Vinayagamurthi v. The State

The Appellant/Accused-2 namely,Vinayagamurthi, S/o.Arumugam,has already been released on bail in an by order of this Courtdated.14.3.2007 in Crl.Mp.No.1 & 1 of 2007 made in Crl.R.C.Nos.428and 429 of 2007.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:27.07.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.Nos.428 and 429 of 2007Vinayagamurthi ... Petitioner/Accused 2 in both Crl.R.Cs.vs.The Staterep. By the Inspector of Police,District Crime Branch,NagappattinamNagappattinam District. ... Respondent in both Crl.R.Cs.Prayer: Petitions filed under Section 397 and 401 of Cr.P.C. againstthe conviction in judgment made in C.A.Nos.19 and 20 of 2005 on thefile of District and Sessions Judge, Nagappattinam confirming thejudgment of the learned Judicial Magistrate No.I, Nagapattinam inC.C.Nos.565 and 564 of 2003 respectively.For Petitioner : No appearanceFor Respondent: Mr.R.Muniyapparaj,G.A.(crl.side) O R D E RAnimadverting upon the judgment dated 29.09.2006 inC.A.Nos.19 and 20 of 2005 passed by the District and Sessions Judge,Nagappattinam confirming the judgment of the learned JudicialMagistrate Nagapattinam in C.C.Nos.565 and 564 of 2003 respectively,these criminal revisions are focussed. 2. Pithily and precisely, the relevant facts which areabsolutely necessary and germane for the disposal of these revisionswould run thus:(a) The police laid the police report in terms of Section 173 ofCr.P.C. as against three accused persons, namely, Marimuthu,Vinayagamurthy and Sundar, for the offences under Sections 379, 465,467, 468, 471 and 420 r/w 34 IPC.(b) Inasmuch as the accused pleaded not guilty, the trial wasconducted. https://hcservices.ecourts.gov.in/hcservices/ (c) Ultimately, the trial Court convicted all the accused andimposed sentences as under:---------------------------------------------------------------------Case No.Accused Offence Punishment imposed---------------------------------------------------------------------C.C.Nos.A1u/s 379 IPC one year R.I., fine amount of564/03of Rs.500/-, in default toand 565/03undergo two months R.I.U/s 465 IPC six months R.I.U/s 467 IPC three years R.I., fine amountof Rs.2,500/-, in default toundergo six month R.I.U/s 468 IPCTwo years R.I., fine amount of Rs.1,000/-, in default to undergo three months R.I.U/s 471 IPCSix months R.I.U/s 420 IPCTwo years R.I., fine amountof Rs.1,000/-, in defaultto undergo three months R.I.A2u/s 379 Six months R.I.,fine amount r/w 34 IPC of Rs.250/-, in default toundergo one month R.I.U/s 465r/w 34 IPCThree months R.I.u/s 467r/w 34 IPCOn year R.I., fine amount of Rs.1,000/-, in default to undergo three months R.I.---------------------------------------------------------------------Case No.Accused Offence Punishment imposed---------------------------------------------------------------------U/s 468r/w 34 IPCOne year R.I., fine amount ofRs.250/-, in default to undergo one month R.I.U/s 471r/w 34 IPCThree months R.I.U/s 420r/w 34 IPCOne year R.I., fine amountof Rs.250/-, in defaultto undergo one month R.I. https://hcservices.ecourts.gov.in/hcservices/ A3u/s 379r/w 34 IPCSix month R.I., fine amountof Rs.250/-, in default to undergo one month R.I.U/s 465r/w 34 IPCThree months R.I.U/s 467r/w 34 IPCOne year R.I., fine amount ofRs.1,000, in default to undergo three months R.I.U/s 468r/w 34 IPCOne year R.I., fine amount ofRs.250/-, in default toundergo one month R.I.U/s 471r/w 34 IPCThree months R.I.U/s 420r/w 34 IPCOne year R.I., fine amount ofRs.250/-, in default to undergo one month R.I.(The sentences are to runconcurrently and consecutivelyone after another inC.C.No.564/03 and 565/03---------------------------------------------------------------------3. Animadverting upon such judgment of the lower Court, theypreferred C.A.Nos.17, 20 and 29 of 2005 and C.A.No.16, 19 and 30 of2005 respectively and the appellate Court acquitted A1 and A3,however, confirmed the conviction and sentence imposed on A2, whopreferred these revisions on various grounds, the gist and kernel ofthem would run thus:Both the Courts below failed to take into consideration thereality, but delivered the judgments on assumption and presumptionand against the law. Their judgments are perverse and emerged due tonon-application of law. The appellate Court after acquitting A1 andA3 was not justified in confirming the conviction as against A2. Theappellate Court held that the offence as against A1 and A3 was notproved and in such a case, the same view should have been applied inrespect of A2 also.4. Despite printing the name of the learned counsel for therevision petitioner, none appeared. Heard the learned GovernmentAdvocate (crl.side).5. The point for consideration is as to whether there is anyperversity or non-application of law in recording the conviction andimposing the sentence as against A2?6. The gist and kernel, the pith and marrow of the prosecutioncase is that A1 to A3 had the criminal intention to cheat the https://hcservices.ecourts.gov.in/hcservices/ Syndicate Bank and accordingly they had stolen two cheques bearingCheque Nos.578671 and 578695 from the Syndicate Bank ExtensionCounter within the campus of Velankanni Church and filled up thosetwo cheques for a sum of Rs.2,46,000/- and Rs.1,23,000/-respectively, and deposited the same, with the Indian Bank, NagoreBranch, where A2 had his savings account, on 17.08.2001 and28.08.2001 respectively and accordingly, those two cheques wereencashed by A2.7. A plain reading of the judgments of the appellate Court aswell as the trial Court would clearly evince and evidence, expressand expatiate that A2 is the account holder in the Indian Bank,Nagore Branch and only in his account those two stolen cheques weredeposited for collection and accordingly he only withdrew thoseamounts and as such, it is crystal clear that A2 is the beneficiaryand as such, as per Sections 105 and 106 of the Indian Evidence Act,the burden was on him to show that he is not a culprit, but he wouldsimply plead as though he is innocent. No man having head overshoulder would ever be able to digest the theory of the revisionpetitioner. As such, the trial Court as well as the appellate Courtappropriately and apparently, correctly and convincingly, found himguilty of the various offences with which he was charged andaccordingly, he was convicted, warranting no interference by thisCourt.8. There is no assumption and presumption on the part of boththe Courts below in convicting A2. This is a clear case in which A2is beyond all reasonable doubt the culprit and in such a case, Icould see no perversity or non-application of law in the judgments ofboth the Courts below. Regarding sentence aspect is concerned, atthe most he has to undergo substantive sentence of six monthsimprisonment, which is certainly in commensurate with the offencecommitted by him and even I would say that such sentence is on thelower side in the wake of the grave nature of criminal actperpetrated by him. In the result, this criminal revision case is dismissed.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrargmsTo1. District and Sessions Judge, Nagappattinam.2. Judicial Magistrate Nagapattinam.3. -do- Thro' The Chief Judicial Magistrate, Nagapattinam District. Nagapattinam. https://hcservices.ecourts.gov.in/hcservices/

4. The Public Prosecutor, Madras.5. The Inspector of Police, District Crime Branch, Nagapattinam District, Nagapattinam.6. The Superintendent, Central Prison, Nagapattinam.7. The Section Officer, Criminal Section, High Court, Madras.Crl.R.C.Nos.428 and 429 of 2007CKN(CO)EM/22.8.09