Narsinhbhai Manibhai Saija vs State Of Gujarat on 27 February, 2003

[Cites 37, Cited by 0]

Gujarat High Court

Narsinhbhai Manibhai Saija vs State Of Gujarat on 27 February, 2003

Equivalent citations: (2003)4GLR90

1. These three revision applications under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short "the Code") have been filed by three different accused persons who faced their trial before the Trial Court. Their Criminal Appeals have been dismissed by the learned Sessions Judge, Ahmedabad (Rural).

2. The three petitioners herein faced their trial before the learned Additional Chief Judicial Magistrate, Ahmedabad (Rural) at Ahmedabad in C.B.I. case no.3 of 1984. The said Court convicted the petitioners for offences punishable under Sections 420, 467, 468, 477A read with Section 120B of the Indian Penal Code. The Trial Court directed the three petitioners to suffer R.I. for six years for each of the aforesaid offences. The Trial Court also directed that each of the aforesaid petitioners shall pay fine of Rs.5,000/- for each of the aforesaid offences. In default of payment of fine, the petitioners were directed to suffer further R.I. for two months.

3. Feeling aggrieved by the said judgment and conviction order dated 26th July, 1990 the three petitioners preferred three different Criminal Appeals before the Sessions Court at Ahmedabad (Rural). Out of them Criminal Appeal no.50/1990 was preferred by accused - petitioner Bharatbhai Virjibhai Patel, Criminal Appeal no.53/1990 was preferred by accused - petitioner Narsinhbhai Manibhai Saija and Criminal Appeal no.54/1990 was preferred by accused - petitioner Deviprasad @ Dinesh M. Shukla. The learned Sessions Judge, Ahmedabad (Rural) heard the petitioners and by a common judgment and order dated 30th May, 1996 dismissed those appeals and confirmed the judgment and conviction order recorded by the Trial Court. However, the said Court reduced the punishment from six yeas R.I. to four years R.I. for each of the said offences. The rest of the portion of the judgment and order of the Trial Court was confirmed. The learned Sessions Judge also directed that the substantive sentence be run concurrently.

4. As per the case of the prosecution before the Trial Court, petitioner - Deviprasad @ Dinesh M. Shukla was accused no.1 before the Trial Court. It was the prosecution case that at relevant point of time he was working as a record keeper in the State Bank of India. That petitioner - Narsinhbhai Manibhai Saija was working as Assistant in Panchayat and Housing Department. It was the case of the prosecution before the Trial Court that accused no.3 was an Officer working in Bureau of Economics.

5. The prosecution has alleged against the petitioners that all the three petitioners had entered into criminal conspiracy under which, with the aid of one another, accounts were opened in the Bank. Petitioner Bharatbhai Virjibhai Patel had opened an account on 13/03/1982 in Mahesana Branch of State Bank of India in the name of Chandrakant Nagindas Shah. Naturally and necessarily, the allegation was that it was a bank account opened in the fictitious name of Chandrakant Nagindas Shah by petitioner - Bharatbhai Virjibhai Patel. The said bank account was saving bank account no.C.7128. It is alleged that the said petitioner had put signature in the name of Shri C.N. Shah.

6. It was further alleged by the prosecution before the Trial Court that on 16/03/1982 the said petitioner Bharatbhai Virjibhai Patel opened another account in Ahmedabad District Co-operative Bank at Gandhinagar being saving bank account no.359 in the bogus name of Chandubhai Maganbhai Patel. The said petitioner also obtained a cheque book from the said bank and issued cheques on 17/03/1982, 12/04/1982 and 10/05/1982 in different amounts. The said cheques were naturally forged and fabricated in the name of the said account holder. Than those cheques were presented to the State Bank of India, Mahesana Branch on 17/3/1982 and 10/5/1982 under pay-in-slips with signatures in the bogus name of C.N. Shah. It is the case of the prosecution that petitioner - D. M. Shukla was working as record keeper in the Mahesana branch of the State Bank of India. He prepared their credit despatch "cheques register" in his own hands and made a show that the cheques were being sent for clearing to the clearing house but forged cheques were never sent for clearing to the clearing house and, therefore, the cheques were not cleared by the said clearing house. Nevertheless, said petitioner D.M. Shukla prepared false advices and, therefore, the amounts of the aforesaid three cheques were credited in the aforesaid bogus account. Thereafter, N.M. Saija petitioner accused no.2 had opened bogus account in the name of Praful Dashrathlal Mehta as a proprietor of Mahakali Films Distributors. Accused no.3 - Bharatbhai V. Patel credited the cheque of Rs.68,240/- dated 01/06/1982 in the bogus account of C.N. Shah and, thereafter, the said amount was withdrawn. Therefore, these three petitioners had entered into a criminal conspiracy for defrauding and cheating the said bank and false and fabricated bank accounts were opened in the bank concerned and cheques were credited without due process and ultimately, the amounts were withdrawn and misappropriated by the petitioners.

7. On account of the aforesaid F.I.R., investigation was undertaken and chargesheet was filed. The Trial Court had provided police investigation papers to the three petitioners and charge was framed. It was read over and explained to the petitioners. They pleaded not guilty to the said charge and, therefore, evidence was recorded.

8. At the close of the evidence, the learned Magistrate recorded further statements of the three petitioners under Section 313 of the said Code. Thereafter, arguments were heard. Thereafter, the learned Magistrate found that there was sufficient material for convicting the petitioners for the aforesaid offences. Accordingly, the petitioners were ordered to be convicted for the said offences. After hearing them on the point of quantum of sentence, the learned Magistrate, sentenced them as aforesaid.

9. Feeling aggrieved by the said judgment and conviction order of the Trial Court the petitioners preferred the aforesaid three different and separate Criminal Appeals. The learned Sessions Judge, after hearing the learned advocates for the parties, dismissed those three appeals and confirmed the judgment and conviction order of the Trial Court. However, the learned Sessions Judge reduced the quantum of punishment and the learned Sessions Judge also directed that the sentence be run concurrently as aforesaid.

9.1. Feeling aggrieved by the said judgments and orders of two Courts below, the petitioners have preferred these there revision applications before this Court. It has been mainly contended here that both the Courts have fallen in error in convicting the petitioners, that there was no material before the Trial Court to convict the petitioners for the offences in question. That, it has not been proved on record that accounts were falsely opened by the petitioners and there was involvement of the petitioners in the illegal misappropriation of the amounts in question. That there was no material before the Trial Court to show that the present petitioners had committed offences in question and, therefore, the judgments and orders of the two Courts below are illegal and perverse and deserve to be set-aside.

10. The petitioners have, therefore, prayed that the present revision applications be allowed, the judgments and conviction orders recorded by two Courts below may be set-aside and the applicants herein may be ordered to be acquitted of the charge levelled against them.

11. After receiving the revision applications, they were admitted and they were kept for final hearing. The respective revision applications have been argued by the respective learned advocates. Criminal revision application application no.182/96 was argued by Mr.B.M. Mangukia for the petitioner. Criminal Revision Application no.199/96 was argued by Mr.A.D. Shah for the petitioner and Criminal Revision Application no.274/1996 was argued by Mr.B.S. Mishra for the petitioner. So far Central Government is concerned Mr.M.R. Shah has argued the matter on behalf of the respondent - department.

12. Since the revision applications have been separately argued by three different advocates, it would be appropriate to deal with their respective arguments while taking up the concerned revision application. It is required to be stated here that each of the three advocates for the respective applications has restricted his argument touching his respective client only.

13. Criminal Revision Application no.274/1996 has been preferred by original accused no.1 Deviprasad @ Dinesh M. Shukla. This revision application has been argued by Mr.B.S. Mishra for the petitioner. This petitioner was accused no.1 before the Trial Court. It is the case of the prosecution against this petitioner that he was the record keeper in Mahesana Branch of the State Bank of India. That three cheques received by the branch were required to be sent to the clearing house for clearing. That the cheques were not sent to the clearing house for clearing and still false advices were prepare by this petitioner in order to make a show that the cheques were cleared and, therefore, the amount stated in the concerned cheques was required to be credited in the concerned account. Mr.B.S. Mishra has argued the matter to show that this petitioner is not proved to have committed any offence. It is also his argument that the petitioner was simply the record keeper and it is not proved on record that the present petitioner had any dealing in the subject matter in question.

13.1. P.W.1 Arunkumar Pandya Exh. 45 was then working as an Officer in Mehsana Branch of the State Bank of India (S.B.I). On his visit to Gandhinagar Branch of his Bank, he could gather some information about the criminal conspiracy. He immediately inquired about Mr.C.N. Shah (bogus name) at the address on record. He could not trace him out at his residential address. He has proved in his evidence that a cheque of Rs. 10,000/- dated 03/06/1982 was issued by Mahakali Enterprises in favour of this petitioner - accused no.1 - D.M. Shukla. The witness has proved that this petitioner - accused no.1 has signed its back portion. This clearly proves that the said cheque was received by this petitioner from a bogus bank account in the name of Mahakali Enterprises, in favour of this petitioner and this petitioner had received the amount of Rs.10,000/- of the said cheque by signing the reverse part thereof (Exh.51). There is no serious cross examination to this aspect.

13.2. The natural hand writings Exh.52 to 65 obtained by the Investigating Officer during the investigation, from the Bank, have been proved by this witness Arunkumar Pandya at Exh.45. These include handwritings and signatures of this petitioner both in Gujarati as well as in English.

13.3. The handwriting expert - P.W.24 at Exh.184 has compared these natural handwritings, specimen handwritings and disputed handwritings of this petitioner and has rendered opinion that they are all in the handwritings of this petitioner.

13.4. Even P.W. 2 Kanaiyalal Bhogilal at Exh.68 (also from Mehsana Branch of S.B.I.) has proved that the short credit dispatch Register entries are in the hands of this petitioner and he has produced the same at Exh.69.

13.5. P.W. 13 Pravinkumar Yagnik at Exh.137 has proved the handwritings of this petitioner in documents at Exh. 129-130-138. This witness was then working in S.B.I. with this petitioner and hence, could identify his handwritings.

13.6. P.W. 16 Sureshbhai Exh.155 (also in S.B.I., Mehsana with this petitioner) has proved the handwriting of this petitioner at Exh.59.

13.7. P.W. 21 Champaklal at Exh.167 has proved that specimen handwritings of this petitioner were obtained in his presence.

13.8. The evidence of these witnesses clearly establishes an effective link between this petitioner and petitioner - accused no.3 through the money dealings through the cheques from bogus bank account.

13.9. The witnesses have not been effectively cross examined by the learned advocate for this petitioner before the Trial Court. It has not been a case of this petitioner that he was not given a reasonable opportunity to defend his case. In fact, this petitioner was defended by an advocate before the Trial Court as well as before the Sessions Court. He rendered no explanation to the evidence as above against him at any point of time.

13.10. The two Courts were, therefore, justified in placing reliance on the evidence on records against this petitioner in order to hold him guilty of criminal conspiracy with two other petitioners - appellants (before Sessions Court) - accused (before Trial Court).

14. Now it is very clear that it is proved on record that this petitioner - accused no.1 was the record keeper working in the State Bank of India. It is also proved on record that the three cheques were received by the bank and, therefore, they were required to be sent to the clearing house for clearing. The evidence further shows that the cheques had in fact, not been sent to the clearing house. The present petitioner had prepared false advices to show that the cheques were cleared by the clearing house and on account of the said advices the amounts of the said cheques were credited in the bogus account in question. It is also proved on record that those three cheques were missing and they could not be traced out during the course of investigation also.

15. Mr.B.S. Mishra has argued that the petitioner was simply a record keeper and the strangers also used to enter his office and those three cheques could have been mishandled by such strangers. However, so far the advices are concerned, it is proved on record that advises were prepared by this petitioner and on account of advices so prepared and submitted by him, the amounts of the said three cheques were credited in the bogus account in question. Had he not prepared the false advices and had he not submitted them to the concerned branch, the amounts of the three cheques would not have been credited in the bogus account in question. This clearly shows his involvement for the offence in question.

16. There is absolutely no explanation coming from him as to why he prepared the advices though the cheques were not sent for clearance and though they were cleared by the clearing house. Had he not prepared the advices, the amount would not have been credited in the bogus bank account. The Trial Court as well as the Lower Appellate Court both have considered the fact of involvement of this petitioner and as a matter of fact, findings have been recorded by two Courts below that the present petitioner was actually involved in the commission of the criminal conspiracy in question. But for his intervention, the offence could not have been committed by the remaining two petitioners also. His involvement has been established and the findings of the two Courts below have made it clear that it was this petitioner and this petitioner alone who had indulged in the aforesaid illegal practice. These are the findings of fact on appreciation of the evidence. This Court is not required to reappreciate the evidence on questions of fact unless it is found that the findings and reasonings for the said findings of the Lower Court are contrary to the evidence on record. In other words, the petitioner is required to show that the findings and reasonings thereof are perverse and they are against the weight of evidence on record. After hearing the arguments advanced by Mr.Mishra for the petitioner and the learned advocates for the respondents, I am of the opinion, that there was sufficient material before the Court below to come to a finding that this petitioner had entered into a criminal conspiracy with other two petitioners as aforesaid. This being a finding of fact based on evidence it cannot be disturbed in revision application by this Court since the Court cannot reappreciate the evidence on record. In other words, the Trial Court as well as the Appellate Court were justified in holding that this petitioner is proved to have been involved in the criminal conspiracy as has been said by the said two Courts below.

17. Accused no.2 - Narsinhbhai Manibhai Saija is the petitioner in criminal revision application no.182/1996. As stated above, the prosecution has alleged against this petitioner that he had opened a bogus account in the name of "M/s.Mahakali Films Distributors through proprietor Praful Dashrathlal Mehta, in Dena Bank at Mahesana". It is also alleged against this petitioner that he fabricated false and bogus signature as P.D. Mehta, and he himself signed as P.D. Mehta. That when the third accused had issued a cross cheque from a bogus account to Mahakali Films Distributors, this petitioner got the amount credited in the said bogus account and ultimately, had withdrawn the said amount from the said account placing signatures as P.D. Mehta. It is also the case of the prosecution that accused no.3 had issued cheque dated 01/06/1992 in a sum of Rs.68,240/- and the amount was deposited in the bogus account of C.N. Shah in Mahesana branch and accused no.1 had withdrawn the said amount from the said account. Mr.B.M. Mangukia has argued the matter on behalf of this petitioner before this Court. During the course of his argument he has taken me almost through the judgment of the Trial Court and through the important portions of the judgment of the Sessions Court. It is his argument that there was absolutely no evidence on record to connect this petitioner with the crime. It is also his argument that the Trial court had committed illegality in relying upon the evidence of Gaurang Vyas. It is also his argument that this Gaurang Vyas was initially taken as an accused person and doubt was raised that he was also involved in the offence and ultimately he was taken up as a prosecution witness and, through his evidence some fact has been brought on records before the Trial Court and the Trial Court was not justified in relying upon his evidence. It is also the argument of Mr.Mangukia that the State ought to have treated him as approver and, thereafter, his evidence could have been recorded before the Trial Court. That this basic procedure has not been followed and, therefore, the two Courts below have committed illegality in relying upon his evidence.

18. It is very difficult to accept the aforesaid proposition of law as argued by Mr.Mangukia for this petitioner. It is required to be considered that there may be some suspicion against this witness also but nevertheless the witness was a witness. During the course of investigation, his statement was recorded by the Investigating Officer and he was cited as a witness in the chargesheet. His Police statement was supplied to this petitioner. Thereafter, his evidence was recorded before the Trial Court. I am not shown any law to the effect that before a person, suspected of having committed some offence, could be treated to be a witness, he had to be treated as an approver. The petitioner knew what was the status of this witness. The status has not been altered or changed overnight and to the surprise of the petitioner after the trail commenced before the Trial Court, the petitioner knew that Gaurang Vyas was a prosecution witness and that his statement was recorded by the police. The petitioner also knew what the witness knew about the facts in dispute. In that view of the matter, I am not inclined to hold that this witness could not be relied upon as he was not treated approver by the learned A.P.P. in charge of the prosecution. I am also of the view that like other witnesses he was also a witness before the Trial Court. Therefore, there is no illegality committed before the Trial Court in treating and accepting him as a prosecution witness, though he was not treated as approver. Therefore, his evidence cannot be thrown away on the aforesaid consideration.

18.1. The witness - P.W.7 Gaurang Vyas Exh.117 was then a resident of Mahesana. He was a neighbour of accused no.1. He has deposed before the Trial Court that accused no.1 had introduced accused no.2 (this petitioner) to him in 1982. This proves the link between accused no.1 and accused no.2.

18.2. The witness has further deposed that accused no.2 wanted to have a shop for Film Distributorship and, therefore, this witness had shown a shop in his neighbourhood to this petitioner, which was obtained on rent by this petitioner. This witness has further stated to the Trial Court that this petitioner had given the contract of interior decoration of this shop to him which he carried out and this petitioner had paid Rs.15,000/by a cheque of Mahesana Branch of S.B.I. (bogus A/c.) which the witness proved and produced at Exh.118. This also proves the link between this petitioner - accused no.2 and the said bogus bank account.

18.3. This witness has also deposed that on 22/05/1982, this petitioner and one Praful came to Dena Bank for opening saving bank account in the name of Praful. The bank refused to permit opening of such an account and hence he could not open saving bank account in the name of Praful. Then they went to the Nagrik Bank at Mahesana and then an account was opened by this petitioner in the name of Praful. This witness has proved the handwritings and signatures of this petitioner - accused no.2 on those documents at Exh.115, 119 (Bank accounts), 107, 108, 113, 114. This witness has further stated that this petitioner - accused no.2 placed signatures of Praful in his presence in these documents (so that this petitioner could operate this bogus bank account of Praful under his signatures without the aid, assistance or presence of Praful).

18.4. Then the said aspect of the said evidence stands supported by the evidence of P.W.8 Praful Dashrathlal at Exh.120. He was a resident of Kalol in Mahesana District. He has also said that he knew this petitioner - accused no.2 as the in-laws of this petitioner are the residents of Kalol. He has also said that he was unemployed and hence, this petitioner offered him a job on a pay of Rs.400/- per month in Mahakali Enterprises at Mahesana. He has also said that this petitioner had opened his Bank account in the name of Praful Dashrathlal. This witness has also proved the hand writings of this petitioner - accused no.2 in relevant documents. This witness has thus proved the link of this petitioner - accused no.2 with the said Film Distributor and the account.

18.5. P.W.6 Ashokbhai Vadilal Patel at Exh.102 knew even the father of this petitioner - accused no.2. He has deposed that this petitioner - accused no.2 had given him cheques on three occasions for bringing money thereof. That this petitioner had signed those cheques at Exh.103, 104, 105. That he brought money accordingly from the bank account of Mahakali Enterprises and paid it to this petitioner.

18.6. He has also deposed that this petitioner had told him to pay an amount of cheque at Exh.102 to accused no.1 - Mr.D.M. Shukla. Than he went to Mahesana and paid the required money to accused no.1. This evidence of this witness further establishes a closed connection between accused no.1 and accused no.2. Neither accused no.1 nor accused no.2 has explained this evidence of this witness which is also supported by documentary evidence in the shape of these cheques. This evidence also proves connection between the two accused persons and between the petitioner and his bogus bank account.

18.7. The witness has also proved the handwritings and signatures of accused no.2 (this petitioner) in various documents like Identity card at Exh.106, 107, 108 to 112, 113 to 115 116 etc. 18.8. Incidentally, Exh.116 consists of natural handwritings A-15 to A-20. This witness has deposed that these documents A-15 to A-20 (Exh.116 collectively) contain the handwritings and signatures of this petitioner - accused no.2.

18.9. This evidence of this witness did not meet with any serious challenge in cross-examination.

18.10. P.W.9 - Purnendu Madhukar at Exh.124 is a panch witness in whose presence the specimen handwritings of this petitioner were obtained by the Investigating Officer. The witness has produced and proved panchnama and specimen writings at Exh.125 - 126.

18.11. P.W.14 - Ashok Narayandas at Exh.148 from Nagrik Bank, Mahesana has proved that this petitioner - accused no.2 had opened and operated bank account in this Bank and had signed as proprietor of the Mahakali Enterprises.

18.12. P.W.15 - Ramanbhai Patel at Exh.153 is also from Nagrik Bank, Mahesana. He states that he had paid Rs.30,000/- to this petitioner - accused no.2 under a cheque at Exh.110. That payment of cheque at Exh.111 of Rs.3,000/- was also made from bank account no.2336. That payment of cheque at Exh.103 from the said account no.2336 was made by Ashok Patel (P.W.6 at Exh.51) to drawee Dineshbhai Shukla - accused no.1 from the said bank account no.2336. The witness identified accused no.2 as the payee in Court. Yet he was not cross-examined to any extent.

18.13. This evidence of this witness again establishes a closed connection between accused no.1 and accused no.2 and then their closed association with bogus bank account no.2336. It is not possible to keep aside this evidence for holding these two accused nos.1 and 2 not guilty or for holding that they were not the participant in the aforesaid criminal conspiracy.

19. Mr.Mangukia learned advocate appearing for the petitioner - accused no.2 in Criminal revision application no.182/1996 has supplied a list of about 13 citations without supplying the actual citations for being considered by the Court. With a view to see that injustice is not caused to this petitioner, I called for those citations and I discuss them herein below.

19.1. In case of Bhiva v. State of Maharashtra reported in A.I.R. 1963 S.C. 599, the Hon'ble Supreme Court has laid down, while considering the provisions made in Section 133 and 114(b) of the Evidence Act, 1872 that corroboration is necessary to the evidence of approver. As discussed herein above the witnesses in the present case are not approvers and have not been treated as such, and, therefore, this decision will not apply to the facts of the case before us.

19.2. In case of Hanumant v. State of M.P. reported in A.I.R. 1952 S.C 343, the Hon'ble Supreme Court has observed that when there is evidence of witness who is admittedly an accomplice, than it would be necessary for the Court to insists on some sort of corroboration by some other evidence on record. In the present case, the witnesses could not be treated to be the accomplice and they have not been treated as such by the Trial Court as well as by the appellate Court. In fact, the witnesses have not gained anything from the act of offence committed by the three petitioners in this group of revision applications. Any way I am of the opinion, that the witnesses in the present case could not be treated to be accomplice. Their evidence has been discussed at length even by me hereinabove. Therefore, even this decision will not help the present petitioner, It has also been observed in it that the opinion of expert witness a particular letter was typed on a particular machine does not fall within the ambit of Section 45 of the Evidence Act, 1872. I do not have to consider this type of document with respect to the case on hand and, therefore, this decision will not apply to the facts of the case before us. Even otherwise, the witnesses inter-se corroborate one another. Their evidence stands supported by documentary evidence. And moreover, their evidence did not have adequate cross-examination.

19.3. In the case of Sevantilal v. State of Maharashtra reported in 1979 CRI. L.J. 645, the matter relates to confession recorded before the Customs Officer and there it was held that the conviction cannot be sustained therein. Now this is not a point so far our case is concerned. There is no such confession on record.

19.4. A reference has been made to the case of A.B.S.K. Sangh v. Union of India reported in A.I.R. 1981 S.C. 315, but the decision reported there is not applicable to the facts of the case on hand.

19.5. In the case of Laxmi Raj Shetty v. State of Tamil Nadu reported in A.I.R. 1998 S.C. 1274, the observation is to the fact that in cases where evidence is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In the present case, we find that the evidence on record has been substantially of direct nature. The case does not rest solely on circumstantial evidence.

19.6. In the case of State of Bihar v. Kailash Prasad reported in 1961 (2) Cri.L.J. 677, it has been observed that comparison of handwriting as a mode of proof is, at times, hazardous and inconclusive, and specially when it is made by one not conversant with the subject and without such guidance as might be derived from the documents of counsel and the evidence of experts. In fact, in the present case, we find that the handwritings and signatures have been compared by the expert witness who is proved to be an expert through his evidence. He has been in service for more than 17 years doing this job. He has been specially trained for the purpose. He has not met with serious challenge through cross-examination and, therefore, his evidence has remained almost unchallenged and, therefore, there is no question of disbelieving the evidence of handwriting experts. Than the Court can also compare the disputed and admitted handwritings and signatures. However, I do not prefer to shoulder the said burden.

19.7. In the case of Ashish Batham v. State of M.P. reported in (2002) 7 S.C.C. 317, the matter relates to the quantum of punishment and in the present case we find that the petitioners have caused tremendous loss to the bank. One of the bank employee himself has become instrument in the commission of the offences which was a well designed offence. False and fabricated savings bank accounts were opened in fictitious names, cheques were issued from bank account having no cash balance. The cheques were not sent for clearing purpose and advices were obtained through accused no.1 so that the concerned cheque amounts could be credited in the fictitious bank account of other accused person. Then the amounts were withdrawn from that bogus saving bank account. Considering the nature of offences and considering the mode adopted for committing the offences this is not a case wherein the Court can show any further leniency. Even, otherwise, even the Trial Court as well as the appellate Court can be said to have shown mercy and leniency to the petitioners.

19.8. In the case of Mohd. Khalid v. State of W.B. reported in (2002) S.C.C. 334, it has been observed that circumstances proved before, during and after the occurrence should be considered to decide complicity of the accused. Evidence on record has been discussed at length even by me though it was not necessary to do so in revision application and there it has been found that there was a clear link and connection between the three accused persons. This can be gathered from the cheques issued and they were issued from one account and credited in other account and then withdrawal of the amounts from the said bank account. This documentary evidence as well as oral evidence on record clearly establishes that there was a clear connection and link between the three accused persons. The bank account from which the cheques were issued and the accounts in which they were credited - all were bogus in fictitious names.

19.9. In the case of Balu Sonba Shinde v. State of Maharashtra reported in (2002) 7 S.C.C. 543, again the matter relates to the circumstantial evidence. In the present case, we find that the facts involved are substantially proved through oral evidence of the witnesses and their oral evidence has been amply corroborated by overwhelming documentary evidence which cannot be ignored for any moment.

19.10. The case of Ruli Ram v. State of Haryana reported in (2002) 7 S.C.C. 691, is again on the point of quantum of punishment as observed herein above. The two courts have shown leniency to the petitioners. In any way this decision does not help the present petitioners having regard to the nature of offences committed by the petitioners and the mode adopted by them for committing the same.

19.11. The case of Murarilal v. State of M.P. reported in A.I.R. S.C. 581, is again a decision on acceptability of the evidence of an expert witness who may be expert on handwriting subject. As stated above, the disputed documents have been proved even through other witnesses also and, therefore, the evidence of the expert opinion witness has been amply corroborated by the evidence of the witnesses on record. Therefore, even on accepting the principle laid down in this decision, it cannot be of any help to the case said on hand. The two Courts below have taken proper precaution to see that inadmissible evidence is not considered by them.

19.12. The case of Ramkrishnan v. Mohd. Kasam reported in A.I.R. 1973 Bombay 242, again is a decision on the acceptability of the evidence of the handwriting expert. In the present case, as stated above, the evidence of handwriting expert has been corroborated by the witnesses on record and, therefore, the principle enunciated in this decision can be said to have been fully complied with.

19.13. In the case of State of Maharashtra v. Sukhdev Singh reported in A.I.R. 1992 S.C. 2100, the Hon'ble Supreme Court has considered the case wherein there was a failure on the part of the Investigating Officer to hold test of Identification Parade. In the present case, we find that the witnesses have identified the accused persons in the Court and they did not met with any challenge by way of cross-examination. It may be that the witnesses and the accused persons are of Ahmedabad, Gandhinagar and Mahesana and the accused may have all reasons to go to the Bank and, therefore, the Bank Officers could have identified them. There may have occasions to meet in the City. Any way it was for the accused persons to cross-examine the witnesses in order to find out as to what was the reason for the witnesses to identify the accused persons in the Court after some passage of time. When there was no cross-examination to the witnesses it would now be open to the petitioners now in this Court to argue that the witnesses were not in a position to identify the accused persons in Court after some passage of time. It would also be a matter of memory of a particular witness. The witnesses may have occasion to meet the accused persons before the witnesses were required to give evidence before the Trial Court. The accused may have had occasions and reasons to go to the bank, to operate their accounts and, therefore, the accused may have had occasions to meet the Bank Officers also. Therefore, when the factual aspects have not been challenged during the cross-examination it cannot be said that the evidence given by the witnesses is a weak piece of evidence. Even otherwise, the witnesses were required to introduce accused nos.2 and 3 to the concerned bank. Therefore, they might have reasons to see that the accused were either identified as and when occasions may arise. Therefore, even from that angle, it was necessary for the accused persons to cross-examine the witnesses on the point. When the witnesses have not been cross-examined from that angle, it would not be open to the said accused persons now to argue before this Court that the evidence of identification is weak. So far accused no.1 is concerned, he was an employee of the Bank and his master Mr.Pandya himself has identified him and has identified his handwritings and signatures. Therefore, he cannot take this type of defence before this Court.

20. In the aforesaid view of the matter, I am of the opinion that the aforesaid decisions do not support the arguments of Mr.Mangukia for the petitioner that the witnesses are accomplice and, therefore, their evidence should not be accepted, that the evidence on identification is very weak, that the Court cannot pass conviction on the sole testimony of the handwriting expert. Therefore, these arguments are required to be rejected.

21. Than we can turn to the third revision application being Revision Application no.199/1996 filed by one Bharatbhai V. Patel. It has been argued before this Court by Mr.A.D. Shah for the petitioner. So far this matter is concerned, it would be appropriate to deal with the evidence with respect to this petitioner accused no.3 in a brief manner.

21.1. As regards this petitioner - accused no.3, he is alleged to have opened bogus bank account no.C.7128 on 13/03/1982 in the name of C.N. Shah in Mahesana Branch of the State Bank of India and also bogus saving bank account no.359 on 16/03/1982 in the name of C.M. Patel in Gandhinagar branch of the Ahmedabad District Co-operative Bank and obtained cheque book containing cheques nos.747711 to 747720 and issued three cheques no.747714, 747714 and 747712 on 17/03/1982, 12/04/1982 and 10/05/1982 respectively, which were deposited in Mahesana Branch of the State Bank of India on 17/03/1982 and 10/05/1982. These cheques did not go to clearing house, but were cleared and false advices were prepared by accused no.1 - Dinesh M. Shukla as said herein above.

21.2. Preparation of such advices has resulted in false credit entries of these cheques in the said bogus bank account and the holder of this bank account successfully withdrew the said cheques amount.

21.3. These facts clearly establishes the relationship between accused no.1 and accused no.3.

21.4. This petitioner accused no.3 also issued cheque of Rs.65,000/- in favour of Mahakali Film Distributors which was a bogus bank account opened by accused no.2. This establishes close connection between accused no.2 and accused no.3 also which further establishes their connection with the said bogus account.

21.5. Mr.A.D. Shah learned advocate for this petitioner - accused no.3 has argued that the witnesses did not know this petitioner in past and after the alleged episode, they identified this petitioner accused no.3 for the first time in Court after a long passage of time and, therefore, the two Courts below have committed error in accepting this evidence of identification of this petitioner - accused no.3. It is also his argument that the evidence of identification of an accused in Court for the first time after the incident in question is a weak piece of evidence and hence both the Courts should have rejected this evidence.

21.6. Now, it is not illegal to accept such an evidences, if it inspires confidence. Therefore, if a Court accepts such an evidence and relies upon the same, it would not be treated to be an illegal approach of the Court concerned. Once the approach of the two Courts below is not found to be illegal, it would not be legal or proper for this Court to brush aside the said approach and to set at naught the finding of the two Courts below in exercise of revisional jurisdiction.

21.7. P.W.4 Bhupat Sinh at Exh.96 from Gandhinagar Branch of Ahmedabad District Co-operative Bank has deposed on oath that this petitioner - accused no.3 had opened saving bank account in the name of C.M. Patel. The witness identified him in Court as accused no.3. The learned advocate who defended this petitioner - accused no.3 did not at all cross-examine this witness on this point.

21.8. This witness had introduced him to the bank for opening the bogus bank account in the name of C.M. Patel. The witness proved the signatures and handwritings of this petitioner - accused no.3 in application form at Exh.97, at Exh.98 cheque book issued, at Exh.99 document, at Exh.99 passbook, at Exh.100 Register entry. Despite this evidence of this witness, the learned advocate for this petitioner - accused no.3 opted to keep away from cross-examination of this witness. The two Courts below had therefore, no hesitation or difficulty in accepting and relying upon the unchallenged evidence of this witness.' 21.9. P.W.5 Ramanbhai Patel at Exh.101 had introduced this petitioner - accused no.3 to Mahesana Branch of the State Bank of India and has proved relevant documents at Exh.50. This witness also identified this petitioner accused no.3 in Court.

21.10. P.W.8 (1) Amrutlal Chandulal at Exh.121 has proved panchnama at Exh.122 and specimen handwritings of this petitioner - accused no.3 in Exh.123.

21.11. Let us accept the arguments of Mr.A.D. Shah learned advocate for this petitioner - accused no.3 that the identification of accused no.3 in Court for the first time by a witness may be a weak piece of evidence. It was open for the three accused persons to effectively challenge the evidence of the concerned witnesses through appropriate cross-examination. We find that though the three petitioners had their own advocates, by and large, there is almost an absence of an appropriate cross-examination. Some witnesses have not at all been cross-examined by them.

21.12. "What not to ask" is considered to be a good policy decision at times in criminal trials. Here also, it seems that the defence may have a fear that evidence of the prosecution witnesses may get strength from the answers which may be given by the said witnesses to the questions which may be put to them in cross-examination by different lawyers.

21.13. The accused and the witnesses come from Ahmedabad, Gandhinagar and Mahesana. The accused may have had occasion to meet the witnesses at those places or at the concerned banks.

21.14. Anyway, when the evidence of the prosecution witnesses has substantially remained unchallenged on records, then in that event, both the Courts were justified in accepting the said evidence regarding the identity of the three accused persons and in holding that the three accused were really involved in opening bogus bank account in different names and in operating the said accounts in those names and under their signatures. The appreciation of evidence by the two Courts below can, therefore, not be treated to be illegal. Therefore, it would not be open to this Court, exercising revisional jurisdiction to brush aside the concurrent findings of facts recorded by the two Courts below and the reasonings for arriving at the said findings. Particularly, when the findings cannot be treated to have been based on no evidence and that the findings have been recorded by them are against the weight of evidence on records.

21.15. As regards the arguments of Mr.A.D. Shah learned advocate for this petitioner - accused no.3 - that the evidence of opinion of handwriting expert is a weak piece of evidence and it cannot be accepted for convicting the accused unless the said evidence of opinion gets support from other materials on records. We find that the disputed handwritings and signatures of this petitioner accused no.3 have also been proved on records through the unchallenged evidence of P.W.4 Bharat Sinh at Exh.96 and P.W.5 Rameshbhai Patel at Exh.101 also.

21.16. Similarly, the disputed handwritings and signatures of petitioner - accused no.2 have been proved on records through almost unchallenged evidence of P.W.6 Ashokbhai Patel at Exh.102 (referred documents at Exhs.103, 104, 105, 107, 108 to 116). P.W.7 Gaurang Vyas at Exh.117 has proved the disputed handwritings and signatures of this petitioner - accused no.2 at Exh.118, 119, 107, 108, 109, 113, 114 etc. P.W.8 Praful at Exh.120 and P.W.14 Ashok at Exh.148 have proved such handwritings and signatures of this petitioner - accused no.2 in documents at Exh.112 etc. 21.17. As regards petitioner - accused no.1 his handwritings and signatures have been proved even by his own officer Mr.Pandya P.W.1 at Exh.45; P.W.D2 Kaniyalal at Exh.68; P.W.13 Pravinkumar at Exh.137; P.W.16 Suresh at Exh.155 and P.W.21 Champaklal at Exh.167 in documents like at Exhs.52 to 65, 69, 129, 130, 138 etc. 21.18. Thus, we are not required to consider a case based on a sole evidence of opinion of handwriting expert P.W. 24 Narendrasinh at Exh.184. Apart from the absence of a good cross-examination of this witness, his evidence, both oral and in writing has been fully supported by the depositions of the aforesaid prosecution witnesses whose evidence has not met with any serious challenges. Whatever, cross-examination they all were required to face, they have stood the test of cross-examination and their evidence has not been shaken to any extent during the cross-examination, whatever they were made to face.

22. Mr.A.D. Shah learned advocate for this petitioner - accused no.3 has relied upon certain decisions, it may be referred as follows :-

22.1. The case of Dasrathlal v. State of Gujarat reported in A.I.R. 1979 S.C. 1342 is a case wherein accused no.1 forged receipts and collected donations from various persons with the help of accused no.2. There was no evidence to say that accused no.2 was taken into confidence or that he knew that receipts were forged. It was laid down that accused no.2 merely accompanied accused no.1 for collection of donations and, therefore, he could not be held guilty. In the present case, we find that the facts are quite different. The present petitioner has shown his involvement for all purposes including opening of more than one bogus bank accounts in fictitious names. Therefore, his innocence and bona fide cannot be interfered.

22.2. In the case of Dilawar Balu Kurane v. State of Maharashtra reported in 2002 S.C.C. (Cri.) 310. The Hon'ble Supreme Court has observed as under :-

"In exercising powers under Section 227 Cr.P.C., the settled position of law is that the Judge while considering the question of framing the charges under the said Section has the undoubted power to shift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him gave rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 Cr.P.C., the Judge cannot act act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

22.3. In the present case though these are the revision applications, I have tried to refer and to discuss the important pieces of evidence of different witnesses touching the involvement of different accused persons at different stages and connecting them with different documents proved on records.

22.4. In the case of State of Madhya Pradesh v. Mohan Lal Soni reported in A.I.R. 2000 S.C. 2583, it has been laid down that the documents made available by accused during investigation should also be taken into account. In the present case, we find that there is no argument that some documents were produced by the accused persons and they were not taken into account either by the Investigating Officer or by the two Courts below.

22.5. In the case of Hira Lal Panna Lal Mahi v. State of Gujarat reported in 1969 CAR 204 (SC), the Hon'ble Supreme Court has observed that when the conviction for an offence under Section 471 of Indian Penal Code has been set aside than there is no case of false representation made by the accused and, therefore, conviction under Section 420 of Indian Penal Code would not be justified. The facts in the case on hand are quite different and, therefore, the above decision does not apply to the facts of the case before us.

22.6. The case of Alamgir v. State (NCT, Delhi) reported in (2003) S.C.C. 21 relates to opinion of handwriting expert. There, it has been laid down that due caution and care should be exercised while accepting the evidence of the opinion of the handwriting expert. In the present case, we find that the evidence of handwriting opinion has been amply corroborated by other witnesses as referred to hereinabove. Similar is the case with respect to the State of Maharashtra v. Sukhdeo Singh reported in A.I.R. S.C. 2100.

22.7. It is, therefore, clear that even keeping in mind the principles laid down by different High Courts and even by the Hon'ble Supreme Court in the aforesaid cases, I am of the view, that the two Courts below cannot said to have committed any error in convicting the present three petitioners. The Trial Court has considered all pros and cons. Same way, the Lower Appellate Court has also considered all pros and cons. The evidence has been discussed at length by the Trial Court and it was not required to be repeated by the Sessions Court. Any way the evidence on record clearly shows that the appellants had committed criminal conspiracy by opening false saving bank accounts in different banks in fictitious names. The cheques were issued from one account for being credited into other and then the amounts were withdrawn from the said bank account. This shows that without any bank balance in a particular account the three petitioners could successfully operate the bank account and could pick the share of the said amounts through the said process. Therefore, it cannot be said that there was no material before the Court for holding the petitioners guilty for the offences with which they were charged and the the offences for which they have been convicted. Any way the Trial Court as well as the Lower Appellate Court have not committed any error in convicting the three petitioners. After all this is a revisional jurisdiction and the scope of exercising the revisional jurisdiction is very limited. Reappreciation of evidence is hardly permissible. However, looking to the nature of the offences and considering the fact that even the bank employee has also been involved in the offences, I have found it proper to consider the evidence on record and even on such consideration and appreciation thereof, it is not possible for me to accept the arguments of the learned advocates for the petitioners. There is no reason for interfering with the finding of fact recorded by the two Courts below while exercising revisional jurisdiction.

23. It is also proved on records that there was a closed link and connection amongst the three petitioners. Their participation clearly establishes the element of criminal conspiracy. They have forged cheques in fictitious names as a part of the criminal conspiracy. They also cheated the bank. They also created false bank account and committed criminal breach of trust by misappropriating a huge amount of the bank. When all these aspects of allegations have been duly proved through evidence on records, it has to be held that the prosecution has proved all the charges against the petitioners. The two Courts below were right in holding the petitioners guilty. There is no reason to disturb their concurrent findings of facts.

24. In the result, the three revision applications fail as they are without any merit. Consequently, all the three revision applications are ordered to be dismissed. The Judgments and orders of the two Courts below are ordered to be confirmed. The petitioners are on bail, therefore their bail bonds are cancelled and they are ordered to be taken in custody. The matter will be immediately reported and sent to the Trial Court for immediate action of issuing non-bailable warrants against the petitioners so that the petitioners can be arrested and they can serve out remaining sentence. The Trial Court will also issue urgent notices to the sureties so that sureties, in turn, can inform the concerned accused for the purpose of surrendering to the custody for serving out the remaining sentence. Rule is discharged.

[D.P. BUCH, J.] /phalguni/ FURTHER ORDER

25. After pronouncement of the above judgment, the learned Advocates for the two petitioners have addressed this court on the point of quantum of punishment. Mr. A D Shah, learned Advocate for the petitioner in Criminal Revision Application No.199/96 has argued that looking to the passage of time between the date of commission of the offence, date of the first conviction, date of dismissal of the appeal of the petitioner by the Sessions Court and the date of the pronouncement of judgment by this Court, this Court should consider the request of this petitioner about reduction of sentence. It is also submitted by him that this petitioner has lost his job, that he has not earned any benefit out of the amount alleged to have been misappropriated in the present case. That he has old parents of 80 and 75 years respectively, and has two sons - out of them one is still not settled and he is still studying. On the other hand, Mr. B M Mangukia, learned Advocate for the petitioner in Criminal Revision Application No.182/96 has argued that this petitioner has lost his job on account of the conviction, that he has also lost his wife and now he has an adopted son of 14 years who is studying. That he has five daughters and all of them have been married.

26. In support of the aforesaid argument, Mr. A D Shah, learned Advocate has referred certain decisions also. First one is in the case of Shri Durga Dass v. State of H.P., reported in AIR 1973 SC 1379. There it has been observed that when a statute prescribes a minimum sentence for an offence but gives a discretion to the Court to impose a lesser sentence for reasons to be given, the fact that the accused was on bail for a pretty long period (6 years) would be a relevant ground in exercising the discretion to impose a lesser sentence.

26.1. In the case of B C Goswami v. Delhi Administration ( AIR 1973 SC 1459), the Hon'ble Supreme Court has observed in para 10 that in considering the special reasons the judicial discretion of the court is as wide as the demand of the cause of substantial justice.

26.2. In the case of B G Goswami v. Delhi Administration, reported in (1974) 3 SCC 85, Hon'ble the Supreme Court has observed as under:

"(ii) The question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act which is not only harmful to the society of which he forms an integral part of but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and re-claim him as a law-abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh to sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal.

(iii) Where an offence was committed seven years ago and criminal proceedings lasted for more than seven years which caused mental worry and expense and prolonged uncertainty of the result, obstructing the continuity of normal life and the fact that the accused would also lose his job are factors which can be taken into account for reducing the sentence."

26.3. In the case of Bhagwandas Keshwani v. State of Rajasthan, reported in (1974) 4 SCC 611 the Supreme Court has observed in para 13 of the judgment as follows:

"13. It necessarily follows that the charge under section 120B must fail against Keshwani also. Hence, we set aside the conviction and sentence of Bhagwandas Keshwani also under Section 120B IPC. But, we maintain the conviction of Keshwani under section 420 IPC and under section (1)(d) read with section 5(2) of Prevention of Corruption Act, which lays down that the sentence upon a convicted person shall not be less than one year except for special reasons to be recorded in writing. We find that the offences with which Keshwani was charged were committed more than 12 years ago and that he has undergone some rigorous imprisonment also. The cheating with which he was charged was in respect of a petty sum of Rs.31.89. This Court has, sometimes, taken into account the long period for which the sentence imposed may have remained dangling over the head of a convict like the sword of Damocles. Moreover, a period of 12 years is a long time in the course of which the conditions of life and the outlook of a man may have changed entirely. This case has taken so long to decide finally due to no fault of the appellant. Consequently, we reduce the sentences of imprisonment upon Keshwani under section 420 IPC and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act to the period already undergone, but we maintain the fine of Rs.500 imposed upon Keshwani, on each count, and, in default of payment of each fine, he shall undergo a sentence of three months' rigorous imprisonment which will run consecutively. Subject to this modification, the appeal of Bhagwandas Keshwani is hereby dismissed."

26.4. In para 6, the Supreme Court, in the case of N M Parthasarathy v. The State (AIR 1992 SC 988) observed as under:

"While upholding the judgment of the High Court, we are inclined to agree with the learned counsel for the appellant that this is a fit case where benefit of section 360, Criminal Procedure Code be extended to the appellant. The occurrence in this case relates to the period between February, 1967 and February, 1969. The Special Judge, Madras by his judgment dated July 23, 1973 acquitted the appellant. The High Court on April 3, 1980 reversed the trial court and convicted the appellant. This court granted bail to the appellant on April 29, 1980. Mr. Hardev Singh has placed before us documents showing several achievements of the appellant in the industrial field since then. The appellant's industry has manufactured the largest Hot-Air Kiln in India for Ministry of Railways, largest Degreasing plant for Nuclear Fuel complex, Sintering Furnace for anti-tank missiles and various other items for the Ministry of Defence and other Departments of the Government of India. The appellant claims that he has set up 100 per cent export unit with Rs.75 crores export per annum. For all these reasons we are of the view that it is expedient that the appellant be released on probation. We, therefore, direct that he be released on his entering into a bond to the satisfaction of the Special Court, Madras. The Special Court shall pass an order in terms of section 360, Criminal Procedure Code, 1973 to its satisfaction. A copy of this order be sent to the Special Court, Madras immediately. The appellant is directed to appear before the Special Court, Madras within two months from today to enable the Special Court, Madras to pass an order as directed by us. In the event of appellant's failure to present himself before the Special Court as directed he shall undergo the original sentence awarded by the High Court."

26.5. The observations of the Supreme Court in the case of Aditya Nath Pandey v. State of U.P., reported in 2000 SCC (Cri.) 1206, in para 2 may be reproduced as under:

"The allegation against the appellant which has been proved in the case in hand is that he had taken a bribe of Rs.50. The occurrence is of the year 19777 and 23 years have passed in the meantime. The court below in exercise of its power under the proviso to section 5 of the Act has reduced the sentence to six months, but the learned counsel says that in view of the decision of this Court in B G Goswami v. Delhi Admn. which has been reaffirmed and followed in Ramesh Kumar Gupta v State of M.P. the sentence should be reduced to the period already undergone.

In the facts and circumstances of the present case, more particularly, taking into account the fact that the offence itself was committed 23 years back, while upholding the conviction, we direct that the appellant shall be sentenced to the period already undergone and he shall pay a fine of Rs.200, failing which the appellant will undergo sentence for two months."

27. On the strength of the above decisions, M/s. A D Shah and B M Mangukia, both have submitted that the offence was said to have been committed long back and there was a long passage of time in the conduct of trial. Thereafter the appeals were disposed of after a long time, the revision applications are disposed of after a long time, that therefore, considering the aforesaid grounds and considering the delay in disposal of the revision applications, it would be appropriate for this court to exercise jurisdiction for reducing the sentence and may be held that the sentence already undergone may be treated to be sufficient.

28. I have given careful thought to the aforesaid arguments advanced by the learned Advocates for the two petitioners.

So far as the delay is concerned, Mr. M R Shah, learned Standing Counsel for the Central Government appearing for the respondent submits that the petitioner of revision application No.182/96 was found absconding and, therefore, warrant was required to be issued under the order of this court and that took long time. Therefore, also there was delay. On the other hand, Mr. A D Shah, learned Advocate argues for the petitioner in revision application No.199/96 that because of the absence of the said petitioner, the matter could not be taken up and, therefore, there was further delay in disposal of the revision.

29. Therefore, the aforesaid submissions make it clear that the delay could be attributed to at least one of the petitioners. Mr. B M Mangukia, learned Advocate states that there was a communication gap between this petitioner and his Advocate. In that case, the Advocate could have addressed intimation to this petitioner by Registered A.D.post. Any way, the delay cannot be attributed only to the court or only to the prosecution.

30. It is also required to be considered that the petitioners are proved to have committed fraud under which false bank accounts were opened and operated in fictitious names and huge amounts were collected from the bank by issuing cheques and the banks have been defrauded which has been proved on record. Moreover, the banks have not been compensated by the petitioners by re-depositing the amount withdrawn by them. The amounts were withdrawn from fictitious accounts in fictitious names and signatures and the same has been proved on record of the trial court. Therefore, the loss caused to the bank which is a Public Sector bank has not been compensated at any point of time. Therefore, looking to the manner in which the offence has been committed and when the banks have fallen to huge loss, this cannot be treated to be a case appropriate for showing any leniency or mercy. It is also required to consider that the bank which has been defrauded is State Bank of India which is a bank of Public Sector. Therefore, it was public money with respect to which the offence has been committed. The said amount has been pocketed by the petitioners. Mr. A D Shah, learned Advocate argues for one of the petitioners that at least there is no evidence to show that this petitioner has earned anything through this fraud as no amount has gone to his account. This would be an understanding between the three petitioners which would not come on record as to whether the amount illegally withdrawn from the fictitious bank account were actually shared by the petitioners after withdrawing the same from those accounts. Therefore, this is not a fit case for showing any leniency or mercy.

31. It may be observed that when the judgment was pronounced by this court on merit, it was not open to this court to make a change even with respect to the quantum of punishment. However, Mr A D Shah, learned Advocate argued that he could not argue the point of quantum of punishment because he had argued only on the respective merit of the case.

32. It is well established that in a warrantable case, the accused person is entitled to argue on the quantum of punishment after he is declared as guilty. However, no separate hearing is required to be given in appeals against conviction or revisions. Therefore, it is always open to the accused persons or their Advocates to advance arguments with respect to the quantum of punishment even alternatively. If that is not done, the court would not be required to hear the accused persons subsequently after the pronouncement of the judgment on the quantum of punishment. However, since the request was made as soon as the judgment was pronounced, it is being considered. Even considering the facts and circumstances of the case and considering the personal difficulties of the two petitioners also, I do not find this to be an appropriate case for reduction of quantum of punishment. At this stage, Mr. M R Shah, learned Standing Counsel for the respondent argues that so far as the petitioner in Revision Application No.199/96 is concerned, he has never undergone any jail sentence and, therefore, there need not be any order that the punishment already undergone may be treated to be sufficient.

33. In all cases of jail sentences, the families of accused persons do undergo sufferance. There cannot be any dispute on the same. But this aspect is not the only aspect which can be considered by the courts. If this is done, then perhaps no person on earth can be sent to jail for a single day and no person can be deprived of his life even if he commits serious offence of murder under section 302. Any way, I am of the view that these are not the grounds for reduction of punishment. It is moreso when the punishment awarded by the trial court has been reduced by the Sessions Court. At this stage, Mr M R Shah, learned Standing Counsel also argued that even the learned Advocates appearing for the present petitioners before the Sessions Court did not advance any arguments for reducing the punishment and despite the said position, the Session Court, has, by itself, reduced the quantum of jail sentence imposed on the petitioners. In view of the above, I am of the view that there is no case for reduction of quantum of punishment and, therefore, the requests advanced by M/s A D Shah and B M Mangukia, learned Advocates for these two petitioners stand rejected.

34. M/s A D Shah and B M Mangukia, learned Advocates, at this stage state that some time may be given to the petitioners to surrender to the custody. It is true that they did not show any law under which such an order can be passed but they both state that it is a practice of this Court to grant such time to the petitioner to surrender. Mr. A D Shah, learned Advocate states that the petitioner would like to approach the Supreme Court. In that view of the matter, four weeks' time is granted upto 27.3.2003. The matter shall be kept on 28.3.2003 on board to ascertain whether the above order is complied with.

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