Gujarat High Court
Kishan vs State on 29 September, 2008
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
CR.A/192/2010 5/ 5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 192 of 2010 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KISHAN AMARSHIBHAI VASAVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS KRISHNA U MISHRA for Appellant(s) : 1,MR.MRUDULMBAROT for Appellant(s) : 1, MR H L JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 30/01/2012 ORAL JUDGMENT
The appellant - original accused No.7 has filed this Appeal under Section 374 (2) of Cr.P.C. against the Judgment and order of conviction and sentence dated 29.09.2008 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Bhavnagar, in Sessions Case No.258 of 2007, whereby the learned Additional Sessions Judge has held the appellant - accused guilty for the offence under Section 489(B) and 489(C) of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for 7 years with fine of Rs.5,000/- i/d to further undergo RI for 3 months for Section 489(B) and also held the appellants - accused guilty for the offence under Section 489(C) and sentenced him to undergo RI for 5 years with fine of Rs.5,000/- i/d to further undergo RI for 3 months. The learned Judged has also ordered that all the sentence awarded to the accused shall run concurrently.
The brief facts of the case of prosecution are that on the date of incident the complainant along with other police personnel had raided at the house of original accused No.1 and found 65 fake notes of Rs.500/- and 133 fake notes of Rs.100/- and 112 fake notes of Rs.50/- of Indian Currency of total Rs.51,400/-, wherein watermark and thread was not there and the serial numbers of each and every note were same. The complainant and his staff seized printer machine, cartridge of Ink, paper for notes etc. The complainant and his staff also seized other fake notes from other co-accused and from the present appellant-original accused No.7, 18 notes of Rs.500/- and 5 notes of Rs.100/- were seized. The complaint was registered against the accused and other persons with Bhavnagar 'A' Division Police Station which came to be registered as CR No. I -271 of 2007.
Necessary investigation was carried out by the Police and after completion of investigation the charge-sheet against the accused came to be submitted before the Court of learned Magistrate. As the offence under Sections 489(A)(B)(C)(D) read with Section 114 of the Indian Penal Code are exclusively triable by the Court of Sessions, the learned Magistrate committed the said case to the Court of Sessions at Bhavnagar. The learned Additional Sessions Judge framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
To prove the case against the accused the prosecution has examined 22 witnesses and also relied upon documentary evidence and at the end of trial, after recording the statement of the accused under Section 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Additional Sessions Judge held the original accused No.1 and present appellant - original accused No.7 guilty of the offences charged against them and awarded sentence as narrated herein above.
Being aggrieved by and dissatisfied with the aforesaid Judgment and order of conviction and sentence the appellant - accused has preferred this Appeal.
Heard learned advocate Ms. Krishna Mishra, appearing on behalf of the appellant and learned APP Mr. H.L. Jani on behalf of the respondent
- State. I have gone through the Judgment and order passed by the trial Court. I have also considered the documents produced on the record of the case.
Learned Advocate, appearing on behalf of the appellant - accused, has contended that she is not arguing the matter on merit. However, she has contended that learned trial Judge has taken into consideration the oral evidence of witness Vinodbhai and witness Nareshbhai and considered to be established the fact that present appellant has given currency notes of Rs.15,000/- in place of Rs.5,000/-. The trial Court has erred in coming to aforesaid conclusion, relying on the oral evidence of the witnesses. She has further contended that the appellant has undergone more than 4 years imprisonment and looking to the facts of the case some mercy is required to be shown and the sentence which the accused have already undergone may be treated as sentence and the accused may be set at liberty forthwith.
Learned APP has supported the Judgment and order passed by the Sessions Court and contended that looking to the seriousness of offence no interference is required to be called for by this Court.
I have gone through the Judgment and order passed by the learned Additional Sessions Judge and also gone through the documents produced before me. I have also considered the submissions made by the learned Advocates for the parties. Learned Judge has rightly considered the evidence of witness Nareshbhai and witness Vinodbhai and has rightly discussed the evidence of prosecution in Para-89 of the Judgment. Therefore, the reasonings given by the learned Judge are satisfactory and the judgment and order of conviction is required to be confirmed.
Looking to the facts and circumstances of the case and looking to the fact that since last about 4-1/2 years the appellant - accused is in jail, if the sentence already undergone by the appellant - accused be treated as sentence, the same would meet with the ends of justice.
Accordingly, present Appeal is partly allowed. The Judgment and order of conviction dated 29th September, 2008 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.1, Bhavnagar, in Sessions Case No.258 of 2007, is hereby confirmed; however, the judgment and order of sentence dated 29th September, 2008 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.1, Bhavnagar, in Sessions Case No.258 of 2007 is concerned, the same is hereby reduced and modified to the extent of sentence which the appellant has already undergone. The appellant is in jail. He is directed to set at liberty forthwith, if not required in any other case. Rest of the judgment and order dated 29th September, 2008 shall remain unaltered. Record and Proceedings, if any, be sent back to the trail Court concerned.
[Z.K.SAIYED, J.] ..mitesh..
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