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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.