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PETITIONER:

STATE OF KERALA, MANAGING DIRECTOR, WESTERN INDIA PLYWOODS

Vs.

RESPONDENT:

PUTTUMANA ILLATH JATHAVEDAN NAMBOODIRI

DATE OF JUDGMENT: 11/02/1999

BENCH:

G.B.Pattanaik, S. Rajendra babu

JUDGMENT:

PATTANAIK,J.

The State of Kerala is in appeal against the Judgment

dated 4.2.94 of the Kerala High Court in Criminal Revision

Petition No. 521 of 1988. By the impugned Judgment, the

High Court in revision, has interfered with the conviction

and sentence passed against the accused respondent of the

offences under Sections 408, 468 and 477A of the Indian

Penal Code.

The accused-respondent was an employee of Western

India Plywoods and was head of the purchase section. In

course of his duties, he was supposed to send empty barrels

to the suppliers for getting the chemical Formal-dehyde.

The prosecution alleged that in the process of sending such

empty barrels to the suppliers for the purpose of getting

refilled Formal-dehyde between the period 10.10.74 to

25.6.75, the accused-respondent manipulated the official

records and documents and sold 660 empty barrels, the value

of which was Rs.69,300/- and himself appropriated the same,

thereby committed offence under Section 408, 468 and 477A of

the Indian Penal Code. The prosecution examined as many as

24 witnesses and exhibited 96 documents. On a thorough

consideration of the evidence on record, both oral and

documentary, the learned Judicial Magistrate, First Class,

Cannanore, came to the conclusion that the accused while

working as head of the purchase section of the Western India

Plywoods, took the empty barrels concerned from the factory

and diverted the same to a destination of his own choice and

disposed of the same according to his own convenience and

mis-appropriated the entire sale proceeds thereof. The

Magistrate also recorded a clear finding that the accused

falsified the documents Exhibits P-2(a), P-2(b) and P-3(a),

the gate passes by furnishing false information in the same

and also forged the railway receipts by affixing the seal of

the Western India Plywoods and putting his signature on the

railway receipts on behalf of the company and thereby the

charges against the accused have been established beyond

reasonable doubt. For his conviction under Sections 408 and

468, the accused was sentenced to undergo simple

imprisonment for five months each and to pay a fine of

Rs.1000/- each, in default S.I. for one month each under

each count and for offence under Section 477A, he was

sentenced to pay a fine of Rs.1000/-, in default, S.I. for

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two months. Sentences were directed to run concurrently.

On appeal being carried, the learned Additional Sessions

Judge, Tellicherry, re-appraised the entire evidence, oral

and documentary and affirmed the conclusion of the learned

Magistrate and upheld the conviction and sentence passed by

the Magistrate. On a revision being filed by the accused,

the High Court by the impugned Judgment interfered with the

conviction and sentence and came to hold that the

prosecution has failed to establish the case beyond

reasonable doubt.

Mr. Prakash, the learned counsel, appearing for the

State of Kerala contended that the High Court exceeded its

revisional jurisdiction in interfering with an order of

conviction and sentence passed thereunder by re-appreciating

the evidence on record and, therefore, the impugned Judgment

is wholly unsustainable in law. The learned counsel also

contended that the High Court even has not considered

several items of evidence which had been considered by the

Magistrate and the Additional Sessions Judge in appeal and

on such score also the impugned Judgment is unsustainable.

Mr. M.N.Rao, the learned Senior Counsel, appearing

for the accused-respondent on the other hand contended that

the case being one of no evidence, the High Court was

justified in exercising its revisional jurisdiction and in

interfering with the conviction and sentence passed against

the accused. The learned counsel also contended that in the

absence of any entrustment being established, the charges

under Section 408 could not have held to have been

established beyond reasonable doubt by the prosecution and

therefore, the High Court was justified in interfering with

the conviction and sentence passed by the learned Magistrate

which had been upheld in appeal by the learned Additional

Sessions Judge.

Having examined the impugned Judgment of the High

Court and bearing in mind the contentions raised by the

learned counsel for the parties, we have no hesitation to

come to the conclusion that in the case in hand, the High

Court has exceeded its revisional jurisdiction. In Its

revisional jurisdiction, the High Court can call for and

examine the record of any proceedings for the purpose of

satisfying itself as to the correctness, legality or

propriety of any finding, sentence or order. In other

words, the jurisdiction is one of Supervisory Jurisdiction

exercised by the High Court for correcting miscarriage of

justice. But the said revisional power cannot be equated

with the power of an Appellate Court nor can it be treated

even as a second Appellate Jurisdiction. Ordinarily,

therefore, it would not be appropriate for the High Court to

re-appreciate the evidence and come to its own conclusion on

the same when the evidence has already been appreciated by

the Magistrate as well as the Sessions Judge in appeal,

unless any glaring feature is brought to the notice of the

High Court which would otherwise tentamount to gross

miscarriage of justice. On scrutinizing the impugned

Judgment of the High Court from the aforesaid stand point,

we have no hesitation to come to the conclusion that the

High Court exceeded its jurisdiction in interfering with the

conviction of the respondent by re-appreciating the oral

evidence. The High Court also committed further error in

not examining several items of evidence relied upon by the

Additional Sessions Judge, while confirming the conviction

of the respondent. In this view of the matter the impugned

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Judgment of the High Court is wholly unsustainable in law

and we, accordingly set aside the same. The conviction and

sentence of the respondent as passed by the Magistrate and

affirmed by the Additional Sessions Judge in appeal is

confirmed. This appeal is allowed. Bail bonds furnished

stand cancelled. The respondent must surrender to serve the

sentence. In view of the order in this appeal, no further

order is necessary in SLP(Criminal) No. 1466/94.