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CR.A/914/1993 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 914 of 1993
=========================================================
A.K.SHRIVASTAV
- Appellant(s)
Versus
CHIRLAXMI
FINANCE P. LTD. & 3 - Opponent(s)
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Appearance
:
MRS
MAUNA M BHATT for
Appellant(s) : 1,
MR PJ VYAS for Opponent(s) : 1 - 3.
MR HL
JANI Ld. APP for Opponent(s) :
4,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 24/11/2010
ORAL
ORDER
1. The
appellant has preferred this appeal under sec. 377 of CrPC against
the order dated 21.5.1993 passed in Criminal Case No. 283/90 by the
learned Addl. Chief Metropolitan Magistrate, Ahmedabad, whereby, the
learned Magistrate has convicted the opponents and awarded sentence
of imprisonment till rising of the Court and imposed fine of Rs. 50/-
on each count for the offence punishable under sec. 276B read with
section 278B of the Act.
2. Heard
Mrs. Mauna Bhatt learned advocate for the appellant, Mr PJ Vyas
learned advocate for the opponents no. 1 to 3 and Mr HL Jani learned
APP for the State.
3. Mrs.
Bhatt learned advocate for the appellant has vehemently argued that
the learned Judge has not considered the provisions of law and the
order of the learned Judge is bad in eye of law and looking to the
provisions of sec. 276B of the Act, learned Judge cannot award such
lesser sentence. She has also placed reliance on the decision of the
Supreme Court in the case of Kirpal Singh vs. State of Haryana,
reported in (1999)5 SCC 649 and submitted that the impugned
order requires to be quashed and set aside and the opponents no. 1 to
3 be convicted and sentenced as per the provisions of law.
4. As
against this, learned advocate Mr PJ Vyas has contended that the
order passed by the learned Judge is just and proper and no
interference is called for by this Court and the same requires to be
confirmed.
5. I
have considered the submissions of both the sides and perused the
papers. It appears that the sentence imposed upon the opponents no. 1
to 3 is lesser than the prescribed one and the learned Judge has
committed grave error and has not considered the provisions of law.
When the appellant has not filed any enhancement appeal, this matter
requires to be remanded back to the trial Court.
6. In
the result, this appeal is partly allowed. The impugned order dated
21.5.1993 passed in Criminal Case No. 283/90 by the learned Addl.
Metropolitan Magistrate, Ahmedabad is quashed and set aside. The
matter is remanded to the trial court to decide the same afresh in
accordance with law within a period of six months. R & P to be
sent back to the trial Court.
(Z.K.
SAIYED, J)
mandora/
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