MOOT COURT COMPETITION – 2021

SEMESTER: IX

BEFORE THE HON’BLE SUPREME COURT OF INDIA

Criminal Appeal No: 1234 of 2021

Appeal filed under section 379 of Cr.P.C.

IN THE MATTER OF:

MR. CHATUR TRIPATHI ...APPELLANT

Vs.

STATE OF MAHARASHTRA ...RESPONDENT

UPON SUBMISSION TO THE HON’BLE JUDGE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDIA

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

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MEMORIAL FOR RESPONDENT
  TABLE OF CONTENTS

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

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

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

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

Arguments
Advanced.......................................................................... 11-19

Prayer for
Relief.................................................................................. 20-21

 STATEMENT OF JURISDICTION

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MEMORIAL FOR RESPONDENT
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sentenced him to death; (b) or has withdrawn for trial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.

 SYNOPSIS OF FACTS:

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MEMORIAL FOR RESPONDENT
1. Mr. Tripathi is a social specialist cum industrialist
having a decent standing in the general public. He has
different business endeavours, one of which has been in
spotlight of late, getting a great deal of media
consideration since he has presented a venture plot
especially for limited scope financial backers.

2. He welcomed the overall population to put resources

into his organization which tried to go into the
assembling of low-valued/modest advanced cells.
Considering the generosity which he held in the general
public, just as on the lookout, individuals neglect fully
put resources into his organization. His organization got
such a titanic speculation that it made a record in the set
of experiences to have gotten such a huge reaction. He
teamed up with an unfamiliar organization to take
advantage of their creations for assembling low-
estimated/modest smart phones in India.

3. Unfortunately, because of abrupt obnoxiousness in the

connection among India and the country of that
unfamiliar organization, Mr. Tripathi’s organization
couldn't set up the assembling unit to start assembling of
the said smart phones as guaranteed.

4. Apparently, similar brought about reaction from

different other social vivacious people. The sum got by
him was likewise producing a great deal of concern and
consideration simultaneously. Individuals began fighting
external his office, home and manufacturing plants to
request discount, but he neither distributed an assertion
to resolve the issue nor unveiled any appearance to
assume liability. This drove individuals to expect
treachery on his part.

5. Multiple criminal bodies of evidence came to be

recorded against him, which were all coordinated to be
heard together by a Special Judge to be selected for this
benefit.

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MEMORIAL FOR RESPONDENT
6. On the primary date of hearing, Mr. Tripathi showed
up under the watchful eye of the court and said
something on record that he is ready to discount the
entire measure of venture got from individuals however
on a condition that he will not pay any interest upon it
and just the chief sum would be discounted. His assertion
came to be recorded by the court and the case came to be
suspended for consistence of his endeavour.

7. He required the regular gathering of all financial

backers to consent to the endeavour given to the court
and proposed them to sign a receipt and guaranteed that
the course of discount will be started appropriately. They
were additionally educated that the said discount will be
as and via refundable interest in one more foundation of
similar gathering of organizations.

8. The financial backers consented to the proposition

carelessly and marked the receipt/affirmation of unique
venture sum for assembling of low-valued/modest cell
phones.

9. Subsequently, the matter came to be recorded under

the steady gaze of the court wherein Mr. Tripathi
documented a sworn statement alongside the receipts in
regard of discount. The exceptional court acknowledged
the discount receipts and in view of something similar,
bury alia absolved Mr. Tripathi, everything being equal.

10. Immediately after the profession of the judgment by

the extraordinary preliminary appointed authority, the
state moved the Bombay High court under appeal to
challenge the vindication as the equivalent depended on
the sole ground of discount. The Bombay High Court put
away the vindication and sentenced Mr. Tripathi for a
time of 10 years of detainment with fine of Rs.1,000/ -
crores to be recuperated by connection and offer of the
multitude of properties of Mr. Tripathi. The choice of the
court depended on the ground that the discount of
venture sum by Mr. Tripathi couldn't be acknowledged
as the equivalent was colorable.

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MEMORIAL FOR RESPONDENT
11. Considering the sum in question and the residency of
discipline, the High Court allowed pass on to engage the
Supreme Court u/s 379 of Cr.P.C.

12. Soon after his conviction, Mr. Tripathi experienced a

coronary failure which was trailed by his passing.
Promptly from that point, the legitimate beneficiaries of
Mr. Tripathi through his senior child, Mr. Chatur
documented a criminal allure denouncing the request for
conviction of the High Court against the state. Claim is
under the steady gaze of the Supreme Court.

 STATEMENT OF ISSUES:

1. Whether the present appeal is maintainable and

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MEMORIAL FOR RESPONDENT
 whether the legal heirs have locus standi to file
criminal appeal before the Supreme Court of
India?

2. Whether the High Court was just in holding

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 be
disposed of the property for execution?

 SUMMARY OF ARGUMENTS

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MEMORIAL FOR RESPONDENT
ISSUE 1: Whether the present appeal is maintainable and
whether the legal heirs have locus standi to file criminal
appeal before the Supreme Court of India?

The respondents submit that the respondents are aware

of the fact that there are precedents and past orders made
by Hon’ble High courts in which the legal heirs of the
deceased appellant have established their right to have
‘locus standi’ and maintainability regarding the
continuation of criminal appeal in the Hon’ble Supreme
Court. The respondents submit that the respondents
agree with the past decisions of the Hon’ble High courts.

ISSUE 2: Whether the High Court was just in

holding refund of the amount to be ‘colorable’?

The respondents submit that they agree with the

Hon’ble High court to hold the appellant’s
refundable amount to be ‘colorable’. The
respondents submit that the respondents trusted
the appellant with a bona fide intention and the
appellant induced the delivery of the principal
amount through re-investment in other
establishments which under Section 431 of Code of
Criminal Procedure was questioned by the Hon’ble
High court and termed as ‘colorable’.

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MEMORIAL FOR RESPONDENT
ISSUE 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?

Yes, the order of the High Court of Attachment and sale

of all properties of the appellant is to be executed and
legal heirs of the appellant to be Disposed of the property
for execution because punishment of imprisonment
stands abated because the appellant is dead but the
punishment for fine is to be paid by the legal heirs from
the property of the original appellant.

 Body of Arguments

ISSUE 1: Whether the present appeal is maintainable and

whether the legal heirs have locus standi to file criminal
appeal before the Supreme Court of India?

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MEMORIAL FOR RESPONDENT
 1) The respondents submit that the respondents
realise that after the death of appellant the
liability to pay the original investment amount
has shifted from the appellant to the appellant’s
legal heirs. The respondents submit that the
appellant’s sentence of imprisonment of ten
years shall stand abated, however the sentence
of fine for repayment of original investment
amount must be made from the personal
property of the legal heirs of the deceased
appellant and they have substantial interest in
this transaction.
2) The respondents submit that the respondents
are aware of the precedents in which if the legal
heirs of the deceased appellant come on record
to contest the pending appeal, then such leave
had been granted in those precedents. The
respondents submits that the respondents are in
full agreement with the past precedents of the
Hon’ble High courts.
3) The respondents submit that the respondents
are well aware of the past orders of the Hon’ble
High courts where the legal heirs of the
deceased have established their right to have
‘locus standi’ before the Hon’ble bench of High
court by interpretation of Section 394 of the
Code of Criminal Procedure, 1973. The
respondents submit that the respondents are in
agreement with those orders of the Hon’ble
High court.

ISSUE 2: Whether the High Court was just in

holding refund of the amount to be ‘colorable’?

1) Yes, it was just to call the refundable

amount colorable by the Hon’ble High
Court.

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MEMORIAL FOR RESPONDENT
 2) The Respondents submit that the
Appellant had a good reputation and
goodwill among the general public, which
was the reason the respondents put their
trust with a bona fide intention in the
appellant.

3) The respondents submit that the appellant

had used the investment money for setting
up the smart-phone manufacturing plant,
buying the required machinery, hiring
necessary labour, and other required
assets. The appellant planned to exploit
new inventions of a foreign mobile
company to make cheap smartphones by
setting up a manufacturing plant in India.

4) The respondents submit that after the

appellant put monetary efforts of
arranging the necessities for setting up a
mobile manufacturing plant, the
relationship got heated between India and
the foreign mobile company’s origin
country and the mobile company refused
to complete their end of the said deal.
Thus, the appellant incurred heavy losses
as the appellant had used up substantial
investment amount in this process.

5) The respondents submit that the

respondents requested the appellant for
refund of their investment amount as the
appellant could not keep his end of
promise due to certain circumstances. The
appellant did not show up in front of
media and neither did the appellant call
any general meeting with the respondents

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MEMORIAL FOR RESPONDENT
 to address the issue of refund, which the
appellant did do after he showed up before
the special judge.

6) After multiple FIR’s and criminal suits

against the appellant by the respondents,
the appellant agreed to refund the
principal amount by a way of investment
in another establishment in same group of
companies. The respondents with a bona
fide intention put their trust in the
appellant and agreed with the appellant
regarding the mode of payment.

7) The respondent submits that the appellant

was entrusted with the investment amount
of the respondents, was bound by law
according to the signed receipts and
affidavit submitted in the special judge’s
court to pay off the investment amount
which the appellant holds. The
respondents submit that the appellant
dishonestly misappropriated and induced
the delivery of the principal amount by
promising to reinvest the principal
amount’s worth in other establishment of
the same group of companies. However,
according to Section 431 of the Code of
Criminal Procedure,1973 the appellant
ought to have paid the principal amount
by the mode of fine or the mode in which
the appellant received the principal
amount from the respondents, which is as
follows:

Money ordered to be paid recoverable as

fine: Any money (other than a fine)
payable by virtue of any order made under
this Code, and the method of recovery of
which is not otherwise expressly provided

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MEMORIAL FOR RESPONDENT
 for, shall be recoverable as if it were a fine:
Provided that section 421 shall, in its
application to an order under section 359,
by virtue of this section, be construed as if
in the proviso to sub- section (1) of section
421, after the words and figures" under
section 357", the words and figures" or an
order for payment of costs under section
359" had been inserted.

8) The respondents submit that after

incurring a huge loss by the appellant, the
appellant promised the respondents to
refund the principal amount, which was
substantial for the appellant in his financial
condition. The respondent submits that the
appellant has not come before the court
with clean hands and considering the
above facts, it brings the refund amount
into question and it seems colorable in
nature.

9) The respondents humbly submit before the

Hon'ble Supreme Court that the appellant
has breached the respondent's trust by
failing to repay the principal amount
originally invested by the respondent and
according to section 405 of the Indian
Penal Code must be punished, which
reads as under:

 Criminal breach of trust.—

Whoever, being in any manner
entrusted with property, or with any
dominion over property, dishonestly
misappropriates or converts to his
own use that property, or
dishonestly uses or disposes of that
property in violation of any direction

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MEMORIAL FOR RESPONDENT
 of law prescribing the mode in
which such trust is to be discharged,
or of any legal contract, express or
implied, which he has made
touching the discharge of such trust,
or wilfully suffers any other person
so to do, commits “criminal breach
of trust”.

10) The respondent would like to submit

that the appellant had made a promise on
record to refund the principal amount
invested by the respondent, but the
appellant failed to keep this promise. The
respondent would also like to submit that
there was no effort from the appellant to
keep the promise which reflects foul play
and a malicious intent from the appellant.
Thus, the appellant must be punished for
the same under section 420 of The Indian
Penal Code which reads as under :

 Cheating and dishonestly inducing

delivery of property. —Whoever
cheats and thereby dishonestly
induces the person deceived to
deliver any property to any person,
or to make, alter or destroy the whole
or any part of a valuable security, or
anything which is signed or sealed,
and which is capable of being
converted into a valuable security,
shall be punished with imprisonment
of either description for a term which
may extend to seven years, and shall
also be liable to fine.

11) The respondent submits that the

appellant being a social worker and
industrialists must also be punished under
section 409 of the Code of Criminal

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MEMORIAL FOR RESPONDENT
 Procedure,1973 as the appellant falls under
the category of “public servant”, which
reads as under:

 Criminal breach of trust by public

servant, or by banker, merchant or
agent.—Whoever, being in any
manner entrusted with property, or
with any dominion over property in
his capacity of a public servant or in
the way of his business as a banker,
merchant, factor, broker, attorney or
agent, commits criminal breach of
trust in respect of that property, shall
be punished with 1[imprisonment for
life], or with imprisonment of either
description for a term which may
extend to ten years, and shall also be
liable to fine.

ISSUE 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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MEMORIAL FOR RESPONDENT
Yes 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 for execution because in the case of of Ramesan (dead) Vs
The State of Kerela C.R. No. 77 of 2020 the Supreme court which states
that even if sentence of fine is imposed along with the sentence of
imprisonment under Section 431, such appeal shall not abate.

The similar expression, which was used in Section 431, i.e., “except an
appeal from the sentence of fine” has been used in Section 394 Cr.P.C.
Thus, the appeal in the present case where accused was sentenced for
imprisonment as well as for fine has to be treated as an appeal against
fine and was not to abate and High Court did not commit any error in
deciding the appeal on merits.

Respondent submit that as the appellant is dead and the case is now
contested by legal heirs of appellant and the punishment of
imprisonment for appellant is now abate as the appellant is now dead
but the fine is to be collected by legal heirs from the property of
appellant because the legal heirs has the interest in the property

S.C. also said in Ramesan (dead) Vs The State of Kerela C.R. No. 77 of
2020 that the appeal filed by accused Ramesan in the High Court was
not to abate on death of the accused. The High Court rightly did not
direct for abatement of appeal and proceeded to consider the appeal on
merits. The appeal before the High Court being against sentence of fine
was required to be heard against the sentence of fine despite death of
accused-appellant.

The fine as per the provisions of Code of Criminal Procedure is

recoverable from movable and immovable properties of the accused,
Section 421 Cr.P.C. provided as follows:-

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MEMORIAL FOR RESPONDENT
“421. Warrant for levy of fine. - (1) When an offender has been
sentenced to pay a fine, the Court passing the sentence may take action
for the recovery of the fine in either or both of the following ways, that
is to say, it may- (a) issue a warrant for the levy of the amount by
attachment and sale of any movable property belonging to the
offender;

(b) issue a warrant to the Collector of the district, authorising him to

realise the amount as arrears of land revenue from the movable or
immovable property, or both, of the defaulter:

Provided that, if the sentence directs that in default of payment of the

fine, the offender shall be imprisoned, and if such offender has
undergone the whole of such imprisonment in default, no Court shall
issue such warrant unless, for special reasons to be recorded in
writing, it considers it necessary so to do, or unless it has made an
order for the payment of expenses or compensation out of the fine
under section 357.

(2) The State Government may make rules regulating the manner in
which warrants under clause (a) of sub- section (1) are to be executed,
and for the summary determination of any claims made by any person
other than the offender in respect of any property attached in execution
of such warrant.

(3) Where the Court issues a warrant to the Collector under clause (b)
of subsection (1), the Collector shall realise the amount in accordance
with the law relating to recovery of arrears of land revenue, as if such
warrant were a certificate issued under such law:

Provided that no such warrant shall be executed by the arrest or

detention in prison of the offender.”

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MEMORIAL FOR RESPONDENT
Section 70 of Indian Penal Code provides that any part of fine which
remains unpaid may be levied at any time within six years after the
passing of the sentence. The provision further provides that the death
of offender does not discharge from the liability any property which
would, after his death, be legally liable for his debts. Section 70 of the
Indian Penal Code is as follows:-

 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 e for his debts.”

 PRAYER FOR RELIEF

Wherefore, in the light of the facts of the case, issues

raised, arguments advanced and authorities cited, it is
most humbly and respectfully requested that the
Hon'ble Supreme Court of India be pleased to:

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MEMORIAL FOR RESPONDENT
 1. Declare that appellant is liable to pay the fine
through attachment and sale of all properties

&

2. Declare that the decision of the Hon’ble High

Court is just in questioning the refundable
principal amount as ‘colorable’

&

3. Declare that the judgement of the Hon’ble High

Court is to be enforced as it is.
&

4. Declare that the appellant is liable to pay off the

principal amount even after the appellant’s death
through attachment and sale of all properties
of the appellant.

AND / OR
The court may issue any other order as the court deems
fit in the interest of justice, equity and good conscience.
For this act of kindness, the Respondents shall be duty-
bound forever.
All of which is most humbly and respectfully
submitted.

(Respectfully Submitted)
- Counsel on behalf of Respondents.

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MEMORIAL FOR RESPONDENT