MOOT COURT EXAM-2021

SEMESTER IX
BEFORE THE HON’BLE SUPREME COURT OF INDIA

CRIMINAL APPEAL NO.1234 OF 2021

APPEAL FILED UNDER SECTION 379 OF CRPC

IN THE MATTER OF
MR. TRIPATHI …APPELLANT
V/S
STATE OF MAHARASHTRA …RESPONDENT

UPON THE SUBMISSION TO THE HON’BLE JUDGE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDIA

WRITTEN SUBMISSION ON BEHALF OF APPELLANT

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MEMORANDUM OF APPELLANT
  TABLE OF CONTENTS

Index of Authorities...................................................................................................................2

Statement of Jurisdiction............................................................................................................3

Statement of Facts.................................................................................................................. 5-7

Issues Raised..............................................................................................................................8

Summary of Arguments......................................................................................................... 9-10

Arguments Advanced............................................................................................................11-21

Prayer for Relief......................................................................................................................22

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MEMORANDUM OF APPELLANT
  INDEX OF AUTHORITIES

1) Bondada Gajapathi Rao v. State of Andhra Pradesh, AIR 1964 SC

1645

2) Lakshmi Shanker Srivastava v. State (Delhi Administration)

(AIR 1979 SC 451)

3) Ramesan (Dead) Through Lr. Girija vs The State Of Kerala,

criminal appeal 77 of 2020

 STATEMENT OF JURISDICTION

The Locus Standi for the present case is presented in Article 134 in The
Constitution of India, 1949, which states as follows:
134. Appellate jurisdiction of Supreme Court in regard to criminal
matters
(1) An appeal shall lie to the Supreme Court from any judgment, final
order or sentence in a criminal proceeding of a High Court in the
territory of India if the High Court has on appeal
(a) reversed an order of acquittal of an accused person and sentenced
him to death;

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MEMORANDUM OF APPELLANT
(b) or has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the accused
person and sentenced him to death; or

(c) certifies under Article 134A that the case is a fit one for appeal to the
Supreme Court: Provided that an appeal under sub-clause (c) shall lie
subject to such provisions as may be made in that behalf under clause (1)
of Article 145 and to such conditions as the High Court may establish or
require.

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MEMORANDUM OF APPELLANT
  STATEMENT OF FACTS

1. Mr. Tripathi is a social worker cum industrialist having a good

reputation in society. He has various business undertakings, one of
which has been in limelight lately, getting a lot of media attention
because he has introduced an investment scheme, particularly for
small-scale investors.

2. He invited the general public to invest in his company which sought

to enter into the manufacturing of low-priced/cheap smartphones.
Considering the goodwill which he held in the society, as well as in
the market, people thoughtlessly invested in his company. His
company received such a colossal investment that it created a record
in the history to have received such a massive response. He
collaborated with a foreign company to exploit their inventions for
manufacturing low-priced/cheap smartphones in India.

3. Unfortunately, due to sudden unpleasantness in the relation between

India and the nation of that foreign company, Mr. Tripathi’s company
could not establish the manufacturing unit to begin manufacturing of
the said smartphones as promised.

4. Apparently, the same resulted in backlash from various other social

spirited persons. The amount received by him was also generating a
lot of concern and attention at the same time. People started
protesting outside his office, residence and factories to ask for refund,
however he neither published a statement to address the issue nor
made any public appearance to take responsibility. This led people to
anticipate foul play on his part.

5. Multiple criminal cases came to be filed against him, all of which

were directed to be heard together by a Special Judge to be appointed
on this behalf.
6. On the first date of hearing, Mr. Tripathi appeared before the court
and made a statement on record that he is prepared to refund the

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MEMORANDUM OF APPELLANT
 whole amount of investment received from the people but on a
condition that

7. he shall not pay any interest upon it and only the principal amount
would be refunded. His statement came to be recorded by the court
and the case came to be adjourned for compliance of his undertaking.

8. He called for the general meeting of all investors in order to comply

with the undertaking given to the court and proposed them to sign a
receipt and promised that the process of refund shall be initiated
accordingly. They were also informed that the said refund shall be as
and by way of refundable investment in another establishment of the
same group of companies.

9. The investors agreed to the proposal in haste and signed the

receipt/acknowledgment of the original investment amount for the
manufacturing of low-priced/cheap smartphones.

10.Subsequently, the matter came to be listed before the court wherein

Mr. Tripathi filed an affidavit along with the receipts in respect of
refund. The special court accepted the refund receipts and based on
the same, inter alia acquitted Mr. Tripathi of all charges.

11.Immediately after the pronouncement of the judgment by the special

trial judge, the state moved the Bombay High court under appeal to
challenge the acquittal as the same was based on the sole ground of
refund. The Bombay High Court set aside the acquittal and convicted
Mr. Tripathi for a period of 10 years of imprisonment with fine of Rs.
1,000/-crores to be recovered by attachment and sale of all the
properties of Mr. Tripathi. The decision of the court was based on the
ground that the refund of the investment amount by Mr. Tripathi
could not be accepted as the same was colorable.
12.Considering the amount involved and the tenure of punishment, the
High Court granted leave to appeal to the Supreme Court u/s 379 of
Cr.P.C.

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MEMORANDUM OF APPELLANT
13.Soon after his conviction, Mr. Tripathi suffered a heart attack which
was followed by his death. Immediately thereafter, the legal heirs of
Mr. Tripathi through his elder son, Mr. Chatur filed a criminal appeal
impugning the order of conviction of the High Court against the
state.

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MEMORANDUM OF APPELLANT
  ISSUES RAISED

Issues that are presented via the appeal before the Hon’ble Supreme
court for discussion and
adjudication are as follows;
1. Whether the legal heirs of the deceased accused have locus standi to
file a criminal appeal and whether it is maintainable before the
Supreme Court of India?

2. Whether the High Court was justified in holding a refund of the

amount to be ‘colorable’?

3. Whether the order of the High Court of attachment and sale of all
properties of Mr. Tripathi is to be executed and legal heirs to be
disposed of the property?

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MEMORANDUM OF APPELLANT
  SUMMARY OF ARGUMENTS

1. Whether the legal heirs of the deceased accused have locus standi
to file a criminal appeal before the Supreme Court of India and
whether it is maintainable?
According to section 394(2) of the code of criminal procedure,1973
itself, it is evident that after the death of the accused the appeal would
abate. In likewise manner, every other appeal under this Chapter is also
to meet with similar fate after the death of the appellant except an
appeal from a sentence of fine. Furthermore, the proviso also provides a
passage to the near relative of the appellant to be substituted if so,
prayed for within thirty days to grant leave to continue with the appeal
where the conviction and sentence are of death or of imprisonment.
The basic feature for providing such option, relating to the sentence of
fine is based upon the theme of inheritance as, after the death of the
appellant, the property having left by him is to devolve upon his lineal
descendants and, the sentence of fine is to be realized from the property
possessed by the appellant as per Section 70 of the IPC during his
lifetime and so, the near relatives have got a say against the judgment of
conviction and sentence confined to fine and so, substitution is to be
carried out in case so prayed for.

2. Whether the High Court was justified in holding a refund of the

amount to be ‘colorable’?
It is true that the powers of the High Court in considering the evidence
on record in appeals are as extensive as its powers in appeals against
convictions but that court at the same time should bear in mind the
presumption of- innocence of accused persons which presumption is not
weakened by their acquittal. It must also bear in mind the fact that the
special judge had found them not guilty. Unless the conclusions reached
by him are substantially wrong or based on an erroneous view of the
law or that his decision is likely to result in grave injustice, the High

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MEMORANDUM OF APPELLANT
Court should be reluctant to interfere with his conclusions. If two
reasonable conclusions can be reached on the basis of the evidence on
record, then the view in support of the acquittal of the accused should
be preferred. The fact that the High Court is inclined to take a different
view of the evidence on record is not sufficient to interfere with the
order of acquittal. The appellant had submitted both documentary and
oral evidence to the special judge and after consensus of the court only
the appellant was acquitted

3. Whether the order of the High Court of attachment and sale of all
properties of Mr. Tripathi is to be executed and legal heirs be
disposed of the property for execution?
The special judge as recorded did not disclose the offense of cheating;
there was nothing in the case to suggest that the appellant had a
dishonest or fraudulent intention and that the complaint recites a purely
commercial transaction. Indiscriminate imposition of fines without due
regard to the capacity of the accused to pay only result in the waste of
the time of the Court and the police in attempting to realize the
amounts, in the harassment of the convict or his dependents, or in the
vicarious payment of the fine by persons interested in the convict.

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  DETAILED PLEADINGS

A. Whether the legal heirs of the deceased accused have locus standi to
file a criminal appeal before the Supreme Court of India and whether
the appeal is maintainable?

1. The legal heirs have locus standi under (2)Section 394 of the 1973
Code reads 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."
2. In Bondada Gajapathi Rao v. State of Andhra Pradesh 1, the
Supreme Court held, interpreting Section 431 of the Code of Criminal
Procedure 1898, that where the sentence is not one of fine but of
imprisonment, which on the death of the accused becomes

1
AIR 1964 SC 1645

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MEMORANDUM OF APPELLANT
 infructuous, the sentence does not affect the property of the
deceased-accused in the hands of his legal representatives, and
therefore, the appeal, in such a case, would abate, upon the death of
the accused. In so far as personal punishment (other than a fine) is
concerned that stands dissolved by the death of the offender and an
appeal to get that punishment set aside becomes infructuous and
abates.
3. It is submitted before the Hon’ble Supreme court that, the present
case would, therefore, be governed by sub-section (2) of Section 394,
Criminal PC. It becomes clear from the proviso to Section 394 (2),
CrPC that where the appeal is against the conviction and sentence of
imprisonment and the appellant dies during the pendency of the
appeal, any of his near relatives may, within the time prescribed
therein, apply to the Appellate Court before which the appeal is
pending for leave to continue the appeal and if the leave is granted
the appeal shall not abate. The appellant has preferred the appeal
against his conviction and sentence of imprisonment as also sentence
of fine. After his death his near relations as contemplated in the
Explanations to sub-section (2) of Section 394, CrPC applied by
Criminal Miscellaneous Petition No.1234 to continue the appeal and
this Court granted substitution of such near relations and thereby
granted leave to continue the appeal. Therefore, the near relations of
the deceased can continue the appeal and even if the respondent State
concedes that the sentence of fine be set aside yet the appeal would
not abate because the appeal against conviction and sentence of
imprisonment would not abate if leave is granted to the near relations
of the deceased to continue the appeal. Such leave having been

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 granted, the appeal would not abate. There is thus no merit in the
preliminary objection and it must be negatived.2

4. Further it is submitted that the Law Commission of India in its 41st

Report recommended for such an amendment to be made. Those

steps resulted in the present Section 394 of the Code of Criminal
Procedure 1973 with the proviso and Explanation therein. An appeal
against conviction as provided in sub-section (2) of Section 394 would
finally abate on the death of the appellant unless the near relatives
make an application to the Appellate Court for leave to continue the
appeal as provided in the proviso to sub-section (2) of Section 394.

5. Further it is submitted that, the expression "and if leave is granted,

the appeal shall not abate" occurring in the last portion of the proviso
to Section 394(2) makes the position clear. Unless the near relatives
move the Appellate Court for leave to prosecute the appeal, nothing
on the merits need be considered by the Appellate Court on the death
of the appellant in an appeal of the nature referred to in sub-section
(2) of Section 394. In such cases, the appeal would abate which has
the result of the trial court judgment being in effect. However, the
sentence of imprisonment cannot be executed, since the appellant is
no more. That is not a ground to hold that in spite of the near
relatives not moving the Appellate Court for leave to prosecute the
appeal, the Appellate Court is bound to consider the appeal on the
merits when fine also forms part of the sentence of imprisonment.
6. An appeal was filed by the first accused Ramesan in the High Court
Being Criminal Appeal No. 254 of 2007 on 06.02. 2007.After filing of

2
Lakshmi Shanker Srivastava v. State (Delhi Administration) (AIR 1979 SC 451)

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MEMORANDUM OF APPELLANT
 the appeal, the appellant Ramesan died on 21.12.2007. The High
Court noticed the factum of death of the appellant on 21.12.2007,
however, proceeded to decide the appeal on merits referring to the
principle under Section 394 Cr.P.C. In this case the high court said
that the accused appeal was not to abate and was required to be
heard and decided on merits but there is one aspect of hearing of the
appeal before the High Court, which need to be noted. High Court
notices that, it does not appear that after the death of the appellant-
accused, his legal heirs were given opportunity to proceed with the
appeal against the sentence of fine. The judgment of the High Court
does not also mention that any counsel has appeared for the legal
heirs. The High Court ought to have given an opportunity to legal
heirs of the accused to make their submissions against the sentence of
fine, which fine could have been very well recovered from the assets
of the accused in the hands of the legal heirs. High Court gave an
opportunity to the legal heirs of the accused to make their
submissions against the sentence of fine.3

7. It is further submitted before the Hon’ble court that, the appeal is

maintainable under section2(a) of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970 read with section 394(2) of
Cr.pc.

8. Section 2 of the Act of 1970 reads thus:

Enlarged appellate jurisdiction of Supreme Court in regard to

criminal matters. Without prejudice to the powers conferred on the
Supreme Court by clause (1) of Art. 134 of the Constitution, an appeal
3
Ramesan (Dead) Through Lr. Girija vs The State Of Kerala

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 shall lie to the Supreme Court from any judgment, final order of
sentence in a criminal proceeding of a High Court in the territory of
India if the High Court-

(a) has an appeal reversed an order of acquittal of an accused person

and sentenced him to imprisonment for life or to imprisonment for a
period of not less than ten years;

(b) has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the
accused person and sentenced him to imprisonment for life or to
imprisonment for a period of not less than ten years."

Section 394 of Cr. pc read thus:

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.

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B. Whether the High Court was just in holding refund of the amount to
be ‘colourable’?

1. The state moved the Bombay High court under appeal to challenge
the acquittal as the same was based on the sole ground of refund. The
Bombay High Court set aside the acquittal and convicted Mr.
Tripathi for a period of 10 years of imprisonment with fine of Rs.
1,000/- crores to be recovered by attachment and sale of all the
properties of Mr. Tripathi. The decision of the court was based on the
ground that the refund of investment amount by Mr. Tripathi could
not be accepted as the same was colorable. Mr. Tripathi was
convicted under section 120A of IPC.
2. 'Criminal conspiracy' is defined under Section 120-A IPC as follows:
"S.120-A. Definition of criminal conspiracy. -- When two or more
persons agree to do, or cause to be done, --
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act besides
the agreement is done by one or more parties to such agreement in
pursuance thereof.
Explanation. --It is immaterial whether the illegal act is the ultimate
object of such agreement, or is merely incidental to that object.
3. It is submitted before the court that, bare reading of section 120-A
IPC reveals that to constitute the offence of criminal conspiracy, there

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 must be an agreement between two or more persons. Such agreement
must be, to do or cause to be done, a particular act or acts of the
nature specifically referred to in the said section. Such acts may be
either illegal as stated in sub-clause (1) of section 120-A IPC or, it may
not be illegal. If such act is not illegal by itself, sub-clause (2) of
section 120-A IPC requires that such act is to be done or caused to be
done, by illegal means.
4. Further it is submitted that, apart from all the above, the details of the
so- called conspiracy have not been furnished. What was the offence
for which allegedly the conspiracy was hatched has also not been
revealed. In order to attract Section 120B IPC, there should be a
criminal conspiracy within the meaning of Section 120A IPC. Such a
conspiracy can be there only when two or more persons agree to do
or caused to be done an illegal act. As per Section 120A (2) IPC, an
agreement to do an act that is not illegal by illegal means can also be a
criminal conspiracy. Here, in this case, it cannot be said that there
was any agreement. There is no agreement for doing an act that is not
illegal, by illegal means. Regarding the allegation of conspiracy, it
should be noted that any details of such conspiracy have not been
shown and any details of an agreement to commit a crime have also
not been shown.
5. Further it is submitted that, as far as allegation regarding section 383
IPC is concerned, it is submitted before the court that there is the
necessity to extract Section 383 IPC in toto, particularly the
illustrations (a) to (d), but for the substance of the main section
speaks, whoever intentionally puts any person in fear of any injury to
that person, or to any other, and thereby dishonestly induces the

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 person so put in fear to deliver to any person, any property or
valuable security or anything signed or sealed which may be
converted into a valuable security, commits 'extortion'.
6. It is humbly submitted before the court that in the name of valuable
security(money) the appellant never had put any of the investors in
fear to deliver money. Therefore, for a document to be valuable
security it must create, extend, transfer, restrict, extinguish or release
any legal right, or by the said document a person must acknowledge
that he lies under legal liability or has not a certain legal right. In the
present case, there was no prima facie evidence submitted to both
special judge and Hon’ble high court. Therefore, it is submitted
before the court that the allegation under section 383 IPC is false and
vexatious.
7. It is further submitted that there is no meaning in alleging that the
petitioner had forcibly taken consent from the investors. It is common
knowledge that the investors, who got the recommendation from the
appellant, who had handed out a deal to the investors in the meeting
regarding the refund of money, very well knew of the fact what the
appellant was asking for. There is no allegation that the petitioner has
suppressed the facts in the affidavit given in the court.
8. It is further submitted that the allegation under Section 415 IPC it is
evident that in the definition of 'cheating' two separate classes of acts
are set forth, which the person deceived may be induced to do. A
person may be induced fraudulently or dishonestly to deliver any
property to any other person, which constitute the first class of act
and the second class of act is the doing or omitting to do anything
which the person deceived would not do or omit to do if he were not

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 so deceived. To come within the definition of 'cheating', in the first
class of cases, the inducement must be fraudulent or dishonest, but in
the second class of acts the inducement though must be intentional
but may not fraudulent or dishonest.
9. If any of the requirement is fulfilled then a person can be said to have
committed the offence of 'cheating' within the meaning of Section
415, which necessarily does not relate to the conclusion that for the
purpose of constituting the offence of 'cheating'. It is submitted before
the court that the appellant had not tried to make money by way of
inducement or fraud.
10.It is humbly submitted before the court that the appellant never had
mala fide intention to wrongfully induce or cheat the respondents.

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C. Whether the order of the High Court of attachment and sale of all
properties of Mr. Tripathi is to be executed and legal heirs be disposed
of the property for execution?

1. It is submitted before the court that, even after adding all the offences
under which appellant was convicted that doesn’t amount to 10 years
of imprisonment. It is further submitted that while applying sentence
of fine, the Hon’ble high court had levied the fine in excess and it is
contradictory under section 63 of IPC. Section 63 of IPC read thus:
63. Amount of fine. —Where no sum is expressed to which a fine may
extend, the amount of fine to which the offender is liable is unlimited,
but shall not be excessive.
2. Further it is submitted that the fine amount imposed on the appellant
is in excess and decided to keep in view their financial condition, the
magnitude of the offense, and other relevant considerations.
3. Further it is submitted that, due to sudden unpleasantness in the
relation between India and the Foreign company, the appellant’s
company could not establish the manufacturing unit to begin
manufacturing of the said smartphones as promised. It is submitted
that even after suffering loss himself, the appellant had shown
sympathy and had compensated the small investors.
It is further submitted that the Hon’ble Supreme court must show
some sympathy by acquitting the appellant of false charges put forth
by the Hon’ble High court.
4. Further it is submitted that the appeal is still pending in the Hon’ble
Supreme court to be decided on merits. It is further submitted that
the Hon’ble high court should grant stay on attachment and sale of
property till the case is not decided on merits.

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5. Further it is submitted that, the legal heirs who are innocent had to
suffer unnecessarily because of wrongful conviction order passed by
the High court. It is further submitted that the appellant estate is only
the source of income left with legal heirs and it would be unjust to
take away, attach, and sell the property.

 PRAYER

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 Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Appellant humbly pray before this
Hon’ble Court that it may be pleased to adjudge and declare that:

1. Declare that the order of the High court to be set aside on the
grounds of negligence of facts
2. Declare that the decision of the Hon’ble High court was not just in
questioning the refundable principal amount as colorable
3. Declare that the judgment of the special judge of trial court to be
enforced as it is
4. Declare that the legal heir’s property should not be attached and no
sale and execution proceedings should be carried on.
5. The court may issue any other order as the court deems fit in the
interest of justice, equity, and good conscience.

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