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2009 Supreme(Mad) 2593
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
N. Selvaraj & Another
Versus
State by The Inspector of Police, Commercial Crime Investigation Wing, Cuddalore, Cuddalore District
CRL.RC.Nos.444, 445 & 446 of 2007
Decided on: 23-07-2009
For the Petitioner:Lenin Balu, Advocate. For the Respondent: R. Muniyapparaj, G.A.
The seriousness of the offence and the deterrent effect of the sentence should be considered in determining the applicability of the Probation of Offenders Act.
Headnote:
Probation of Offenders Act - Criminal Misappropriation - Section 173 of Cr.P.C. - [PONNUSWAMY VS. INSPECTOR OF POLICE, T.TAMILCHELVAN VS. STATE, INSPECTOR OF POLICE, CCIW VELLORE UNIT] - The court considered the applicability of the Probation of Offenders Act in cases of criminal misappropriation and the factors to be considered for releasing the accused on probation of good conduct. The court also highlighted the importance of the seriousness of the offence and the deterrent effect of the sentence in determining the applicability of the Probation of Offenders Act.
Fact of the Case:
The accused were convicted of criminal misappropriation and sought release on probation of good conduct. The court considered whether the accused were entitled to be released on probation and if there was any perversity in the sentence imposed by the appellate Court.
Finding of the Court:
The court found that the accused were not entitled to be released on probation of good conduct and upheld the sentence imposed by the appellate Court, considering the seriousness of the offence and the deterrent effect of the sentence.
Issues: The issues were whether the accused were entitled to be released on probation of good conduct and if there was any perversity in the sentence imposed by the appellate Court.
Ratio Decidendi: The court held that the seriousness of the offence and the deterrent effect of the sentence should be considered in determining the applicability of the Probation of Offenders Act.
Final Decision: The criminal revision cases were partly allowed, and the rest of the findings and sentence imposed were confirmed.
Animadverting upon the judgments dated 3. 2007 passed by the learned Additional District and Sessions Judge(F.T.C.III), Vridhachalam, in Criminal Appeal Nos.99, 101 and 100 of 2006 confirming the judgments dated 17. 2006 passed by the Judicial Magistrate, Neyveli, in C.C.Nos.254, 256 and 255 of 2003, these criminal revision cases are focussed.
2. A resume of facts absolutely necessary and germane for the disposal of this Criminal Revision petition would run thus:
.(a) The police laid the police report in terms of Section 173 of Cr.P.C., as against the accused for the following offences:
.(b) On the side of the prosecution P.W.s 1 and 2 were examined and Exs.P1 to P3 were marked. On the accuseds side, no oral or documentary evidence was adduced.
.(c) During the pendency of the above cases, the accused filed petition confessing their guilt. However, they pleaded for mercy and also sought their release on probation of good conduct.
(d) The learned Magistrate, after conducting the trial gave a finding that the accused committed the offence and accordingly, recorded the convictions and imposed the sentences as under:
TABLE
.(e) Being aggrieved by and disconcerted with the judgements of the lower Court, the appeals in C.A.Nos.99, 101 and 100 of 2006 were preferred before the Additional District and Sessions Judge (F.T.C.-III), Vridhachalam, which Court reduced the sentence as under:
TABLE
Inasmuch as the accused pleaded not guilty, the trial was conducted.
TABLE
3. Challenging and impugning the judgements of the appellate Court, these revisions are filed with the avowed objective to get the sentences set aside and secure release on probation of good conduct.
4. The grounds inter alia in the revisions would be to the effect that the trial Court, without taking into consideration the fact that the entire misappropriated amounts were deposited, simply took a draconian view of the matter and imposed the sentences, including substantive sentences of imprisonment, instead of releasing the accused on probation of good conduct.
5. The point for consideration is as to whether the revision petitioners/accused, in all the three matters, are entitled to be released on probation of good conduct and whether there is any perversity or non-application of law in the sentence imposed by the appellate Court.
6. The learned counsel for the revision petitioners would implore and entreat, pray and request that this Court taking into consideration the fact that the entire misappropriated amounts were deposited, which shows the repentance of the accused, they may be released on probation of good conduct. However, on behalf of Bhuvaraghavan-the Cashier, in Crl.R.C.No.444 and 446 of 2007, the learned counsel, with all sincerity and earnestness would pray for releasing him on probation, as according to him, he is the only person, who is continuing in service at present, and if the sentence is confirmed, certainly he would loose his job and that would have deleterious effect on him as well as on his family.
7. In support of his submission, the learned counsel cited the following two decisions:
(i) PONNUSWAMY VS. INSPECTOR OF POLICE, certain excerpts from it would run thus:
"11. Following the judgment, the learned brother R.Balasubramanian, J. In (2000(3) MWN (Cr) 133) as held as follows:
Inasmuch as the sum stated to have been misappropriated had been reimbursed by the revision petitioner/accused, I am of the opinion that interest of justice would be met by letting off the convicted revision petitioner under the PROBATION OF OFFENDERS ACT instead of sending him to prison. There are precedents to this effect namely 1990 L.W.(crl.) 172 and 1991(1) L.W.(Crl.) 355. Accordingly, while confirming the conviction of the revision petitioner in Crl.R.C.No.935/96 on the lines indicated earlier, I am inclined to invoke the provision of the PROBATION OF OFFENDERS ACT. Accordingly, while modifying the conviction imposed on the revision petitioner in Crl.
