Animadverting upon the judgment dated 28.3.2007, passed by the II Additional Sessions Judge at Pondicherry in Crl.A.No.30 of 2003, confirming the judgment dated 21.7.2003 passed by the learned Judicial Magistrate No.1, Pondicherry in STR No.5778 of 2000, this criminal revision is focussed.
2. Tersely and briefly, pithily and precisely the relevant facts which are absolutely necessary and germane for the disposal of this revision would run thus:
(a) The respondent herein filed the complaint under Section 138 of the Negotiable Instruments Act as against the revision petitioner.
(b) Inasmuch as the revision petitioner pleaded not guilty, trial was conducted. During trial, on the prosecution side, P.Ws.1 to 3 were examined and Exs.P1 to P7 were marked. On the defence side, D.Ws.1 and 2 were examined and Exs.D1 to D4 were marked.
(c) Ultimately, the trial Court found the accused guilty, and sentenced him to undergo punishment as under:
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3. Animadverting upon such judgment of the lower Court, C.A.No.30 of 2003 was filed for nothing, but to be confirmed by the appellate Court in all aspects.
4. Challenging and impugning the judgments of both the Courts below, this revision has been filed on various grounds, the warp and woof of them would run thus:
5. Both the Courts below fell into error in not considering the fact that pre litigation notice was not served on the revision petitioner. In Ex.P1, cheque, only the signature of the accused is found and the body of it was filled up by somebody else.
6. Despite printing the name of the learned counsel for the revision petitioner, none appeared. However, the learned counsel for the respondent argued the matter.
7. The point for consideration is as to whether there is any perversity or non-application of law in recording the conviction and imposing the sentence by both the Courts below?
8. The learned counsel for the respondent would appositely and appropriately invite the attention of this Court to the fact that both the Courts below were right in holding that pre suit notice was properly sent by the respondent herein and it was the revision petitioner who avoided the notice being served on him. Even during cross examination, D.W.2 (accused) has admitted that he continues to stay in the same address which is found on the returned registered envelope "as not claimed".
9. It is a common or garden principle of law that the Courts are justified normally in believing the postal endorsement as 'not claimed', unless it is challenged as a fraudulent endorsement. Accordingly the Courts below held that the notice was properly sent to the accused. P.Ws.2 and 3, the Bank officials spoke clearly about the bouncing of the cheque. D.W.1 is the husband of the respondent herein, namely the complainant and the accused happened to be a contractor and it seems they were known to each other. The plea of the accused that he issued some cheques which were misused by the petitioner, has not been fortified by any clinching evidence and regarding finding of fact is concerned, the first appellate Court is the last Court of facts and there is no perversity in understanding the factual evidence. Hence, I am of the considered opinion that no interference is warranted.
10. At this juncture, my mind is redolent and reminiscent of the following decisions of the Hon'ble Apex Court:
(i) 2002(6) SCC 650- Bindeshwari Prasad Singh 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 was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.
14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under
Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself.
(ii) 2005 Supreme Court Cases (cri) 276 Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus:
"22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice."
A bare perusal of the said precedents would demonstrate and display that the revisional court is not expected to interfere with the findings given by the courts below and if there is any perversity or non-application of law on the part of them, the question of revisional court interfering with the findings would arise.
11. I could see no perversity in rendering of judgments by the Courts below; wherefore I do not find fault with the conviction recorded under Section 138 of the Negotiable Instruments Act. However, regarding sentence is concerned, for the sum of Rs.1,50,000/-, one year imprisonment has been given, which is disproportionate to the offence committed. Hence, awarding three months imprisonment would meet the ends of justice. Accordingly the sentence is reduced from one year simple imprisonment to three months simple imprisonment and the rest of the judgment shall remain in tact.
In the result, this criminal revision case is partly allowed.
Gms 27.07.2009 Index : Yes Internet : Yes To 1. II Additional Sessions Judge at Pondicherry. 2. The Judicial Magistrate No.1, Pondicherry. 3. The Public Prosecutor, Madras. G.RAJASURIA,J., gms Crl.R.C.No.533 of 2007 27.07.2009