IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27.07.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.Nos.428 and 429 of 2007 Vinayagamurthi ... Petitioner in both Crl.R.Cs. vs. The State rep. By the Inspector of Police, District Crime Branch, Nagappattinam Nagappattinam District. ... Respondent in both Crl.R.Cs. Prayer: Petitions filed under Section 397 and 401 of Cr.P.C. against the conviction in judgment made in C.A.Nos.19 and 20 of 2005 on the file of District and Sessions Judge, Nagappattinam confirming the judgment of the learned Judicial Magistrate Nagapattinam in C.C.Nos.565 and 564 of 2003 respectively. For Petitioner : No appearance For Respondent : Mr.R.Muniyapparaj,G.A.(crl.side) O R D E R
Animadverting upon the judgment dated 29.09.2006 in C.A.Nos.19 and 20 of 2005 passed by the District and Sessions Judge, Nagappattinam confirming the judgment of the learned Judicial Magistrate Nagapattinam in C.C.Nos.565 and 564 of 2003 respectively, these criminal revisions are focussed.
2. Pithily and precisely, the relevant facts which are absolutely necessary and germane for the disposal of these revisions would run thus:
(a) The police laid the police report in terms of Section 173 of Cr.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 was conducted.
(c) Ultimately, the trial Court convicted all the accused and imposed sentences as under:
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Case No. Accused Offence Punishment imposed
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C.C.Nos. A1 u/s 379 IPC one year R.I., fine amount of 564/03 of Rs.500/-, in default to and 565/03 undergo two months R.I. U/s 465 IPC six months R.I. U/s 467 IPC three years R.I., fine amount of Rs.2,500/-, in default to undergo six month R.I. U/s 468 IPC Two years R.I., fine amount of Rs.1,000/-, in default to undergo three months R.I. U/s 471 IPC Six months R.I. U/s 420 IPC Two years R.I., fine amount of Rs.1,000/-, in default to undergo three months R.I. A2 u/s 379 Six months R.I.,fine amount of r/w 34 IPC of Rs.250/-, in default to undergo one month R.I. U/s 465 r/w 34 IPC Three months R.I. u/s 467 r/w 34 IPC On year R.I., fine amount of Rs.1,000/-, in default to undergo three months R.I.
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Case No. Accused Offence Punishment imposed
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U/s 468
r/w 34 IPC One year R.I., fine amount of
Rs.250/-, in default to
undergo one month R.I.
U/s 471
r/w 34 IPC Three months R.I.
U/s 420
r/w 34 IPC One year R.I., fine amount
of Rs.250/-, in default
to undergo one month R.I.
A3 u/s 379
r/w 34 IPC Six month R.I., fine amount
of Rs.250/-, in default to
undergo one month R.I.
U/s 465
r/w 34 IPC Three months R.I.
U/s 467 r/w 34 IPC One year R.I., fine amount of Rs.1,000, in default to undergo three months R.I. U/s 468 r/w 34 IPC One year R.I., fine amount of Rs.250/-, in default to undergo one month R.I. U/s 471 r/w 34 IPC Three months R.I. U/s 420 r/w 34 IPC One year R.I., fine amount of Rs.250/-, in default to undergo one month R.I. (The sentences are to run concurrently and consecutively one after another in C.C.No.564/03 and 565/03
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3. Animadverting upon such judgment of the lower Court, they preferred C.A.Nos.17, 20 and 29 of 2005 and C.A.No.16, 19 and 30 of 2005 respectively and the appellate Court acquitted A1 and A3, however, confirmed the conviction and sentence imposed on A2, who preferred these revisions on various grounds, the gist and kernel of them would run thus:
Both the Courts below failed to take into consideration the reality, but delivered the judgments on assumption and presumption and against the law. Their judgments are perverse and emerged due to non-application of law. The appellate Court after acquitting A1 and A3 was not justified in confirming the conviction as against A2. The appellate Court held that the offence as against A1 and A3 was not proved and in such a case, the same view should have been applied in respect of A2 also.
4. Despite printing the name of the learned counsel for the revision petitioner, none appeared. Heard the learned Government Advocate (crl.side).
5. 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 as against A2?
6. The gist and kernel, the pith and marrow of the prosecution case is that A1 to A3 had the criminal intention to cheat the Syndicate Bank and accordingly they had stolen two cheques bearing Cheque Nos.578671 and 578695 from the Syndicate Bank Extension Counter within the campus of Velankanni Church and filled up those two cheques for a sum of Rs.2,46,000/- and Rs.1,23,000/- respectively, and deposited the same, with the Indian Bank, Nagore Branch, where A2 had his savings account, on 17.08.2001 and 28.08.2001 respectively and accordingly, those two cheques were encashed by A2.
7. A plain reading of the judgments of the appellate Court as well as the trial Court would clearly evince and evidence, express and expatiate that A2 is the account holder in the Indian Bank, Nagore Branch and only in his account those two stolen cheques were deposited for collection and accordingly he only withdrew those amounts and as such, it is crystal clear that A2 is the beneficiary and 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 would simply plead as though he is innocent. No man having head over shoulder would ever be able to digest the theory of the revision petitioner. As such, the trial Court as well as the appellate Court appropriately and apparently, correctly and convincingly, found him guilty of the various offences with which he was charged and accordingly, he was convicted, warranting no interference by this Court.
8. There is no assumption and presumption on the part of both the Courts below in convicting A2. This is a clear case in which A2 is beyond all reasonable doubt the culprit and in such a case, I could see no perversity or non-application of law in the judgments of both the Courts below. Regarding sentence aspect is concerned, at the most he has to undergo substantive sentence of six months imprisonment, which is certainly in commensurate with the offence committed by him and even I would say that such sentence is on the lower side in the wake of the grave nature of criminal act perpetrated by him.
In the result, this criminal revision case is dismissed.
gms 27.07.2009 Index : Yes/No Internet: Yes/No To 1. District and Sessions Judge, Nagappattinam. 2. Judicial Magistrate Nagapattinam. 3. The Public Prosecutor, Madras. Crl.R.C.Nos.428 and 429 of 2007