Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 83 (GUJ)

State of Gujarat v. Vinu

2016-01-12

M.R.SHAH, Z.K.SAIYED

body2016
JUDGMENT : M.R. Shah, J. 1. As the present Appeal and the Revision Application arise out of the impugned judgment and order passed by the learned Additional Sessions Judge, Sabarkantha at Modasa in Criminal Appeal No. 10 of 2013 and arising out of the same Criminal Case both these Appeal and the Revision Application are heard, decided and disposed of together by this common judgment and order. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court - learned 3rd Additional Sessions Judge, Sabarkantha at Modasa dated 13.11.2013 passed in Criminal Appeal No. 10 of 2013 by which the learned Appellate Court has interfered with the judgment and order passed by the learned trial Court and has not only acquitted the original accused for the offence under Sections 406 and 420 of the Indian Penal Code but has also interfered with the sentence imposed by the learned trial Court imposed while convicting the original accused for the offences under Sections 465, 467, 468 and 471 of the Indian Penal Code, the State has preferred present Criminal Appeal No. 208 of 2014 for enhancement of the sentence and to restore the judgment and order passed by the learned trial Court. 2.1 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court dated 13.11.2013 passed in Criminal Appeal No. 10 of 2013 in so far as confirming the conviction of the accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code, the original accused has preferred Criminal Revision Application No. 719 of 2013. 2.2 At the out set, it is required to be noted that Shri P.S. Patel, learned advocate appearing on behalf of the original accused has stated at the bar that he does not press the Criminal Revision Application No. 719 of 2013 challenging the impugned judgment and order of conviction passed by the learned Appellate Court confirming the conviction for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code. However, he requested to make considerable observations that whatever the punishment already undergone by the accused may be given set off in accordance with law. However, he requested to make considerable observations that whatever the punishment already undergone by the accused may be given set off in accordance with law. 2.3 Under the circumstances, this Court is not required to consider the legality and validity of the impugned judgment and order passed by the learned Appellate Court confirming the conviction of the accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code. It is also required to be noted that as even the State has also not preferred any Appeal against the impugned judgment and order passed by the Appellate Court acquitting the original accused for the offence under Sections 406 and 420 of the Indian Penal Code and even any Appeal challenging the order passed by the learned Appellate Court in Criminal Appeal No. 33 of 2011 by which the learned Appellate Court has dismissed the said Appeal which was preferred by the State for enhancement of the sentence imposed by the learned trial Court. Therefore, the only question which is required to be considered by this Court in the present Criminal Appeal No. 208 of 2014 preferred by the State is as to whether in the facts and circumstances of the case the learned Appellate Court is justified in interfering with the sentence imposed by the learned trial Court, imposed while confirming the conviction of the accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code? 3. The facts leading to the present Criminal Appeal No. 208 of 2014 are as under:-- 3.1 That the respondent herein - original accused came to be tried by the learned 2nd Additional Judicial Magistrate First Class, Modasa for the offence under Sections 406, 420, 465, 467, 468 and 471 of the Indian Penal Code. 3. The facts leading to the present Criminal Appeal No. 208 of 2014 are as under:-- 3.1 That the respondent herein - original accused came to be tried by the learned 2nd Additional Judicial Magistrate First Class, Modasa for the offence under Sections 406, 420, 465, 467, 468 and 471 of the Indian Penal Code. That vide judgment and order dated 13.12.2010 the learned trial Court convicted the original accused for the offences under Sections 406, 420, 467 and 468 of the Indian Penal Code and also for the offence under Sections 465 and 471 of the Indian Penal Code and while convicting the original accused for the aforesaid offences the learned trial Court sentenced the accused to undergo 03 years R.I. for the offences under Sections 406, 420, 467 and 468 of the Indian Penal Code and imposed the sentence of 02 years R.I. for the offences under Sections 465 and 471 of the Indian Penal Code. That the learned trial Court also imposed the fine of Rs. 10,000/- and in default to undergo further 06 months R.I. for the offences under Sections 465 and 471 of the Indian Penal Code. 3.2 That feeling aggrieved and dissatisfied with the judgment and order passed by the learned trial Court convicting the original accused for the aforesaid offences the original accused preferred Criminal Appeal No. 145 of 2010 (Old) which was subsequently renumbered as Criminal Appeal No. 10 of 2013 on establishment of the Sessions Court at Modasa. From the record it appears that the State also preferred Criminal Appeal No. 33 of 2011 before the Appellate Court for enhancement of sentence imposed by the learned trial Court, imposed while convicting the original accused for the offences Sections406, 420, 465, 467, 468 and 471 of the Indian Penal Code. It appears that though an application was submitted by the accused to hear both the Appeals together unfortunately the said application came to be rejected by the learned Appellate Court and both the aforesaid Appeals though arising out of the same judgment and order passed by the learned trial Court, were heard separately. It appears that though an application was submitted by the accused to hear both the Appeals together unfortunately the said application came to be rejected by the learned Appellate Court and both the aforesaid Appeals though arising out of the same judgment and order passed by the learned trial Court, were heard separately. It appears from the record that by judgment and order dated 19.8.2013 the learned Appellate Court - learned 3rd Additional Sessions Judge, Sabarkantha at Modasa first dismissed the Criminal Appeal No. 33 of 2011 and thereafter by judgment and order dated 13.11.2013 partly allowed the Criminal Appeal No. 10 of 2013 preferred by the original accused and not only quashed and set aside the conviction for the offence under Sections Sections 406 and 420 of the Indian Penal Code but the learned Appellate Court also interfered with the order of sentence imposed by the learned trial Court imposed while convicting the original accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code and also interfered with the order of fine imposed by the learned trial Court, imposed while convicting the original accused for the offence under Sections 465 and 471 of the Indian Penal Code. At this stage, it is required to be noted that the very learned Judge, who dismissed the Appeal preferred by the State being Criminal Appeal No. 33 of 2011 which was preferred by the State for enhancement of the sentence by giving one of the reason that the sentence imposed by the learned trial Court is just and not required to be interfered with, the very learned Judge in the Appeal preferred by the accused interfered with the sentence imposed by the learned trial Court and reduced the sentence imposed by the learned trial Court. At this stage, it is also required to be noted that by the time the learned Appellate Court passed the impugned judgment and order reducing the sentence imposed by the learned trial Court and imposing the sentence of 15 months the accused had undergone the sentence of 15 months, meaning thereby the learned Appellate Court has virtually passed the order of sentence undergone. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned 3rd Additional Sessions Judge, Sabarkantha at Modasa the State has preferred the Criminal Appeal No. 208 of 2014 for enhancement of the sentence and to restore the judgment and order passed by the learned trial Court imposing the sentence of 03 years R.I. for the offences under Sections406, 420, 467, 468 and 471 of the Indian Penal Code and 02 years R.I. for the offences under Sections 465 and 471 of the Indian Penal Code. 4. Shri H.S. Soni, learned APP appearing on behalf of State has vehemently submitted that the learned Appellate Court has materially erred in interfering with the sentence imposed by the learned trial Court imposed while convicting the original accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code. 4.1 It is further submitted by Shri Soni, learned APP that as such the learned Appellate Court ought to have heard both the Appeals i.e. Criminal Appeal No. 33 of 2011 preferred by the State which was preferred for enhancement of the sentence imposed by the learned trial Court and present Criminal Appeal No. 10 of 2013 which was preferred by the accused to avoid any conflicting orders and more particularly when both the Appeals arising out of the same judgment and order passed by the learned trial Court and arising out of the same offence. 4.2 It is further submitted by Shri Soni, learned APP appearing on behalf of the State that even otherwise as such no cogent reasons have been given by the learned Appellate Court while interfering with the order and the sentence imposed by the learned trial Court, imposed while convicting the original accused for the offences under Sections 465, 467, 468 and 471 of the Indian Penal Code. 4.3 It is submitted that as such the sentence imposed by the learned trial Court while convicting the original accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code were inadequate and disproportionate to the gravity of the offence. 4.3 It is submitted that as such the sentence imposed by the learned trial Court while convicting the original accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code were inadequate and disproportionate to the gravity of the offence. It is submitted that therefore as such the State was aggrieved by the sentence imposed by the learned trial Court and, therefore, the State preferred the Appeal before the Appellate Court which unfortunately came to be dismissed by the learned Appellate Court by passing a separate judgment and order dated 13.8.2013 in Criminal Appeal No. 33 of 2011. 4.4 It is submitted that as such the very learned Judge who decided the Criminal Appeal No. 10 of 2013 and interfered with the order of sentence imposed by the learned trial Court, dismissed the Appeal preferred by the State being Criminal Appeal No. 33 of 2011 which was submitted for enhancement of the sentence imposed by the learned trial Court by observing that the sentence imposed by the learned trial Court can be said to be just and the same is not required to be interfered with. It is submitted that therefore once the Criminal Appeal preferred by the State was dismissed by the very learned Judge, by passing the impugned judgment and order the learned trial Court ought not to have interfered with the order of sentence and as such that would tantamount to reviewing its own order. 4.5 It is submitted that as such no reason whatsoever has been given and/or assigned by the learned Appellate Court while interfering with the sentence imposed by the learned trial Court. It is submitted that unless and until it is found by the Appellate Court that the sentence imposed by the trial Court is shocking and it shocks the conscience and/or is disproportionate to the offence committed, in such a situation only, the interference is called for. It is submitted that in the present case as such no reasons whatsoever have been assigned while interfering with the sentence imposed by the learned trial Court. It is submitted that in the present case as such no reasons whatsoever have been assigned while interfering with the sentence imposed by the learned trial Court. It is submitted that even otherwise the sentence imposed by the learned trial Court, imposed while convicting the original accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code could not have been said to be shockingly disproportionate to the offence committed by the accused and, therefore, the same was not required to be interfered by the learned Appellate Court. It is further submitted that even on merits also more particularly when the original accused was holding the post of Talati-cum-Mantri committed the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code by forging the security/cheque of the Government and paid the cheque worth Rs. 4,10,000/- to three different persons though they were not entitled to, the learned Appellate Court ought not to have interfered with the order of sentence imposed by the learned trial Court. It is submitted that the aforesaid submission is made without prejudice to rights and contentions of the State that as such the learned trial Court ought to have awarded the maximum punishment provided for the offences under Sections 465, 467, 468 and 471 of the Indian Penal Code. Taking the above submissions it is requested to allow the Criminal Appeal No. 208 of 2014 preferred by the State and to restore the judgment and order passed by the learned trial Court. 5. Shri P.S. Patel, learned advocate has appeared on behalf of the original accused and has tried to oppose the Criminal Appeal preferred by the State and has tried to support the impugned judgment and order passed by the learned Appellate Court interfering with the sentence imposed by the learned trial Court. It is submitted that in the facts and circumstances of the case as such no error has been committed by the learned Appellate Court in interfering with the sentence imposed by the learned trial Court. Therefore, he has requested to dismiss the present Appeal. 6. Heard the learned advocates appearing for the respective parties at length. At the outset, it is required to be noted that the learned trial Court convicted the original accused for the offences under Sections 406, 420, 465, 467, 468 and 471 of the Indian Penal Code. Therefore, he has requested to dismiss the present Appeal. 6. Heard the learned advocates appearing for the respective parties at length. At the outset, it is required to be noted that the learned trial Court convicted the original accused for the offences under Sections 406, 420, 465, 467, 468 and 471 of the Indian Penal Code. While convicting the original accused for the aforesaid offences the learned trial Court sentenced the accused to undergo 03 years R.I. for the offences under Sections 406, 420, 467, and 468 of the Indian Penal Code and imposed the sentence of 02 years R.I. for the offences under Section 465 and 471 of the Indian Penal Code. The learned trial Court also imposed the fine of Rs. 10,000/- and in default to undergo further 06 months R.I. for the offences under Sections 465 and 471 of the Indian Penal Code. 6.1 That on an appeal by the accused by impugned judgment and order the learned Appellate Court (learned Sessions Court) has acquitted the original accused for the offences under Sections 406 and 420 of the Indian Penal Code. However, has confirmed the conviction of the accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code and has partly allowed the Appeal preferred by the accused. However, while confirming the conviction of the accused for the offences under Sections 465, 467, 468 and 471 of the Indian Penal Code the learned Appellate Court has interfered with the punishment and the sentence imposed by the learned trial Court and has imposed the sentence of 15 months R.I. and fine of Rs. 5,000/- and in default to undergo further 01 month S.I. and has also imposed the sentence of 15 months R.I. for the offence under Section 467 of the Indian Penal Code with fine of Rs. 5,000/- and in default to undergo further 01 month S.I. for the offence under Section 468 of the Indian Penal Code and the learned Appellate Court has also imposed the sentence of 12 months R.I. with fine of Rs. 5,000/- and in default to undergo further 01 month S.I. for the offence under Section 465 of the Indian Penal Court. No further sentence has been imposed by the learned Appellate Court for the offence under Section 471 of the Indian Penal Code. 5,000/- and in default to undergo further 01 month S.I. for the offence under Section 465 of the Indian Penal Court. No further sentence has been imposed by the learned Appellate Court for the offence under Section 471 of the Indian Penal Code. Thus, the learned Appellate Court has substituted the sentence for the offences under Sections 465, 467, 468 and 471 of the Indian Penal Code to the extent as stated hereinabove, which has given rise to the Criminal Appeal No. 208 of 2014 preferred by the State which has been preferred for enhancement of sentence imposed by the learned Appellate Court while confirming the conviction for the offences under Sections 465, 467, 468 and 471 of the Indian Penal Code. 6.2 At this stage, it is required to be noted and it is not in dispute that as such against the judgment and order passed by the learned trial Court in Criminal Case No. 190 of 2010 by which the learned trial Court passed an order that all the sentences be run concurrently and also for enhance of sentence, the State preferred Criminal Appeal No. 33 of 2011 before the very learned Appellate Court/Appellate Judge and the very learned Appellate Judge by his judgment and order dated 19.8.2013 dismissed the said Appeal by observing that no case is made out for enhancement of the sentence and/or to pass the order to undergo the sentence for different offences separately. 6.3 Despite the above, the very learned Appellate Judge not only heard both the Appeals separately but also by subsequent decision interfered with the order of punishment and sentence. At this stage, it is required to be noted that one application was given before the learned Appellate Court to hear both the Appeals together, however the learned Appellate Court dismissed the said application. Therefore, as such both the Appeals which can be said to be cross Appeals were required to be heard together. 7. Be that it may, even the impugned judgment and order passed by the learned Appellate Court by which the learned Appellate Court has interfered with the order of punishment and sentence imposed by the learned trial Court while convicting the original accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code cannot be sustained. Be that it may, even the impugned judgment and order passed by the learned Appellate Court by which the learned Appellate Court has interfered with the order of punishment and sentence imposed by the learned trial Court while convicting the original accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code cannot be sustained. We are prima facie of the opinion that in exercise of the power the Appellate Court is not justified in interfering with the sentence imposed by the learned trial Court. The original accused has been held guilty for the offences under Sections 465, 467,468 and 471 of the Indian Penal Code and prosecution has been successful in proving that accused being a government servant though not authorised gave the cheques of huge amount in favour of various agriculturists and though other persons were not entitled to and the accused for the documents. Therefore, accused committed the aforesaid offences while he was on duty as Talati-cum-Mantri and thus on government duty. He also forged seals of the Government. The aforesaid aspect has not been considered at all by the learned Appellate Court while interfering with the order of conviction and sentence imposed by the learned trial Court. Unless and until it is found by the Appellate Court that the punishment and sentence imposed by the learned trial Court is shockingly disproportionate to the offence committed, the Appellate Court is not justified in interfering with the sentence imposed by the learned trial Court, more particularly when the learned trial Court has exercised discretion judiciously. In the facts and circumstances of the case and the manner in which the accused committed the offence being a government servant and misusing his position the learned Appellate Court is not justified in interfering with the sentence imposed by the learned trial Court. It cannot be disputed that the sentence imposed must be adequate and sufficient and commensurate with the gravity of the offence. The learned trial Court imposed the sentence of 03 years R.I. for the offences under Sections 406, 420, 467 and 468 of the Indian Penal Code and imposed the sentence of 02 years R.I. for the offences under Sections 465 and 471 of the Indian Penal Code. That the learned trial Court also imposed the fine of Rs. The learned trial Court imposed the sentence of 03 years R.I. for the offences under Sections 406, 420, 467 and 468 of the Indian Penal Code and imposed the sentence of 02 years R.I. for the offences under Sections 465 and 471 of the Indian Penal Code. That the learned trial Court also imposed the fine of Rs. 10,000/- and in default to undergo further 06 months R.I. for the offences under Sections 465 and 471 of the Indian Penal Code. However, by impugned judgment and order the Appellate Court has reduced to 15 months R.I. Under the circumstances, the impugned judgment and order passed by the learned Appellate Court reducing the sentence while confirming the conviction for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code cannot be sustained. 7.1 At this stage, it is required to be noted that from the facts emerges it appears that the learned Appellate Court has deliberately imposed the sentence of 15 months R.I. It emerges from the record that at the time when the learned Appellate Court passed the impugned judgment and order the accused had undergone the sentence of 01 year 03 months and 05 days. Therefore, it can be said that virtually the learned Appellate Court has imposed the sentence undergone. In any case the impugned judgment and order passed by the learned Appellate Court interfering the sentence imposed by the learned trial Court and imposing the sentence of only 15 months R.I. for the offence under Sections465, 467 and 468 of the Indian Penal and imposing the sentence of 12 months R.I. for the offence under Section 465 of the Indian Penal Code cannot be sustained and the judgment and order passed by the learned trial Court in so far as imposing the sentence while convicting the original accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal is required to be restored. 8. In view of the above, for the reasons stated above, Criminal Revision Application No. 719 of 2013 is hereby dismissed as not pressed. 9. 8. In view of the above, for the reasons stated above, Criminal Revision Application No. 719 of 2013 is hereby dismissed as not pressed. 9. The Criminal Appeal No. 208 of 2014 preferred by the State is hereby allowed and the impugned judgment and order passed by the learned 3rd Additional Sessions Judge, Sabarkantha at Modasa in Criminal Appeal No. 10 of 2013 in so far as interfering with the order of sentence imposed by the learned 2nd Additional Judicial Magistrate First Class, Modasa passed in Criminal Case No. 190 of 2010, imposed while convicting the original accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code is hereby quashed and set aside and the judgment and order passed by the learned 2nd Additional Judicial Magistrate First Class, Modasa passed in Criminal Case No. 190 of 2010 convicting the original accused for the offence under Sections 465, 467, 468 and 471 of the Indian Penal Code is hereby restored and even the sentences imposed by the learned trial Court while convicting the original accused for the offences under Section Sections 465, 467, 468 and 471 of the Indian Penal Code vide judgment and order dated 13.12.2010 passed in Criminal Case No. 190 of 2010 is hereby restored. 10. All the sentences to run concurrently. It goes without saying that the sentence already undergone by the accused shall be given set off in accordance with law. 11. Now on the judgment and order passed by the learned 2nd Additional Judicial Magistrate First Class, Modasa dated 13.12.2010 passed in Criminal Case No. 190 of 2010 is being restored, the original accused to surrender before the concerned jail authority to undergo the remaining sentence on or before 12.2.2016, failing which he shall be arrested by issuing non-bailable warrant. 12. The present appeal is partly allowed to the aforesaid extent. 13. R & P to be sent back to the trial court forthwith.