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2019 Supreme(Mad) 2459
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. PRAKASH, J.
Subbiah Konar – Appellant
Versus
State by the Inspector of Police, District Crime Branch, Coimbatore – Respondent
CRL.R.C. No. 273 of 2014
Decided on : 18-09-2019
For the Petitioner:T. Saikrishnan for M/s. Sai Bharath & Ilan, Advocates.
For the Respondent:P. Kritika Kamal, Govt. Advocate (Crl. Side).
Headnote:
Indian Penal Code,1860 - Section 406 – Criminal Procedure Code,1973 - Section 313 ,397 and 401 – Appeal Against conviction - Criminal Revision has been preferred challenging the judgment passed by Additional District and Sessions Judge Coimbatore confirming the conviction and sentence - It is the case of the prosecution that the petitioner was conducting a chit without registration and had collected - when they started demanding the return of the amounts, he decamped without a trace - On these allegations, a case in Crime was registered by District Crime Branch and after completing the investigation, the police filed a single final report in C.C before the Judicial Magistrate No.I for the offence - Held, To convict the petitioner under Section 406 IPC, it is not necessary for the prosecution to prove the whole gross amount mentioned in each count. During trial, the prosecution would not have been able to examine all the victims because some of them would have died or the whereabouts of some of them would not have been available etc - For instance in the first count relating to if prosecution was able to establish only then it cannot be stated that prosecution has failed to prove charge - Evidence on record in this case shows that though the prosecution was not able to prove the gross amounts viz prosecution has adduced sufficient evidence under each count - Therefore trial Court should have convicted petitioner for charge under Section 406 IPC for both counts - Since there is no appeal by State this Court cannot interfere with the order of trial Court on this aspect - Criminal Revision is partly allowed
JUDGMENT :
(Prayer: Criminal Revision preferred under Section 397 and 401 Cr.P.C. to set aside the judgment dated 17.12.2013 made in Crl.A.No.65 of 2013 on the file of the V Additional District and Sessions Judge, Coimbatore confirming the judgment of conviction and sentence dated 25.04.2013 made in C.C.No.675 of 2005 on the file of the Judicial Magistrate No.I, Pollachi.)
1. This Criminal Revision has been preferred challenging the judgment dated 17.12.2013 passed by the V Additional District and Sessions Judge, Coimbatore confirming the conviction and sentence dated 25.04.2013 passed by the Judicial Magistrate No.I, Pollachi in C.C.No.675 of 2005 .
2. It is the case of the prosecution that the petitioner was conducting a chit without registration and had collected Rs.1,80,000/- from 04.04.2002 to 03.04.2003 and Rs.1,20,000/- from 04.04.2003 to 06.10.2003, totally Rs.3,00,000/-, from P.W.1 to P.W.30 and when they started demanding the return of the amounts, he decamped without a trace.
3. On these allegations, a case in Crime No.3 of 2005 was registered by the District Crime Branch and after completing the investigation, the police filed a single final report in C.C.No.675 of 2005 before the Judicial Magistrate No.I, Pollachi for the offence under Section 406 IPC.
4. To prove the case, the prosecution examined 31 witnesses and marked 29 exhibits. When the petitioner was questioned under Section 313 Cr.P.C., about the incriminating circumstances appearing against him, he denied the same. No witness was examined nor any document marked on the side of the petitioner.
5. After considering the evidence on record and after hearing either side, the trial Court, by judgment and order dated 25.04.2013 in C.C.No.675 of 2005, convicted and sentenced the petitioner as under.
| Provision under which convicted | Sentence |
| Section 406 IPC | 2 years rigorous imprisonment and fine of Rs.2,000/-, in default to undergo 1 month simple imprisonment |
The appellate Court, while confirming the conviction imposed on the petitioner of the offence under Section 406 IPC, reduced the sentence of 2 years rigorous imprisonment awarded by the trial Court to 1 year rigorous imprisonment, by its judgment and order dated 17.12.2013 in C.A.No.65 of 2013. Challenging the judgments and orders passed by the Courts below, the petitioner is before this Court under Section 397 and 401 Cr.P.C. While granting suspension of sentence and bail, on 11.03.2014, this Court had directed the petitioner to deposit Rs.1,50,000/- before the trial Court and accordingly, the petitioner has deposited the same in the Indian Overseas Bank on 29.04.2014.
6. Heard Mr.T.Saikrishnan, learned counsel for the petitioner and Mrs.P.Kritika Kamal, learned Government Advocate (Crl. Side) appearing for the respondent State.
7. Before adverting to the rival submissions, it may be necessary to state here that, a three Judge Bench of the Supreme Court in Girish Kumar Suneja Vs. CBI [(2017) 14 SCC 809], has held that the revisional jurisdiction is a discretionary one and can be exercised only if the High Court finds that there is an error apparent on the face of the record. For better appreciation, the relevant extract runs as under :
“27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court is under no obligation to entertain a revision petition - such a petition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any case only one such eventuality is b
