Animadverting upon the order dated 13.05.2007, passed by the learned Additional Sessions Judge cum Fast Track Court, Erode, in C.A.No.176 of 2006, confirming the judgment dated 29.12.2005, passed by the learned Judicial Magistrate Court No.I, Erode, in C.C.No.1229 of 2004, this criminal revision is focussed.
2. A 'resume' of facts which are absolutely necessary and germane for the disposal of this revision would run thus:
(a) The first respondent filed the complaint under Section 138 of the Negotiable Instruments Act as against the petitioner.
(b) Inasmuch as the accused pleaded not guilty, trial was conducted. During trial, the first respondent herein examined himself as P.W.1 and Exs.P1 to P5 were marked. No oral evidence was adduced on the side of the accused, but Ex.D1 was marked.
(c) Ultimately, the trial Court found the accused guilty, recorded the conviction and imposed the sentence as under:
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3. Animadverting upon such judgment of the lower Court, C.A.No.176 of 2006 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 is focussed on various grounds, the warp and woof of them would run thus:
The Courts below erred in convicting the petitioner, eventhough he denied the very execution of the cheque. Both the Courts below have not taken into consideration the paper publication made by the accused relating to the missing of the impugned cheque. As such, the accused is not liable to pay any amount under the cheque and he has to be acquitted.
5. Heard the learned counsel for the petitioner, the learned counsel for R1 and the learned Government Advocate (crl.side) for R2.
6. The point for consideration is as to whether there is any perversity or non-application of mind in convicting the accused and imposing the sentence as aforesaid.
7. The learned counsel for the revision petitioner reiterating the grounds of revision would pray for acquittal. Whereas, the learned counsel for the first respondent would submit that absolutely there is nothing wrong in the judgments of both the Courts below and no interference in their decisions are required, because they decided the matter based only on factual analysis and appreciation.
8. A plain reading of the judgments of both the Courts below and perusal of the records would reveal and exemplify that the cheque was signed by the accused. However, he would try to project as though the impugned cheque was picked up by the complainant when the accused had lost it near the Catholic Syrian Bank. During cross examination of P.W.1, the complainant, what transpired is that the accused and the complainant were known to each other for more than ten years. According to P.W.1, he lent a sum of Rs.65,000/- to the accused and in consideration of the same alone the latter parted with such a cheque. The plea of the accused that he lost it and thereupon he made publication, is turned out to be nothing but a cock and bull story. As such, both the Courts below passed the order based on factual analysis of the oral and documentary evidence, warranting no interference by this Court.
9. At this juncture, my mind is redolent and reminscent 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 decision would demonstrate that the revisional court is not expected to interfere with the finding given by both the courts below and if there is any perversity or non-application of law on the part of both the courts below, the question of revisional court interfering with the findings would arise.
10. As such, I could see no perversity or impropriety in the finding rendered by the Courts below.
11. The learned counsel for the revision petitioner would make an extempore submission that the sentence imposed is disproportionate to the amount involved. I could see considerable force in his submission that for the cheque amount of Rs.65,000/-, one year imprisonment is not in commensurate with the gravity of the offence under Section 138 of the Negotiable Instruments Act. Hence I am inclined to reduce the sentence of one year simple imprisonment to one month simple imprisonment leaving in tact the fine amount.
12. Whereas, the learned counsel for the first respondent would pray that the sentence of one year imposed is in no way exorbitant or excessive and there can be no justification in reducing it, as till today, he has not paid the amount.
13. Applying the principles of penology, I am of the opinion that the sentence imposed should not be excessive or too lenient. In respect of the bounced cheque involving Rs.65,000/-, sending a man for incarnation up to one month would meet the ends of justice.
14. Accordingly, the revision is partly allowed by modifying the sentence from one year simple imprisonment to one month simple imprisonment, leaving the fine amount in tact. Consequently, connected miscellaneous petitions are closed.
The trial Court, on receipt of a copy of this order is expected to issue warrant to secure the presence of the revision petitioner to undergo sentence, if not already undergone.
Gms 05.08.2009 Index : Yes/No Internet : Yes/No To 1. The Additional Sessions Judge cum Fast Track Court, Erode 2. The Judicial Magistrate Court No.I, Erode. 3. The Public Prosecutor, Madras. G.RAJASURIA,J., gms Crl.R.C.No.784 of 2007 05.08.2009