....

STATE OF KERALA A .... v .

PUTTUMANA ILLATH JATHAVEDAN NAMBOODIRI ETC.

FEBRUARY 11, 1999

(G.B. PATTANAIK AND S. RAJENDRA BABU, JJ.] B

-· • Criminal Procedure Code 1973-Section 397-Revisional jurisdictio11-Co11viction and sentence by Magistrate and by Sessions Judge in appeal-High Court setting aside conviction and sentence upon reappreciating evidence, whether exceeding its revisional jurisdiction----Held, revisio11al power c ca1111ot be equated with appellate power-U11less any glaring feature is brought to the notice of the High Court which would tantamount to gross miscarriage of justice, High Court not to reappreciate evidence and come to its_ own conclusion-Penal Code, Sections 408, 468 and 477A.

The accused-respondent was convicted and sentenced by the D

Magistrate for offences under Sections 408, 468 and 477 A, IPC. This was affirmed in appeal before the Additional Sessions Judge who reappraised the entire evidence, oral and documentary. On revision being filed by the accused, the High Court held that the prosecution had failed to establish the case beyond reasonable doubt.

In appeal before this Court, it was contended for the state that the High Court had exceeded its revisional jurisdiction in interfering with the order of conviction and sentence by reappreciating the evidence on record; and that the High Court had in fact not considered several items of evidence. It was urged for the accused that the case being one of no F evidence, the High Court was justified in exercising its revisional jurisdiction. Further, in the absence of entrustment having been established, the charges under Sectfon 408 could not be held to have been established.

Allowing the appeal, this Court G

.-~ HELD : 1. The High Court exceeded its jurisdiction in interfering with the conviction by reappreciating the oral evidence. In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. ID other words, the H 575

A jurisdiction is one of supervisory jurisdiction exercised by the High Court ' for correcting miscarriage of justice. But this revisional power cannot be equated with the power of an appellate court nor can it be treated as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its

\ own conclusion when the evidence has already been appreciated by the B Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. [578-D-F]

2. The High Court also committed further error in not examining C several items of evidence relied upon by the Additional Sessions Judge while confirming the conviction. [578-G]

3. The impugned judgment of the High Court is therefore wholly unsustainable in law. [578-H]

D CRIMINAL APPELLATE JURISDICTION: Criminal Appeal no. 554 of 1995 Etc.

From the Judgment and Order dated 4.2.94 of the Kerala High Court in Crl. R.P. No. 521 of 1988.

E G. Prakash for State of Kerala for the Appellant in Crl. A. No. 554/95.

U.R. Lalit, M. K. Sasidharan, T. G. Narayanan Nair for the Appellant in S.L.P. No. 1466/94.

M.N. Rao and T.T. Kunhikannan for the Respondents.

The Judgment of the Court was delivered by

PATTANAIK, J. The State of Kerala is in appeal against the Judgment dated 4.2.94 of the Kerala High Court in Criminal Revision Petition No. 521 of 1988. By the impugned Judgment, the High Court in revision, G has interfered with the conviction and sentence passed against the accused

respondent of the offences under Sections 408, 468 and 477 A of the Indian ',• _ Penal Code.

The accused-respondent was an employee of Western India H Plywoods and was head of the purchase section. In course of his duties, he

STATEv. P.IJ. NAMBOODIRI [PATTANAIK, J.] 577 " was supposed to send empty barrels to the suppliers for getting the A -

chemical Formal-dehyde. <The prosecution alleged that in the process of sending such empty barrels to the suppliers for the purpose of getting refilled Formal-dehyde between the period 10.10.74 to 25.6.75, the accusedrespondent manipulated the official records and documents and sold 660 empty barrels, the value of which was Rs.69,300/- and himself appropriated B the same, thereby committed offence under Section408, 468 and 477A of

-; the Indian Penal Code. The prosecution examined as many as 24 witnesses ;,.

and exhibited 96 documents. On a thorough consideration of the evidence on record, both oral and documentary, the learned Judicial Magistrate, First Class, Cannanore, came to the conclusion that the accused while working as head of the purchase section of the Western India Plywoods, c took the empty barrels concerned from the factory and diverted the same to a destination of his own choice and disposed of the same according to his own convenience and mis-appropriated the entire sale proceeds there- } of. The Magistrate also recorded a clear finding that the accused falsified the documents Exhibits P-2(a), P-2(b) and P-3(a), the gate passes by D furnishing false information in the same and also forged the railway receipts by affixing the seal of the Western India Plywoods and putting his signature on the railway receipts on behalf of the company and thereby the charges against the accused have been established beyond reasonable doubt. For his conviction under Sections 408 and 468, the accused was sentenced to undergo simple imprisonment for five months each and to pay E a fine of Rs.1000/- each, in default S.I. for one month each under each count and for offence under Section 477 A, he was sentenced to pay a fine of Rs.1000/-, in default, S.I. for two months. Sentences were directed to run concurrently. On appeal being carried, the learned Additional Sessions Judge, Tellicherry, re-appraised the entire evidence, oral and documentary F Ji" and affirmed the conclusion of the learned Magistrate and upheld the conviction and sentence passed by the Magistrate. On a revision being filed by the accused, the High Court by the impugned Judgment interfered with the conviction and sentence and came to hold that the prosecution has failed to establish the case beyond reasonable doubt.

x~ Mr. Prakash, the learned counsel, appearing for the State of Kerala contended that the High Court exceeded its revisional jurisdiction in interfering with an order of conviction and sentence passed thereunder by re-appreciating the evidence on record and, therefore, the impugned Judgment is wholly unsustainable in law. The learned counsel also contended H

A that the High Court even has not considered several items. of evidence / which had been considered by the Magistrate and the Additional Sessions .....

Judge in appeal and on such score also the impugned Judgment is unsustainable.

B Mr. M.N. Rao, the learned Senior Counsel, appearing for the accused-respondent on the other hand contended that the case being one of no evidence, the High Court was justified in exercising its revisional juris-

~ diction and in interfering with the conviction and sentence passed against ...

the accused. The learned counsel also contended that in the absence of any entrustment being established, the charges under Section 408 could not c have held to have been established beyond reasonable doubt by the prosecution and therefore, the High Court was justified in interfering with the conviction and sentence passed by the learned Magistrate which had been upheld in appeal by the learned Additional Sessions Judge.

D Having examined the impugned Judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In Its revisional jurisdiction, the High Court can call for and examine the record

E of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the . jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not F be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been -. appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing

G the impugned Judgment of the High Court from the aforesaid stand point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence. The High Court also committed < ' further error in not examining several items of evidence relied upon by the AdditiOnal Sessions Judge, while confirming the conviction of the respon- H dent. In this view of the matter the impugned Judgment of the High Court

STATEv. P.I.J.NAMBOODIRI [PATTANAIK, J.] 579

is wholly unsustainable in law and we, accordingly set aside the same. The A conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence.

In view of the order in this appeal, no further order is necessary in B SLP (Criminal) No. 1466/94.

U.R.

Appeal allowed.