STATE AGRO INDUSTRIES DEVELOPMENT CORP J&K Vs. STATE
LAWS(J&K)-1999-5-9
HIGH COURT OF JAMMU AND KASHMIR
Decided on May 28,1999

State Agro Industries Development Corp JAndK Appellant
VERSUS
STATE Respondents

JUDGEMENT

ARUN KUMAR GOEL,J - (1.) All these revisions are being taken up together for disposal as there is common question of law and facts are almost identical in all of them. Except for the amount and the depositor(s) being different, the nature of charge and circumstances in all these cases are identical. These revisions have been filed at the instance of complainant against the judgment of acquittal of Bharat Bhushan -respondent No.1 ordered by the learned Sessions Judge, Udhampur 31.10.1990; whereby the appeal filed by respondent No.1 has been allowed and consequently the order of conviction and sentence imposed upon him by the trial Magistrate has been set aside.
(2.) A complaint came to be lodged at Police Station Pacca Danga, Jammu at the instance of complainant i.e. J&K State Agro Industries Development Corporation Limited, Jammu (hereinafter referred to as complainant). According to complainant, respondent no.1 was working as a Cashier between 1972 to 1977. During this period he received different amounts from the depositors, who owned those to the complainant. Graveman of the charge was that after receiving a particular amount against a particular receipt which was reflected in it, in the counterfoil of such receipt it was shown substantially less. As a result of this, in the cash book lesser amount was shown as per the counterfoil and thus he appropriated different amounts in different cases. In his capacity as a public servant working with the Corporation his misappropriated the amount which was reflected less in the counterfoil and consequently in the cash book. This amount stood entrusted to the said respondent. It may be noted here that initial FIR was 412/77 and it was during the course of investigation of this FIR that for separate transactions different FIRs were registered. On conclusion of the investigation Challan was filed before the trial Magistrate, who after conclusion of the trial found respondent no.1 guilty, therefore convicted and sentenced him to imprisonment as well as for revovery of fine, which when questioned in appeal was set aside, hence these revisions.
(3.) DURING the course of hearing of these revision petitions, there was a dispute on the fact that State has not filed any appeal against acquittal which it could have filed under Section 417(3) of the J&K Criminal Procedure Code. It is also not in dispute that State after registration of cases had launched the prosecution against respondent no.1 in all these cases. When these revisions came up for hearing, learned counsel appearing for respondent no.1 raised a serious issue that all the revisions at the instance of complainant are not maintainable as an appeal under Section 417(3) of the Cr. P. C. lies and thus he prayed for dismissal of all the revisions. Reliance in this behalf was placed on the provisions of Section 417(3) read with Section 439(5) of J&K Code of Criminal Procedure, 1989 (1933 A. D). This plea has been seriously controverted by Shri Raju, learned counsel appearing for complain ant, who submitted that keeping in view the circumstances of this case interest of public justice demands that the revisions need to be entertained and this Court while exercising its revisional jurisdiction is not precluded from entertaining as also allowing these revisions. Thus before going into merits of the case, the question that needs to be determined is as to what is the scope of powers of this Court in exercise of its revisional jurisdiction while considering a revision petition in an appeal against acquittal at the instance of complainant where the State chooses not to question such an order by filing an appeal against acquittal. Section 417 which deals with an appeal against acquittal under the J&K Code of Criminal Procedure, 1989 (1933 AD) (hereinafter referred to as Code) as well as Section 439 thereof is extracted below: "417. Appeal in case of acquittal. Subject to the provisions of subsection (4), the Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than the High Court. (2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf, grant special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (3) No application under sub section (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of the order of acquittal. (4) If, in any case, the application under sub -section (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under section (1)." 439. High Courts powers of revision. - (1) In the case of any proceedings the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by sections 423, 426,427 and 428 or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 429. (2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a (Judicial Magistrate of the first class). (4) Nothing in this section shall be deemed to authorise the High Court to convert a finding of acquittal into conviction. (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub -section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction." ;


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