part. (ii) While maintaining the conviction of the appellant for the offences punishable under Sections 420 and 120B of the Indian Penal Code, imprisonment ordered by the learned Trial Judge for the said offences is hereby set-aside by maintaining the fine amount in all in a sum of Rs.1,00,000/- which has been already deposited. (iii) Ordered accordingly. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 57