L.Selva v. Asokan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:2.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.1443 of 2006L.Selva... Petitioner / Accusedvs.Asokan... Respondent / Complainant Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 9.10.2006 passed by the Principal Sessions Judge,Vellore, in C.A.No.25 of 2006, modifying the order dated8.2.2006 passed by the Judicial Magistrate IV, Vellore, inC.C.No.264 of 2005.For Petitioner : No appearanceFor Respondent : Mr.P.Chandrasekaran O R D E R Animadverting upon the order dated 9.10.2006 passed by thePrincipal Sessions Judge, Vellore, in C.A.No.25 of 2006,modifying the order dated 8.2.2006 passed by the JudicialMagistrate IV, Vellore, in C.C.No.264 of 2005, this criminalrevision case is focussed.2. A 'resume of facts, which are absolutely necessary andgermane for the disposal of this criminal revision case would runthus:(a) The respondent herein filed the complaint under Section138 of the Negotiable Instruments Act as against the revisionpetitioner herein. The revision petitioner entered appearance andcontested the matter. Whereupon, the trial was conducted.(b) During trial, the respondent herein examined himself asP.W.1 along with one Srinivasan as P.W.2 and Exs.P1 to P8 weremarked. The revision petitioner herein examined himself as R.W.1and Exs.R1 to R5 were marked.(c) Ultimately, the trial Court recorded the convictionunder Section 138 of N.I. Act and sentenced the revisionpetitioner herein to undergo one year simple imprisonment and topay a compensation of Rs.29,850/-. https://hcservices.ecourts.gov.in/hcservices/ (d) Being aggrieved by and dissatisfied with the judgement,the appeal C.A.No.25 of 2006 was filed before the PrincipalSessions Judge, Vellore, which Court reduced the substantivesentence of imprisonment from one year to three months and therest of the sentence imposed by the trial Court was confirmed. 3. Challenging and impugning the judgements of both theCourts below, this revision case is focussed on various grounds,the gist and kernal of them would run thus:The Courts below erred in considering the defence in theproper perspective and simply held as against the accused. Theyfailed to see that the complainant in his letter-Ex.D5 dated5.2.2004, assured that he would not present the cheque, but wouldreturn it back after getting his problem solved. As such,without considering the documents relied on by the defence andalso the probabilities of the defence, the matter was disposed ofby both the Courts below. The lower Court also failed toconsider that the complainant falsely denied his signature inEx.D5 and the assistance of hand writing expert was not taken toverify the genuineness of that signature. The Court also couldhave verified it, but it had not done so. The accused sent areply to the complainant's notice as revealed by Ex.D3, despitethat the complainant misused the cheque.4. Inspite of opportunities given to the revisionpetitioner/accused, no one represented him. Heard the argumentsof the learned counsel for the respondent/complainant.The point for consideration is as to whether thereis any perversity or non-application of law on the partof the lower Court in recording the conviction as againstthe accused and imposing the sentence.5. The learned counsel for the respondent/complainant wouldinvite the attention of this Court to the fact that the accusedinstead of complying with the statutory notice issued by thecomplainant, simply veered round and took a plea quiteantithetical to what he committed himself in black and white byhaving a volte face and both the Courts below gave the finding offact based on records, warranting no interference by this Court.He would also submit that this Court, while exercising itsrevisional jurisdiction would be reluctant to interfere with thefinding of fact unless there is any perversity or non-applicationof law on the part of either of the Courts. But in this case,the trial Court discussed threadbare the facts and the evidenceand arrived at the conclusion, which was confirmed by theappellate Court, after once again considering the pros and consof the matter. 6. At this juncture, my mind his reminiscent and redolent ofthe following decisions of the Honourable Apex Court:(i) 2002 Supreme court cases (crl) 1448 - Bindeshwari Prasad https://hcservices.ecourts.gov.in/hcservices/ Singh alias B.P.Singh and Others vs. State of Bihar (nowJharkhand) and another; an excerpt from it would run thus:"13. The instant case is not one where any suchillegality was committed by the trial court. In theabsence of any legal infirmity either in the procedure orin the conduct of the trial, there was no justificationfor the High Court to interfere in exercise of itsrevisional jurisdiction. It has repeatedly been held thatthe High Court should not reappreciate the evidence toreach a finding different from the trial court. In theabsence of manifest illegality resulting in gravemiscarriage of justice, exercise of revisionaljurisdiction in such cases is not warranted.14. We are, therefore, satisfied that the High Court wasnot justified in interfering with the order of acquittalin exercise of its revisional jurisdiction at theinstance of the informant. It may be that the High Courton appreciation of the evidence on record may reach aconclusion different from that of the trial court. Butthat by itself is no justification for exercise ofrevisional jurisdiction under Section 401 of the Code ofCriminal Procedure against a judgment of acquittal. Wecannot say that the judgment of the trial court in theinstant case was perverse. No defect of procedure hasbeen pointed out. There was also no improper acceptanceor rejection of evidence nor was there any defect ofprocedure or illegality in the conduct of the trialvitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjeeand Others vs. State of W.B.and others, an excerpt from it wouldrun thus:"22. The cases cited by the learned counsel show thesettled legal position that the revisional jurisdiction,at the instance of the complainant, has to be exercisedby the High Court only in very exceptional cases wherethe High Court finds defect of procedure or manifesterror of law resulting in flagrant miscarriage ofjustice."7. A bare perusal of those decisions would exemplify anddemonstrate that the High Court, while exercising its revisionaljurisdiction is not expected to interfere with the finding offact arrived at by both the Courts below simply because one otherview is possible or a different view could be taken. 8. What I could understand from the records is that there isone other complaint case instituted by the respondent hereinunder Section 138 of N.I.Act as against the same accused and inthat case also, the trial Court recorded the conviction andimposed the sentence and the appellate Court confirmed the https://hcservices.ecourts.gov.in/hcservices/ findings, whereupon one other Crl.R.C.1445 of 2006 was filed bythe same revision petitioner herein. However, no common orderwas passed by the lower Court in both the matters and thosematters were dealt with separately. Hence, there is no embargofor disposing of this criminal revision case separately.9. On the complainant side, the complaint examined himselfas P.W.1 and relied on as many as eight documents, viz., Exs.P1to P8. It appears the accused examined himself as D.W.1 and inone other C.C.No.263 of 2004 he marked Exs.D1 to D5 and perhapshe relied upon those exhibits as defence documents in this casealso. The lower Court in paragraph No.14, au fait with law andau courant with facts, correctly remarked that during cross-examination under Section 313 of Cr.P.C. the accused in no waydetailed or delineated, explained or expounded anything relatingto Ex.D5 and in fact, Ex.D5 was denied by the complainant. 10. The contention of the accused that Ex.D5 should havebeen sent for expert opinion is neither here nor there. It isnot the complainant, who relied on Ex.D5. But, it is therevision petitioner/accused, who relied on it and as such, theonus of proof was on him to take steps. But there is nothing toindicate that he took steps to take assistance of an expert toprove the purported signature of the complainant in Ex.D5 wasthat of the complaint only. Without admitting but even assumingthat there were some correspondences as in Ex.D5, that clearlyindicates that the cheque was issued for some specific debt orliability and in such a case, it is not open for the accused totry to capitalise his own laches and fault. The fact remainsthat he issued the cheque and to that effect there is a clearfinding by the trial Court. 11. Indubitably and indisputably, incontrovertibly andunassailably, the liability of the accused subsists relating tothe cheque. The complainant discharged his burden of proof bymarking the aforesaid eight documents on his side, but ascorrectly observed by both the Courts below, the accused had notproved his defence. I am fully aware of the fact that anaccused in a criminal case is not expected to prove anything.But in cases of this nature, when the prosecution has succeededin proving the case, the burden got fobbed off on the side of theaccused, even preponderance of probabilities of his defence werenot highlighted during trial, as correctly observed by the lowerCourt and as confirmed by the first appellate Court. Hence, inthese circumstances, I am of the considered opinion that thisCourt can see no perversity or non-application of law in findingthe accused guilty of the offence under Section 138 of N.I.Act. 12. Relating to the sentence is concerned, already the firstappellate Court showed enough leniency in reducing thesubstantive sentence of one year simple imprisonment to threemonths simple imprisonment. Still in view of the fact that the https://hcservices.ecourts.gov.in/hcservices/ cheque itself was for Rs.29,850/- I am of the considered opinionthat the substantive sentence of imprisonment could be reduced totwo months, which would meet the ends of justice and thecompensation awarded by the trial Court and confirmed by theappellate Court is confirmed. 13. The criminal revision case is ordered accordingly. Thetrial Court shall take steps to secure the presence of theaccused and send him to jail to undergo the two months simpleimprisonment, if not already undergone.mskSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Principal Sessions Judge, Vellore.2.The Judicial Magistrate IV, Vellore3.Do Through the Chief Judicial Magistrate, Vellore.+ 1 cc to Mr. P. Chandrasekar, Advocate SR No.28720KSK(CO)SR/14.7.2009 Crl.R.C.No.1443 of 2006