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2002 DIGILAW 444 (KER)

State of Kerala v. K. K. balan

2002-07-10

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariraran Nair, J. The revision by the State is against the judgment passed by the Sessions Court, Kottayam allowing Crl.A. 116/1993 whereby the respondent here in was acquitted of the offences under section 409 and 477A of the I P C. 2. The learned counsel for the respondents submitted that the revision is not maintainable in view of sections 378(1) and 401(4) of the Code of Criminal Procedure, He also placed reliance in this regard on the decision in Krishnanlal Oberoi v. Corporation Of Cochin (1979 K.L.T. 75). 3. The learned Government Pleader who was heard submitted that even if the revision is not maintainable, there is ample power vested with this court to convert the revision as appeal invoking powers under sec. 401 (1) of the Cr. P.C. 4. Sec. 378 (1) reads as follows:- Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appeallate order of acquittal passed by any Court other than a high Court ( or an order of acquittal passed by the Court of Sessions in revision.) It is clear from the above that the State Government has the power to direct filing of an appeal even against the appellate order of the acquittal as involved in the present case. There is no doubt at all, therefore, that an appeal was the proper remedy under sec. 378 (1) of the Cr.P.C. as far as the challenge to the impugned appellate judgment is concerned. 5. Sec. 401 (4) of the Cr.P.C. provides as follows:- “Where under this code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.” The impact of the above sec. In a case of the present nature where an appeal lies and no appeal is brought, no proceedings by way of revision could be entertained at the instance of the party who could have appealed. The revision filed in the case is thus clearly barred by sec. 401 (4) of the Cr.P.C. 6. The decision in Krishnlal Oberoi v. Corporation of Cochin (1979 KLT 75) relied on by the respondent was a case based on private complaint. Referring to sec. The revision filed in the case is thus clearly barred by sec. 401 (4) of the Cr.P.C. 6. The decision in Krishnlal Oberoi v. Corporation of Cochin (1979 KLT 75) relied on by the respondent was a case based on private complaint. Referring to sec. 378 (4) of the Cr. P.C. Which relates to appeals in the case of acquittal based on complaints it was held that even in a case where an appeal would lie only based on special leave, Sec. 401 (4) of the Cr. P.C. would get attracted ad no revision would lie. In view of the above position of law the revision filed in the case is clearly not maintainable. 7. The further question to be considered is whether the revision should be converted as an appeal invoking powers under sec. 401 (5) of the Cr. P.C. The sec. Reads as follows:- “Where under this code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary I the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.” 8. The power in this regard is not unconditional. The court would be justified in asking such conversion only if it is satisfied, on an application made for the purpose, that the revision was filed under an erroneous belief that no appeal would lie and that it is necessary in the interests of justice to allow the conversion. 9. I have persued the revision petition filed in this case. It is noticed that it was originally prepared as an appeal itself. It is after deleating the type-written words ‘appeal’ wherever it occurred in pages 2 and 4 of the petition and substituting the word with ‘Revision’ that it was actually filed as a Revision petition. Thus here is a case where the complaint-state had full knowledge that what would be maintainable was an appeal. With such knowledge the appeal prepared was modified as a revision and filed as such. Further, it is filed after the appeal period was over. 10. In the circumstances, I am not satisfied that this is a fit case for invoking the pow2ers under sec. With such knowledge the appeal prepared was modified as a revision and filed as such. Further, it is filed after the appeal period was over. 10. In the circumstances, I am not satisfied that this is a fit case for invoking the pow2ers under sec. 401 (5) of the Cr. P.C. Nor am I convinced that any miscarriage of justice would ensue unless the conversion is made. It is evident from the judgment of the court below that the prosecution agency has filed, in this case alleging criminal breach of trust and falsification of accounts breach of trust and falsification of accounts against a Post Master, to produce before court the relevant records to show that the amounts covered by money orders were actually entrusted to the accused. There is also the fact that as soon as the defects were brought to the notice of the accused, he paid up the entire deficit involved and the Government, therefore, has not suffered any financial loss on account of the alleged misdeeds of the accused. It is also brought to my notice that the offence in question were allegedly committed 14 years ago and that during the past 12 years the accused has been working normally without any default on his part. It also appears that the accused is to retire within one year. 11. Taking into account all the circumstances, I am of the view that there is no justification or need to convert the revision into an appeal as contemplated in sec. 401(5) of the Cr. P.C. Nor is there any petition filed for the purpose. The revision filed in the case, being not maintainable in view of the bar in Sec. 401 (4) of the Cr. P.C., is dismissed.