{"id":204993,"date":"2010-08-05T00:00:00","date_gmt":"2010-08-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-on-5-august-2010"},"modified":"2017-04-06T20:29:43","modified_gmt":"2017-04-06T14:59:43","slug":"appearance-vs-on-5-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-on-5-august-2010","title":{"rendered":"Appearance : vs : on 5 August, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Appearance : vs : on 5 August, 2010<\/div>\n
Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice J.C.Upadhyaya,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/953\/2007\t 15\/ 17\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 953 of 2007\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE A.M.KAPADIA  \nHONOURABLE\nMR.JUSTICE J.C.UPADHYAYA\n \n \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================\n\n\n \n\nVIPULBHAI\nBATUKBHAI BARWALIA \n\n \n\nVersus\n \n\nSTATE\nOF GUJARAT \n\n \n\n=========================================\n \nAppearance : \nMR. ASIM\nPANDYA for HL PATEL ADVOCATES for Appellant(s)\n: 1, \nMR. L.B.DABHI, APP for Respondent(s) :\n1, \n========================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE A.M.KAPADIA\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE J.C.UPADHYAYA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 05\/08\/2010 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE A.M.KAPADIA)<\/p>\n
Challenge
\n\tin the instant Appeal filed under Section 374 of the Code of
\n\tCriminal Procedure ( the Code  for short) is to the correctness
\n\tof the judgment and order dated 15.5.2007 rendered in Sessions Case
\n\tNo. 211 of 2006 by the learned 2nd Additional Sessions
\n\tJudge, Surat, by which the Appellant ( the accused  for short)
\n\thas been convicted of the offences punishable under Section 489(B)
\n\tand 489(C) of the Indian Penal Code ( IPC  for short) and was
\n\tsentenced to suffer RI for 10 years and fine of Rs.15000\/-, in
\n\tdefault of payment of fine, further RI for 3 years for the offence
\n\tpunishable under Section 489(B) of IPC, and RI for 7 years and fine
\n\tof Rs.15000\/-, in default of payment of fine, further RI for 2 years
\n\tfor the offence punishable under Section 489(C) of IPC.  It is also
\n\tordered that both the sentences shall run concurrently.\n<\/p>\n
The
\n\tprosecution case as disclosed from the FIR and unwrapped during the
\n\ttrial is as under:\n<\/p>\n
\t2.1\t\tPW-5\n<\/p>\n
\t– A.S.I. Lotan Nimbabhai while serving at Varachha Police Station,
\n\tSurat City, was informed by PW-6   Hitesh Dilipsinh Chauhan to the
\n\teffect that he has received secret information that one person named
\n\tVipul Barvalia has been moving in the market for the last two, three
\n\tdays for encashing fake currency notes of Rs.500\/- denomination and
\n\ton that day he was to come in Matavali Kunj Gali near Rakesh Tea
\n\tStall for encashing the said currency notes.  He has also informed
\n\tthat he was wearing black coloured shirt and gray coloured trouser.
\n\tHe was aged about 20 years having thin physique.  On receipt of the
\n\taforesaid information he informed the same to the surveillance
\n\tstaff, Police Constables – Devidas Chagan, Rajesh Bhiman, Hitesh
\n\tDilipsinh and Vanabhai to join in the raiding party.  Thereafter,
\n\tservices of two panchas namely Mahendra Manilal Patel and Dhirubhai
\n\tDamjibhai were requisitioned  in police station, they were informed
\n\tabout the secret information and were asked about their willingness
\n\tto join them as member of the raiding party.  On showing their
\n\twillingness, the first part of the panchnama was prepared.
\n\tThereafter, from police station, all the members of the raiding
\n\tparty, including two panchas, went to Matavali Kunj Gali in private
\n\tvehicle and remained in watch around the place, i.e. near Rakesh Tea
\n\tStall.  Meanwhile, at about 4:45 pm, a boy having description
\n\tmentioned with above information came there from Bhagudevnagar
\n\tSociety.  When he came near Rakesh Tea Stall, he was intercepted by
\n\tpolice personnel in the presence of the panchas.  On interception,
\n\the was frightened and on asking his name he has given his name Vipul
\n\tBatukbhai Barvalia, aged about 20 years, residing at Matavadi, near
\n\tthe temple of Bhavani Mata, Sunita Chambers, third floor in the
\n\tfactory of Ghabharubhai, Varachha, Surat and the original resident
\n\tof village Jejad, Taluka Savarkundla, District Amreli.  He was
\n\twearing black coloured shirt having design and grey coloured
\n\ttrousers.  When he was asked about search, he again frightened very
\n\tmuch.  When his person was searched, in the presence of panchas, 50
\n\tnotes of Rs.500\/- denomination were found from the pocket of his
\n\ttrouser.  On close look at the notes it were found fake currency
\n\tnotes of Rs.500\/- denomination.  The size of certain notes were
\n\tsmall and certain notes were big.  The colour was deem on front part
\n\tand dark on reverse part.  The numbers of the said currency notes
\n\twere as under:\n<\/p>\n
\t(i)\t12
\n\tNotes \t– \tJHD 143797<\/p>\n
\t(ii)\t9
\n\tNotes\t– \t4EP 114707<\/p>\n
\t(iii)\t11
\n\tNotes \t–\tJHC 683371<\/p>\n
\t(iv)\t12
\n\tNotes\t–\t2BG 422302<\/p>\n
\t(v)\t2
\n\tNotes\t–\tJHW 581997<\/p>\n
\t(vi)\t2
\n\tNotes \t–\t6GB 500706<\/p>\n
\t(vii)\t2
\n\tNotes\t–\t8CP 459319<\/p>\n
\tIn all,
\n\ttotal 50 currency notes of Rs.500\/- denomination amounting to
\n\tRs.25000\/- were recovered from the accused.  Paper of the notes  is
\n\trough then the real notes.  There appeared like a white line on the
\n\tmiddle portion of fake notes.  During interrogation, the accused
\n\tstated that he has taken the said currency notes for encashing in
\n\tthe market on commission basis from Kana Ravjibhai Vekaria, who is
\n\tresiding at Tirupati Society, House No.256, Simada Road, Village
\n\tPuna, Surat, who is original resident of Jejad, Taluka Savarkundla,
\n\tDistrict Amreli, and Jivan, a friend of Kantibhai Vekaria, whose
\n\taddress is not know to him, his physique is thin who is tall having
\n\t25 years age.  One gray coloured mobile phone is found during the
\n\tsearch from him.  Its model number is 2600 and IMEI Number is
\n\t35705400 \/ 818155 \/ 0.  Value of said mobile phone was about
\n\tRs.1500\/-.  Moreover, total 170 real currency notes of Rs.100\/-,
\n\tRs.50\/- and Rs. 10\/- denomiantion have been found from the wallet
\n\twhich was placed on back side of pocket of the trouser.  Therefore,
\n\ttotal 50 fake currency notes of Rs.500\/- denomination amounting to
\n\tRs.25000\/- were found in the possession of the accused, which were
\n\tprinted by accused Kantibhai Ravjibhai Vekaria and his friend Jivan
\n\tand given to the accused Vipul Barvalia on commission basis for the
\n\tpurpose of circulating the same in the market as real currency
\n\tnotes.  Therefore, as per the prosecution case, the accused is fully
\n\tknowing well that the currency notes were fake, he kept the same in
\n\this possession for placing in the circulation and committed the
\n\toffence.  He was therefore arrested.\n<\/p>\n
\t2.2\t\tComplainant
\n\tfor the aforesaid incident was registered with Varachha Police
\n\tStation, Surat vide CR No. I-CR No. 173 of 2006 against the accused
\n\tfor commission of the offence
\n\tpunishable under Section 489(B) and 489(C) of IPC.\n<\/p>\n
\t2.3\t\tPursuant
\n\tto the registration of complaint, investigation was started by PW-7
\n\t  Hasmukhrai Mansukhlal Jani, PSI.  During the course of
\n\tinvestigation, he has recorded statements of witnesses, fake
\n\tcurrency notes which were recovered were sent to FSL for chemical
\n\tanalysis by making entry in the inward   outward register along
\n\twith the sample seal.\n<\/p>\n
\t2.4\t\tOn
\n\treceipt of FSL report certifying that the notes recovered from the
\n\taccused were fake currency notes, the investigating officer has
\n\tfiled charge sheet against the accused for commission of the offence
\n\tunder Section 489(B) and 489(C) of IPC in the Court of learned Chief
\n\tJudicial Magistrate, Surat.\n<\/p>\n
\t2.5\tDuring
\n\tfurther investigation, it was revealed that the accused received
\n\tcurrency notes from one Kantibhai Ravjibhai Vekaria, who has printed
\n\tthe said currency notes.  Therefore, Kantibhai Ravjibhai Vekaria was
\n\talso apprehended and arrested by drawing the panchnama of his person
\n\tand supplementary charge sheet was filed against Kantibhai Ravjibhai
\n\tVekaria in the Court learned Chief Judicial Magistrate, Surat.\n<\/p>\n
\t2.6\t\tAs
\n\tthe offecne under Section 489(B) and 489(C) were exclusively triable
\n\tby the Court of Sessions, the learned Chief Judicial Magistrate
\n\tcommitted the case to the Court of Sessions, Surat.\n<\/p>\n
\t2.7\t\tOn
\n\tcommittal, the learned Additional Sessions Judge ( trial Court
\n\tfor short) to whom the case was made over for trial, framed charge
\n\tagainst the accused for commission of the offence under Section
\n\t489(B) and 489(C) of IPC whereas framed charge against Kantibhai
\n\tRavjibhai Vekaria for commission of the offence punishable under
\n\tSections 489(A), 489(B), 489(C) and 489(D) of IPC, and, as both
\n\tthe Sessions Cases were arising out of the same CR, they were
\n\tconsolidated and the evidence in common was recorded.\n<\/p>\n
\t2.8\t\tThe
\n\taccused as well as Kantibhai Ravjibhai Vekari pleaded not guilty to
\n\tthe charge and claimed to be tried and therefore they were put to
\n\ttrial.\n<\/p>\n
\t2.9\t\tTo
\n\tprove the culpability of the accused as well as Kantibhai Ravjibhai
\n\tVekaria, the prosecution has examined in all 7 witnesses and relied
\n\tupon their oral testimony, details of which are given in paragraph 5
\n\tof the impugned judgment and order.  They are as under:\n<\/p>\n
PW<\/p>\n
Name<\/p>\n
Exhibit<\/p>\n
PW-1<\/p>\n
Himatsinh
\n\t\t\t\t\tKesrisinh Chwada, PSO<\/p>\n
7<\/span><\/p>\n
PW-2<\/p>\n
Harishchandra
\n\t\t\t\t\tVanabhai parmar, member of raiding party<\/p>\n
9<\/span><\/p>\n
PW-3<\/p>\n
Mahendrabhai
\n\t\t\t\t\tManilal Patel, Panch witness<\/p>\n
11<\/span><\/p>\n
PW-4<\/p>\n
Rajesh
\n\t\t\t\t\tBhikhabhai solanki, Member of raiding party<\/p>\n
13<\/span><\/p>\n
PW-5<\/p>\n
Lotan
\n\t\t\t\t\tNimbabhai, complainant<\/p>\n
14<\/span><\/p>\n
PW-6<\/p>\n
Hitesh
\n\t\t\t\t\tDilipsinh Chauhan, Police Staff<\/p>\n
16<\/span><\/p>\n
PW-7<\/p>\n
Hasmukhrai
\n\t\t\t\t\tMansukhlal Jani, I.O.\n<\/p>\n
18<\/span><\/p>\n
\t2.10\t\tTo
\n\tprove the charge levelled against the accused person, the
\n\tprosecution has produced 8 documents and relied upon the contents
\n\tthereof, details of which are given in paragraph 6 of the impugned
\n\tjudgment and order.\n<\/p>\n
\t2.11\t\tAfter
\n\trecording of the evidence of the prosecution witnesses was over, the
\n\ttrial Court explained to the accused as well as Kantibhai Ravjibhai
\n\tVekaria, the circumstances appearing against them in the evidence of
\n\tthe prosecution witnesses and recorded their further statement under
\n\tSection 313 of the Code. In their further statement they denied the
\n\tcase of the prosecution in toto. The accused in his defence examined
\n\tone witness   Mahesh Chotalal, Photographer as Defence Witness-1
\n\tat exh.29.  The another accused Kantilal Ravjibhai Vekaria has
\n\tneither led any evidence nor examined any witness in  support of his
\n\tdefence.\n<\/p>\n
\tOn
\n\tappreciation, evaluation, analysis and scrutiny of the evidence on
\n\trecord, the trial Court has come to the conclusion that the currency
\n\tnotes which were recovered from the accused were fake currency notes
\n\tand were found in possession of the accused when he was intercepted
\n\tand apprehended, and therefore, the complicity of the accused for
\n\tcommission of the offence under Section 489(B) and 489(C) has been
\n\tduly established.  The trial Court therefore convicted and sentecned
\n\tthe accused for the said offences to which the reference is made in
\n\tearlier paragraph of this judgment, which has given rise to the
\n\tinstant Appeal at the instance of the accused.\n<\/p>\n
\tSo far as
\n\tanother co-accused   Kantibhai Ravjibhai Vekaria is concerned, as
\n\tnothing was found and recovered from him, he was acquitted of the
\n\toffences punishable under Section 489(A), 489(B), 489(C) and 489(D)
\n\tof IPC as the prosecution failed to prove the charge levelled
\n\tagainst him.\n<\/p>\n
\tMr. Asim
\n\tPandya, learned Advocate for the Appellant submitted that there is
\n\tno evidence against the accused. According
\n\tto him, in the entire  length and breadth  of the prosecution case,
\n\tthere is no evidence worth consideration, as no independent witness
\n\texcept member of the raiding party have supported the prosecution
\n\tcase with regard to the recovery of the fake currency currency notes
\n\tfrom the accused.  The panch witness has also not supported the
\n\trecovery of the fake currency notes from the accused in his presence
\n\tand the second panch witness has not been examined.
\n\t Therefore, on the aforesaid premises, it is submitted
\n\tby him that the impugned judgment and order convicting and
\n\tsentencing the accused for the offences punishable under Sections
\n\t489(B) and 489(C) of IPC deserves to be quashed and set aside by
\n\tallowing this Appeal.\n<\/p>\n
\tIn
\n\talternative submission, Mr. Asim Pandya, learned Advocate for the
\n\tAppellant   accused submitted that if this Court comes to the
\n\tconclusion that the prosecution has established the charge levelled
\n\tagainst the accused, so far as the quantum of punishment is
\n\tconcerned, leniency may be shown to the accused looking to his age
\n\twhich is less then 20 years and he has undergone total 4 years and 3
\n\tmonths imprisonment.  Therefore, period undergone by him may be
\n\ttreated as substantive sentence and he may be set at liberty
\n\tforthwith, if not required in any other case.  He therefore urged to
\n\tpass appropriate order in this regard.\n<\/p>\n
\tIn
\n\tcounter submission, Mr. L.B.Dabhi, learned APP for the Respondent
\n\tState of Gujarat submitted that there is a voluminous evidence
\n\tagainst the accused that he has committed offence punishable under
\n\tSection 489(B) and 489(C) of IPC.  The accused was found in the
\n\tpresence of panchas with 50 fake currency notes of Rs.500\/-
\n\tdenomination and the FSL report has also certified that the said
\n\tcurrency notes were fake currency notes.  It has also come in
\n\tevidence that
\n\tthe accused tried to put the said currency notes into circulation.
\n\t It is also highlighted by him that merely the panchas have turned
\n\thostile that itself cannot throw overboard the prosecution case as
\n\tthe evidence of the member of the raiding party inspire confidence
\n\tand found to be trustworthy. Therefore, the impugned judgment and
\n\torder convicting and sentencing the accused for commission of the
\n\toffence punishable under Sections 489(B) and 489(C) does not call
\n\tfor any interference of this Court in exercise of powers conferred
\n\tunder Section 374 of the Code.\n<\/p>\n
\tSo far as
\n\talternative submission made by Mr. Asim Pandya, learned Advocate for
\n\tthe accused regarding showing leniency is concerned, Mr. L.B.Dabhi,
\n\tlearned APP for the Respondent   State of Gujarat submitted that
\n\tthe offence committed by the accused is a serious offence as it is
\n\tan offence of crime against the nation and it affects the economy of
\n\tthe Country.  Mr. L.B.Dabhi, learned APP therefore urged that no
\n\tleniency can be shown to the accused.  He therefore submitted that
\n\tthere is no merit in this Appeal and urged to dismiss the Appeal.\n<\/p>\n
\tThis Court
\n\thas considered the submissions advanced by the learned advocates
\n\tappearing for the parties and perused the impugned judgment and
\n\torder. This Court has undertaken a compete and comprehensive
\n\tappreciation of all vital features of the case and the entire
\n\tevidence on record which is read an re-read by the learned advocates
\n\tfor the parties with reference to broad and reasonable probabilities
\n\tof the case. In light of the caution sounded by the Supreme Court
\n\twhile dealing with criminal appeals, this court has examined the
\n\tentire evidence on record for itself independently of the  trial
\n\tCourt and considered the arguments advanced on behalf of the accused
\n\tand infirmities pressed, scrupulously with a view to find out as to
\n\twhether the  trial Court has rightly recorded the order of
\n\tconviction and sentence.\n<\/p>\n
\tIn order
\n\tto prove the culpability of the accused, the prosecution has
\n\texamined and relied upon the oral testimony of PW-1   Himatsinh
\n\tKesrisinh Chawda, PSO, who has registered the complaint, PW-2
\n\tHrishchardra Vanabhai Parmar   member of the raiding party, PW-4
\n\tRajesh Bhikhabhai Solanki   member of raiding party, PW-5
\n\tLotan Nimbabhai, who is a captain of the raiding party and who filed
\n\tthe complaint and PW-6   Hitesh Dilipsinh Chauhan   member of
\n\tthe raiding party and who received the secret information.  On
\n\tthreadbare scrutiny and reappraisal of their evidence, there is no
\n\tmanner of doubt that the secret information received by PW-6
\n\tHitesh Dilipsinh Chauhan was proved to be correct and on the basis
\n\tof the said secret information, the accused was found with the
\n\tcurrency notes and his mobile phone was also seized and he was
\n\tfitted with the description given in the secret information.  His
\n\tconduct also appears to be abnormal when he was apprehended by the
\n\tpolice personnel and on the basis of the said secret information, 50
\n\tfake currency notes of Rs.500\/- denomination were found from him.
\n\tOn a prima facie look, the said currency notes were found to be fake
\n\twhich were recovered in the presence of two panchas and most of the
\n\tnotes have got identical numbers.  After recovering the said notes,
\n\tthe same were sent to FSL  for chemical analysis and the FSL report
\n\t(Exh.20) also certified that those currency notes are fake currency
\n\tnotes.  On the basis of the said evidence, the trial Court has
\n\trecorded the finding of guilt of the accused.\n<\/p>\n
\tMr. Asim
\n\tPandya, learned advocate for the accused submitted that PW-3
\n\tMahendrabhai Manilal Patel, who is the panch witnesses, has not
\n\tsupported the prosecution case with regard to recovery of fake
\n\tcurrency notes from the accused, and therefore, he was declared
\n\thostile and another panchwitness namely Dhirubhai Damjibhai Padliya
\n\thas not been examined, and therefore, recovery of fake currency
\n\tnotes from the accused has become doubtful, and therefore,
\n\tprosecution case cannot be believed.\n<\/p>\n
\tAccording
\n\tto this Court, the aforesaid submission has no substance. It is well
\n\tsettled that merely because the panch witnesses do not support the
\n\tcase of the prosecution, the case of the prosecution need not be
\n\tthrown over-board as unreliable. It may be realized that the
\n\tphenomenon of panch witnesses turning hostile to the prosecution is
\n\tnot unknown and is ever on the increase. It needs hardly to be
\n\temphasized that the decision of a case does not depend solely on the
\n\tquestion whether the panch witnesses support the prosecution or turn
\n\ttheir back on it. If the decision of the case were to depend solely
\n\ton the testimony of panch witnesses regardless of the evidence of
\n\tpolice officers, in theory, it would be giving a right to veto to
\n\tthe panchas so far as the question of culpability of an accused is
\n\tconcerned, which is not permissible in criminal jurisprudence. It is
\n\twell settled that without good ground being pointed out, testimony
\n\tof police officer, if otherwise found to be true and dependable,
\n\tcannot be discarded by court on the ground that he is a police
\n\tofficer. On the facts and in the circumstances of the case, this
\n\tCourt finds that testimonies of PW-2 Harishchandra Vanabhai Parmar,
\n\tPW-4   Rajesh Bhikhabhai Solanki, PW-5   Lotan Nimbabhai and
\n\tPW-6   Hitesh Dilipsinh Chauhan are not only inspiring confidence,
\n\tbut, get corroboration from the other evidence on record and from
\n\tthe evidence of the police officers, and from their evidence
\n\tcontents of the panchnama have been proved and it is given exhibit
\n\tnumber as well. Therefore, according to this Court, the said
\n\tpanchnama can be relied upon to decide the complicity of the
\n\taccused.\n<\/p>\n
\tMr. Asim
\n\tPandya, learned Advocate for the accused is unable to dislodge the
\n\tsaid finding and persuaded this Court to take a contrary view.  We,
\n\ttherefore find ourselves in complete agreement with the said
\n\tfindings, ultimate conclusion and the resultant order of conviction,
\n\tas the complicity of the accused for commission of the offence
\n\tpunishable under Sections 489(B) and 489(C) is fully established, as
\n\taccording to us, no other conclusion or finding or order is
\n\tpermissible on the facts and in the circumstances emerging from the
\n\trecord of the case as well as reappraisal of the evidence.
\n\tTherefore, we hold that the trial Court has rightly recorded
\n\tconviction against the accused for commission of the offences
\n\tpunishable under Sections 489(B) and 489(C) of IPC.\n<\/p>\n
\tNow, the
\n\tnext question is to examine about the alternative submission made by
\n\tMr. Asim Pandya, learned Advocate for the accused to take a lenient
\n\tview with regard to the quantum of punishment.  The trial Court has
\n\tawarded  sentence to
\n\tsuffer RI for 10 years and fine of Rs.15000\/-, in default of payment
\n\tof fine, further RI for 3 years for the offence punishable under
\n\tSection 489(B) of IPC, and RI for 7 years and fine of Rs.15000\/-, in
\n\tdefault of payment of fine, further RI for 2 years for the offence
\n\tpunishable under Section 489(C) of IPC.\n<\/p>\n
\tThis Court
\n\thas given anxious and considerate thought to the rival submissions
\n\tadvanced by the learned advocates for the parties with regard to
\n\tshowing leniency so far as sentence is concerned.  There is no
\n\tdispute that at the relevant time the accused was less than 20 years
\n\tof age, as he was born on 12.7.1986 as per birth record produced
\n\tbefore us, and therefore, he was in his twenties and just prior to
\n\tcommission of the offence he has crossed the juvenility.
\n\tFurthermore, It has not come in evidence that he was a habitual
\n\toffender, hardened criminal or involved in any such type of activity
\n\tin the past.  Therefore, according to us, since the accused has
\n\talready undergone more than 4 years of imprisonment, and if he
\n\tremains in jail for a longer period with hardened criminals, he
\n\twould also become a hardened criminal after his release from jail.\n<\/p>\n
\tIn view of
\n\tthis we are of the considered opinion that the alternative
\n\tsubmission made by Mr. Asim Pandya, learned Advocate for the
\n\tAppellant with regard to showing leniency to the accused so far as
\n\tthe quantum of sentence is con concerned, deserves merit.\n<\/p>\n
\tIn above
\n\tview of the matter, according to us, if the accused is sentenced to
\n\tsuffer RI for 5 years and fine of Rs.15000\/- and in default of
\n\tpayment of fine further RI for 6 months for the offence punishable
\n\tunder Section 489(B) of IPC, and RI for 3 years and fine of
\n\tRs.15000\/- and in default of payment of fine further RI for 3 months
\n\tfor the offence punishable under Section 489(C) of IPC and also both
\n\tthe sentences shall be ordered to run concurrently, it would meet
\n\tthe ends of justice.\n<\/p>\n
\tFor the
\n\tforegoing reasons, the
\n\tAppeal succeeds in part and accordingly, it is partly allowed qua
\n\tsentence only.  The impugned judgment and order dated 15.5.2007
\n\trendered in Sessions Case No. 211 of 2006 by the learned 2nd
\n\tAdditional Sessions Judge, Surat convicting the Appellant
\n\taccused of the offences punishable under Section 489(B) and 489(C)
\n\tis hereby confirmed and maintained.\n<\/p>\n
\tSo
\n\tfar as sentence is concerned, the Appellant   accused is sentenced
\n\tto suffer RI for 5 years and fine of Rs.15000\/-, in default of
\n\tpayment of fine, further RI for 6 months for commission of offence
\n\tunder Section 489(B) of IPC, and RI for 3 years and fine of
\n\tRs.15000\/-, in default of payment of fine, further
\n\tRI for 3 months for commission of offence under Section 489(C) of
\n\tIPC. Both the sentences are ordered to run concurrently.\n<\/p>\n
Fine,
\n\tif paid in compliance of the order passed by the trial Court, shall
\n\tbe adjusted.  The Applicant   accused is also entitled for set
\n\toff.\n<\/p>\n
\tThe Appeal
\n\tis disposed of in above terms.\n<\/p>\n
(A.M.Kapadia,J)<\/p>\n
(J.C.Upadhyaya,J)<\/p>\n
Jayanti*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Appearance : vs : on 5 August, 2010 Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice J.C.Upadhyaya,&Nbsp; Gujarat High Court Case Information System Print CR.A\/953\/2007 15\/ 17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 953 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================= 1 Whether Reporters of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-204993","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAppearance : vs : on 5 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/appearance-vs-on-5-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Appearance : vs : on 5 August, 2010 - 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