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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 TABLE OF CONTENTS
Index of Authorities...................................................................................................................2
Statement of Jurisdiction............................................................................................................3
Statement of Facts.................................................................................................................. 4-5
Issues Raised..............................................................................................................................6
Summary of Arguments......................................................................................................... 7-8
Arguments Advanced............................................................................................................9-16
Prayer for Relief......................................................................................................................17

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 INDEX OF AUTHORITIES
Bondada Gajapathi Rao v. State of Andhra Pradesh, AIR 1964 SC 1645
Lakshmi Shanker Srivastava v. State (Delhi Administration) (AIR 1979 SC 451)
Ramesan (Dead) Through Lr. Girija vs The State Of Kerala, criminal appeal 77 of 2020

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 STATEMENT OF JURISDICTION
The Hon’ble Supreme court enjoys the right to preside over this matter by virtue of section
379 in chapter XXIX of appeals, of the code of criminal procedure,1973.
379. Appeal against conviction by High Court in certain cases. Where the High Court has, on
appeal, reversed an order of acquittal of an accused person and convicted him and sentenced
him to death or to imprisonment for life or to imprisonment for a term of ten years or more,
he may appeal to the Supreme Court

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 STATEMENT OF ISSUES
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
before the Supreme Court of India?
2. Whether the High Court was just in holding refund of the amount to be ‘colourable’?
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?

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 STATEMENT OF FACTS
1. Mr. Tripathi is a social worker cum industrialist having a good reputation in the 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 in 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 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/acknowledgement of
original investment amount for 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 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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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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 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 just in holding refund of the amount to be ‘colourable’
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?

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 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?
From a plain reading of the section 394(2) of the code of criminal procedure,1973 itself, it is
evident that after 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 death of the appellant
except an appeal from a sentence of fine. Furthermore, the proviso also provides a passage to
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 is of death or of
imprisonment.
The basic feature for providing such option, relating to the sentence of fine is based upon
theme of inheritance as, after 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 realised from the
property possessed by the appellant as per Section 70 of the IPC during his life time 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 just in holding refund of the amount to be
‘colourable’?
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 erroneous view of the law or that his decision is likely to result in grave injustice,
the High 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 offence 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
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 humbly 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

1
AIR 1964 SC 1645

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 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 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 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

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

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

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 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.

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:

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 "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 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 which is not illegal
by illegal means, can also be criminal conspiracy. Here, in this case it cannot be said that
there was any agreement. There is no agreement for doing an act which is not illegal, by
illegal means. Regarding the allegation of conspiracy, it should be noted that that any
details of such conspiracy has not been shown and any details of an agreement to commit
a crime has 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 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 person so put in fear to deliver to any person, any

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 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 investor in fear to deliver money. Therefore, for a
document to be a 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 are 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 hand out a deal to the investors in the
meeting regarding refund of money, were very well know 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 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 take money by way of
inducement or fraud.
10. In 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:

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 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, fine amount imposed on appellant is in excess and decided
keeping in view their financial condition, the magnitude of offence and other relevant
considerations.
3. Further it is submitted that, due to sudden unpleasantness in the relation between India
and the China, 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.
5. Further it is submitted that, the legal heirs who are innocent had to suffer unnecessarily
because of wrongful conviction order passed by 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 sale the property.

PRAYER

It is most humbly and respectfully requested that the Hon’ble Supreme court of India be
pleased to:
1. Declare that the order of the High court to be set aside on the grounds of negligence of
facts

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2. Declare that the decision of the Hon’ble High court was not just in questioning the
refundable principal amount as colourable
3. Declare that the judgement of the special judge of trail 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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