Madras High Court
Arunachalam vs State: Rep. By on 3 January, 2019
Author: P. Velmurugan
Bench: P.Velmurugan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.01.2019
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.(MD)No.8 of 2012
Arunachalam ..Petitioner/Appellant/
Sole Accused
Vs.
State: rep. by
Inspector of Police,
Seidunganallur Police Station,
Thoothukudi District.
(Crime No.103 of 2001) ..Respondent/Respondent/
Complainant
PRAYER: Criminal Revision Petition is filed by the petitioner under Sections
397 and 401 of the Criminal Procedure Code, to call for the records of the
Learned Additional Sessions Judge (FTC-I), Thoothukudi in Crl.A.No.73 of
2010 by Judgment, dated 4.10.2011 confirming the conviction and sentence
imposed by the learned Judicial Magistrate, Srivaikundam in C.C.No.39 of
2004 by the Judgment dated 04.09.2010 and set aside the judgments of the
Courts below and acquit the petitioner.
For Petitioner : Mr.S.Deenadhayalan
For Respondent : Mr.S.Bharathi
Government Advocate (Crl.side)
http://www.judis.nic.in
2
JUDGMENT
This Criminal Revision Case is filed to set aside the judgment passed by the Additional Sessions Judge (FTC-I), Thoothukudi in Crl.A.No.73 of 2010, dated 4.10.2011, confirming the conviction and sentence imposed by the learned Judicial Magistrate, Srivaikundam in C.C.No.39 of 2004 by Judgment, dated 04.09.2010.
2.The case of the prosecution is that the revision petitioner/accused was engaged by the defacto complainant for repairing his house and during that time, the accused had stolen a defacto complainant's cheque and forged the cheque. Therefore, the defacto complainant has given a complaint before the respondent police. The respondent police after completing the investigation, filed the charge-sheet before the learned Judicial Magistrate, Srivaikundam. The learned Magistrate after taking the charge-sheet on file in C.C.No.39 of 2004, framed the charges against the revision petitioner under Sections 380 and 465 of IPC. http://www.judis.nic.in 3
3. During trial, the prosecution, in order to prove his case beyond reasonable doubt, has examined the witnesses as P.W.1 to P.W.11 and marked documents Exs.P.1 to P.6, one Material Object was marked as M.O.1 and one Court document was marked as Ex.C1 by the prosecution. When the Trial Court questioned the accused under Section 313(1)(b) of the Code of Criminal Procedure in respect of incriminating evidences available against him, he denied the same as false. On the side of the accused, two witnesses were examined as D.W.1 and D.W.2.
4. The trial Court, after completion of trial and hearing the arguments of both sides and considering the entire facts, found the accused guilty and convicted and sentenced him to undergo three years simple imprisonment and also imposed a fine of Rs.500/-, indefault, to undergo one month simple imprisonment for the offence under Section 380 of IPC and sentenced to undergo two years Simple Imprisonment and also imposed a fine of Rs.500/-, indefault, to undergo one month simple imprisonment for the offence under Section 465 of IPC.
http://www.judis.nic.in 4
5.Aggrieved against the judgment of the learned Judicial Magistrate, the petitioner has filed an appeal before the Additional Sessions Judge, Fast Track Court No.I, Thoothukudi in C.A.No.73 of 2010. The learned Sessions Judge after considering the facts and on hearing the arguments and considering the materials, dismissed the appeal by confirming the conviction and sentence imposed by the trial Court. Against which, the petitioner has filed the present Criminal Revision Case.
6.The learned counsel appearing for the petitioner would submit that the revision petitioner was engaged by the defacto complainant for doing repair work of his house and for the work done by the revision petitioner, he issued a cheque for a sum of Rs.32,000/-. Thereafter, the petitioner presented the cheque for collection and withdraw the amount from the Bank. The defacto complainant has filed a false complaint against him. There are material contradictions from the prosecution witness even the place of the cheque is doubtful. P.W.1 has stated in one place that he kept the cheque in the Hall and in another place, he stated that he kept the cheque in the drawer. He further stated that he kept the un-signed blank cheque and he stated in other place, that he signed the cheque. Therefore, http://www.judis.nic.in 5 it creates a doubt. Therefore, the prosecution has not proved its case beyond reasonable doubt and hence, the benefit of doubt has to be extended to the revision petitioner. Both the courts below have failed to consider the relationship between the parties and also the admission made by the petitioner. Therefore, in these circumstances, the finding of the courts below, is perverse and this Court has to interfere with the judgment of the courts below.
7.The learned Government Advocate (Crl.side) appearing for the respondent would submit that the petitioner was engaged for repairing work but the defacto complainant has not given any cheque. The revision petitioner has stolen the cheque and forged the cheque. The cheque was sent to the handwriting expert's opinion and both the courts below found that the revision petitioner is guilty under Section 380 and 465 of IPC and there is no perversity in the the judgment.
8.I have heard the learned counsel appearing for the petitioner and the learned Government Advocate (Crl.side) appearing for the respondent and perused the entire records.
http://www.judis.nic.in 6
9. The case of the prosecution is that the revision petitioner/accused was engaged by the defacto complainant for repairing his house and during that time, the accused had stolen the defacto complainant's cheque and forged the cheque. Therefore, the defacto complainant has given a complaint before the respondent police. The respondent police after completing the investigation, filed the charge-sheet before the learned Judicial Magistrate, Srivaikundam. The learned Magistrate after taking the charge-sheet on file in C.C.No.39 of 2004, framed the charges against the revision petitioner under Sections 380 and 465 of IPC.
10.While exercising the power the revisional jurisdiction, this Court has to see whether there is any perversity in appreciating the evidence. Both the courts below has appreciated the evidence of P.W.2 and especially, the expert's opinion and the Ex.C1 found that the accused has committed the offence. While exercising the jurisdiction, the revisional Court cannot sit as an appellate Court and re-appreciating the evidence on record. Only the revisional Court has to see whether there is any perversity in appreciation of evidence.
http://www.judis.nic.in 7
11.On a reading of the concurrent judgments, both the Courts have given a concurrent finding. Normally, the revisional Court cannot give any new reasons even that the two views are cannot be taken into consideration. Therefore, the revisional court only has to see the perversity of the finding given by the courts below.
12. A reading of the evidence of P.W.1, it could be seen that it is not in dispute that the cheque belonged to the defacto complainant and the petitioner has presented the cheque for collection and withdraw the amount. Though the respondent examined the defence witness and they have not able to produce any documentary evidence to show that the cheque was given by the defacto complainant to the revision petitioner for the work done by the revision petitioner. Therefore, in these circumstances, in the absence of any documentary proof and substance, this Court cannot take a different view and does not find any perversity. Therefore, there is no merit in the revision petition.
13.When the matter was came up for hearing on 06.12.2018, this Court called for a report from the Probation Officer under Section 360 of http://www.judis.nic.in 8 Cr.P.C., The Probation Officer, after conducting the preliminary enquiry, found that the petitioner is a first offender and it is the first case against him and no other case is pending against him and also recommended him for under Section 4(1) of the Probation of Offenders Act. Therefore, this Court, has no reason to set aside the judgment of the both courts, released the petitioner by invoking under Section 360 of Cr.P.C., and also considering the report of the Probation Officer released the petitioner under Section 4(1) of the Probation of Offenders Act and it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour.
14. With the above discussion, this Criminal Revision Case is partly allowed. No costs.
03.01.2019 Index:Yes/No Internet:Yes/No am http://www.judis.nic.in 9 To
1.The Inspector of Police, Seidunganallur Police Station, Thoothukudi District.
2.The Additional Sessions Judge (FTC-I), Thoothukudi.
3.The Judicial Magistrate, Srivaikundam.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 10 P. VELMURUGAN,J am Crl.R.C.(MD) No.8 of 2012 03.01.2019 http://www.judis.nic.in