Shaileshkumar Kanakrai Mehta vs State Of Gujarat
2025 Latest Caselaw 5484 Guj

Gujarat High Court

Shaileshkumar Kanakrai Mehta vs State Of Gujarat on 4 April, 2025

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                              R/CR.RA/539/2016                                       ORDER DATED: 04/04/2025

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                                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                        R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO. 539
                                                   of 2016
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                                           SHAILESHKUMAR KANAKRAI MEHTA & ANR.
                                                           Versus
                                                  STATE OF GUJARAT & ANR.
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                        Appearance:
                        MR RUTURAJ NANAVATI(5624) for the Applicant(s) No. 1,2
                        MR PUNIT B JUNEJA(3972) for the Respondent(s) No. 2
                        MR. HARDIK SONI, ADDITIONAL PUBLIC PROSECUTOR for the
                        Respondent(s) No. 1
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                          CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI

                                                         Date : 04/04/2025

                                                           ORAL ORDER

The present Revision Application is preferred by the revisionist applicants assailing the judgment and order dated 30.06.2016 passed by the learned 6 th Additional Sessions Judge in Criminal Appeal No. 46 of 2008 confirming the order dated 15.07.2008 passed by the Judicial Magistrate First Class, Junagadh in Criminal Case No. 1576 of 1997.

2. The brief facts of the matter which has led to filling of the present Criminal Revision Application is that the complaint came to be filed by the respondent No.2 alleging that the applicants had applied for loan of Rs. 95,000/- under Vadapradhan Berojagar Yogna through the help of Jilla Udhyog Kendra, Junagadh. The loan was sanctioned and the amount was transferred to both the accused. When the complainant went for re-inspection of the premises where the accused persons have shown their office

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address, the same was found closed and they had shifted their premises. Further they did not re-pay the loan amount. This had led to filling of the First Information Report under Sections 406 and 420 of IPC at Junagadh Police Station.

3. Pursuant to the chargesheet and the charges having been framed, Criminal case came to be conducted and by way of order dated 15.07.2008, learned Judicial Magistrate First Class, Junagadh convicted the revisionist applicant under Section 420, IPC for two years simple imprisonment. Being aggrieved and dissatisfied with the judgment and order dated 15.07.2008, the applicants preferred Appeal before the learned Sessions Judge, which came to be numbered as Criminal Appeal No. 46 of 2008. The learned Sessions Judge by way of impugned order dated 30.06.2016 dismissed the appeal of the revisionist applicants and hence, the present Criminal Revision Application came to be filed.

4. Heard learned advocate Mr. Ruturaj Nanavati for the applicants and learned advocate Mr. Punit Juneja for respondent No.2-original complainant, as well as the learned APP Mr. Hardik Soni for the respondent State.

5. It has been brought to the notice of this court that the applicant No.1 is passed away and the death certificate of applicant No.1 is put on record. In view of the same, the present Revision Application survives only for the applicant No.2.

6. Learned advocate for the applicant requested the Court that inspite of going into the merits of the case, it would be in the interest of justice that the applicant be given the benefit of

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probation. It has been confirmed by the learned APP that there are not antecedents against the applicant. Learned advocate Mr. Juneja could not controvert this aspect and further submitted that the loan amount has been paid by the applicant under compromise which has been ascertained by the bank by giving no due certificate dated 7.4.2016.

7. The revisional jurisdiction under Section 397 of the Code is a limited jurisdiction exercisable if the court below has committed a manifest illegality or the findings are perverse and based on misreading of evidence resulting into miscarriage of justice. The powers under Section 397 and 401, Cr.P.C. cannot be exercised as a second appellate power and that the High Court cannot, while exercising the revisonal power, undertake in-depth and minute re- examination of entire evidence and upset concurrent findings of the trial court and first appellate court. Keeping in view the parameters for exercise of revisional jurisidction, it could not be said that the orders passed by the courts below and the concurrent findings arrived at, were not proper. In the alternative, leaned advocate for the applicant submitted that in the facts and circumstances of the case, benefit of probation and benefit of provisions of Section 360 of the Code of Criminal Procedure may be exercised. Present applicant has no antecedents. The loan amount has already been repaid. There is not intention to to defraud the bank. Therefore, in such circumstances, he also requested the grant of benefit of probation to the present applicant.

8. Section 360 of the Code of Criminal Procedure deals with

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releasing an offender on probation of good conduct or after admonition the Section says that when any person not under 21 yeas of age is convicted for an offence punishable with fine only or with imprisonment for a term of seven years of less or when any person under 21 years of age or any woman is convicted of an offence not punishable death or imprisonment for life and no previous conviction was proved against the offender, the Court may having regard to the age of the offender, his character and his antecedents as well as the circumstances in which the offence is committed, finds it expedient that the offender should be released on probation of good conduct, the Court may so direct instead of requiring him at once to suffer the punishment. As per subsection (4) of Section 360, these powers can be exercised by the appellate court or by the High Court while exercising powers of revision. Similarly in Probation of Offenders Act, 1958, Section 4 thereof provides that the Court may release certain offenders on probation of good conduct. According to Section 4(1), when any person is found guilty of having committed an offence not publishable with death or imprisonment of life, the Court may release him on probation of good conduct. Sub-section (2) provides that while granting the benefit, the Court shall take into account Report, if any, of the Probation Officer concerned in relation to the case. The underlying object by the provision for releasing the offender on probation of good conduct after his conviction and deal with him leniently in respect of the sentence, is in tune with the reformative theory of punishment. The object is to provide an opportunity to the offender to reform himself.

9. As far as the present case is concerned, it is not in dispute that the availed loan amount has been repaid by the applicant to

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the respondent No.2 bank. In this view of the matter, it is a fit case where the benefit of probation could be extended to the applicant. Therefore, in the aforesaid circumstance, the benefit of probation deserves to be granted to the applicant by taking aid of provisions of Section 360 of Code of Criminal Procedure. It is true that there is no Report of the Probation Officer, however on the basis of the aforesaid aspects which are special reasons available from record in relation to the case of the applicant, the benefit of probation is extendable exercising discretion in his favour in that regard. Therefore instead of requiring the applicant-revisionist to undergo the sentence of imprisonment at once, he is directed to be released on probation of good conduct on execution of bond of Rs.15,000/- (Rupees Fifteen Thousand Only) for good behaviour for a period of one year. The applicant shall further furnish surety of equivalent amount in addition to the personal bond as above. The applicant shall remain in supervision for good conduct for the said period of one year and sentence imposed on him as per the order impugned shall remain suspended during that period. It is further directed that in the event of any breach, he shall appear and shall be required to receive the said sentence during such period as may be directed by the Court.

10. With the aforesaid directions and providence as above, present Criminal Revision Application succeeds and the same is allowed making Rule absolute accordingly.

11. Office shall send back the Record and Proceedings to the Court concerned.

(PRANAV TRIVEDI,J) C.M. JOSHI