L.Selva v. Asokan

BAIL SLIPThe Appellant/Accused viz., L. Selva S/o. M. Lurdusamy, wasdirected to be released on bail as per order of this Court dated02.01.2007 and made in Crl.M.P.No.1/2006 in Crl.R.C.No.1445/2006 onthe file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 3.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.1445 of 2006L.Selva ..Petitioner/Appellant/Accused vs.Asokan..Respondent/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.24 of 2006, modifying the order dated 8.2.2006passed by the Judicial Magistrate IV, Vellore, in C.C.No.263 of 2005.For Petitioner : No appearanceFor Respondent : Mr.P.Chandrasekaran O R D E RAnimadverting upon the order dated 9.10.2006 passed by thePrincipal Sessions Judge, Vellore, in C.A.No.24 of 2006, modifyingthe order dated 8.2.2006 passed by the Judicial Magistrate IV,Vellore, in C.C.No.263 of 2005, this criminal revision case isfocussed.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 Section 138of the Negotiable Instruments Act as against the revision petitionerherein. The revision petitioner entered appearance and contested thematter. Whereupon, the trial was conducted. https://hcservices.ecourts.gov.in/hcservices/ (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.1 andExs.R1 to R5 were marked.(c) Ultimately, the trial Court recorded the conviction underSection 138 of N.I. Act and sentenced the revision petitioner hereinto undergo one year rigourous imprisonment and to pay a compensationof Rs.56,950/-. (d) Being aggrieved by and dissatisfied with the judgement, theappeal C.A.No.24 of 2006 was filed before the Principal SessionsJudge, Vellore, which Court reduced the substantive sentence ofimprisonment from one year to three months rigourous imprisonment andthe rest of the sentence imposed by the trial Court was confirmed. 3. Challenging and impugning the judgements of both the Courtsbelow, this revision case is focussed on various grounds, the gistand kernal of them would run thus:The Courts below erred in considering the defence in the properperspective and simply held as against the accused. They failed tosee that the complainant in his letter-Ex.D5 dated 5.2.2004, assuredthat he would not present the cheque, but would return it back aftergetting his problem solved. As such, without considering thedocuments relied on by the defence and also the probabilities of thedefence, the matter was disposed of by both the Courts below. Thelower Court also failed to consider that the complainant falselydenied his signature in Ex.D5 and the assistance of hand writingexpert was not taken to verify the genuineness of that signature.The Court also could have verified it, but it had not done so. Theaccused sent a reply to the complainant's notice as revealed byEx.D3, despite that the complainant misused the cheque.4. Inspite of opportunities given to the revisionpetitioner/accused, no one represented him. Heard the arguments ofthe learned counsel for the respondent/complainant.The point for consideration is as to whether there is anyperversity or non-application of law on the part of the lowerCourt in recording the conviction as against the accused andimposing 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 quite antitheticalto what he committed himself in black and white by having a volteface and both the Courts below gave the finding of fact based onrecords, warranting no interference by this Court. He would also https://hcservices.ecourts.gov.in/hcservices/ submit that this Court, while exercising its revisional jurisdictionwould be reluctant to interfere with the finding of fact unless thereis any perversity or non-application of law on the part of either ofthe Courts. But in this case, the trial Court discussed threadbarethe facts and the evidence and arrived at the conclusion, which wasconfirmed by the appellate Court, after once again considering thepros and cons of the matter. 6. At this juncture, my mind his reminiscent and redolent of thefollowing decisions of the Honourable Apex Court:(i) 2002 Supreme court cases (crl) 1448 - Bindeshwari PrasadSingh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand)and another; an excerpt from it would run thus:"13. The instant case is not one where any such illegality wascommitted by the trial court. In the absence of any legalinfirmity either in the procedure or in the conduct of thetrial, there was no justification for the High Court tointerfere in exercise of its revisional jurisdiction. It hasrepeatedly been held that the High Court should notreappreciate the evidence to reach a finding different fromthe trial court. In the absence of manifest illegalityresulting in grave miscarriage of justice, exercise ofrevisional jurisdiction in such cases is not warranted.14. We are, therefore, satisfied that the High Court was notjustified in interfering with the order of acquittal inexercise of its revisional jurisdiction at the instance of theinformant. It may be that the High Court on appreciation ofthe evidence on record may reach a conclusion different fromthat of the trial court. But that by itself is nojustification for exercise of revisional jurisdiction underSection 401 of the Code of Criminal Procedure against ajudgment of acquittal. We cannot say that the judgment of thetrial court in the instant case was perverse. No defect ofprocedure has been pointed out. There was also no improperacceptance or rejection of evidence nor was there any defectof procedure or illegality in the conduct of the trialvitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjee andOthers vs. State of W.B.and others, an excerpt from it would run thus:"22. The cases cited by the learned counsel show thesettled legal position that the revisional jurisdiction, atthe instance of the complainant, has to be exercised by theHigh Court only in very exceptional cases where the High Courtfinds defect of procedure or manifest error of law resultingin flagrant miscarriage of justice." https://hcservices.ecourts.gov.in/hcservices/

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 of factarrived at by both the Courts below simply because one other view ispossible or a different view could be taken. 8. What I could understand from the records is that there is oneother complaint case instituted by the respondent herein underSection 138 of N.I.Act as against the same accused and in that casealso, the trial Court recorded the conviction and imposed thesentence and the appellate Court confirmed the findings, whereuponone other Crl.R.C.1443 of 2006 was filed by the same revisionpetitioner herein. However, no common order was passed by the lowerCourt in both the matters and those matters were dealt withseparately. Hence, there is no embargo for disposing of thiscriminal revision case separately.9. On the complainant side, the complaint examined himself asP.W.1 and relied on as many as eight documents, viz., Exs.P1 to P8.It appears the accused examined himself as D.W.1 and marked Exs.D1to D5. 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 relating toEx.D5 and in fact, Ex.D5 was denied by the complainant. 10. The contention of the accused that Ex.D5 should have beensent for expert opinion is neither here nor there. It is not thecomplainant, who relied on Ex.D5. But, it is the revisionpetitioner/accused, who relied on it and as such, the onus of proofwas on him to take steps. But there is nothing to indicate that hetook steps to take assistance of an expert to prove the purportedsignature of the complainant in Ex.D5 was that of the complaint only.Without admitting but even assuming that there were somecorrespondences as in Ex.D5, that clearly indicates that the chequewas issued for some specific debt or liability and in such a case, itis not open for the accused to try to capitalise his own laches andfault. The fact remains that he issued the cheque and to that effectthere is a clear finding by the trial Court. 11. Indubitably and indisputably, incontrovertibly andunassailably, the liability of the accused subsists relating to thecheque. The complainant discharged his burden of proof by markingthe aforesaid eight documents on his side, but as correctly observedby both the Courts below, the accused had not proved his defence.I am fully aware of the fact that an accused in a criminal case isnot expected to prove anything. But in cases of this nature, whenthe prosecution has succeeded in proving the case, the burden gotfobbed off on the side of the accused, even preponderance ofprobabilities of his defence were not highlighted during trial, as https://hcservices.ecourts.gov.in/hcservices/ correctly observed by the lower Court and as confirmed by the firstappellate Court. Hence, in these circumstances, I am of theconsidered opinion that this Court can see no perversity or non-application of law in finding the accused guilty of the offence underSection 138 of N.I.Act. 12. Relating to the sentence is concerned, already the firstappellate Court showed enough leniency in reducing the substantivesentence of one year simple imprisonment to three months simpleimprisonment. Still in view of the fact that the cheque itself wasfor Rs.56,950/-, I am of the considered opinion that the substantivesentence of imprisonment could be reduced to two months, which wouldmeet the ends of justice and the compensation awarded by the trialCourt and confirmed by the appellate Court is confirmed. 13. The criminal revision case is ordered accordingly. The trialCourt shall take steps to secure the presence of the accused and sendhim to jail to undergo the two months simple imprisonment, if notalready undergone.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarmskTo1. The Principal Sessions Judge, Vellore.2. The Judicial Magistrate IV, Vellore.3. -do- Through The Chief Judicial Magistrate, Vellore.4. The Section officer, Criminal Section, High Court, Madras.+ 1 c.c. to P. Chandrasekar, Advocate. S.R.No.28721. Crl.R.C.No.1445 of 2006PKB (CO)GSK 14.07.2009.