Gujarat High Court Case Information System
Print
CR.A/2257/2009 5/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2257 of 2009
=========================================================
AMRUTBHAI
ASHABHAI SHRIMALI - Appellant(s)
Versus
PARSHOTTAMBHAI
AMBALAL PATEL & 1 - Opponent(s)
=========================================================
Appearance
:
MR
UA TRIVEDI for
Appellant(s) : 1,
None for Opponent(s) : 1,
MR AJ DESAI, LD.
ADDL. PUBLIC PROSECUTOR for Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 28/01/2010
ORAL
ORDER
The
appellant has preferred this Appeal under Section 378 of the Code of
Criminal Procedure, 1973 against the judgment and order of acquittal
dated 30th March 2007 passed by the learned 6th
Additional Senior Judicial Magistrate, Gandhinagar, in Criminal Case
No. 08 of 2006, whereby the learned Magistrate has acquitted the
respondent-accused of the charges levelled against him.
The
short facts of the prosecution case is that the complainant and the
respondent-accused
were residing in one sector and knows each other. It is also the
case of the complainant that the respondent-accused
told the complainant that he wants to sale his plot No.128/1 in
Sector -4A, Gandhinagar in a sum of Rs.1,50,000/- (Rupees One Lac
Fifty Thousand Only). The complainant thereafter purchased the said
plot after paying consideration of Rs.1,50,000/- (Rupees One Lac
Fifty Thousand Only). It is also the case of the complainant that
in the presence of Notary Agreement was also entered into between
the original complainant and
the original accused. Thereafter the complainant came to know that
the plot in question was also sold to other person. Against this,
the complainant also gave an advertisement in the newspaper and
cancelled the Agreement. On being asked to the respondent-accused,
he informed the complainant that he is giving three cheques in lieu
of Rs.1,50,000/-, which is received by the respondent-accused
from the complainant as a consideration of plot in question. The
respondent-accused
had given three cheques to the complainant. When on 21st
November 2002 the complainant deposited all the three cheques in
Gandhinagar, two cheques were returned dishonoured with endorsement
insufficient balance . It is also the case of the prosecution
that because of this, the complainant issued notice to the
respondent-accused
on 05th December 2005 to return the cheque amount within
15 days. The respondent-accused
has not given proper reply to the notice issued by the complainant.
Therefore, the complainant had filed the complaint under Section 138
of the Negotiable Instruments Act against the respondent-accused.
Thereafter
the trial was conducted before the learned Magistrate. To prove the
case of the prosecution, prosecution has produced oral as well as
documentary evidence. After considering the oral as well as
documentary evidence, the learned Magistrate has acquitted the
respondent-accused from the charges alleged against him by the
judgment and order dated 30th March 2007.
Being
aggrieved and dissatisfied with the said judgment and order dated
30th March 2007 passed by the learned Magistrate in
Criminal Case No. 08 of 2006, the appellant has preferred the above
mentioned Criminal Appeal.
I
have heard Mr. Mukesh Dave, learned counsel for the appellant. I
have also gone through the papers and the judgment and order passed
by the Trial Court.
Just
to prove the case of the prosecution, prosecution has produced oral
as well as documentary evidence. Heard Mr. Mukesh Dave, learned
counsel for the appellant. He has taken me through the evidence of
prosecution witnesses. He has vehemently argued that the learned
Judge has not properly considered the oral as well as documentary
evidence produced on record. He has read oral as well as documentary
evidence and vehemently argued that the complainant-present
appellant has prima-facie case and it is a good case for admission.
Mr. A.J. Desai, learned Additional Public Prosecutor, waives service
of notice on behalf of the State. He, therefore, contended that the
judgment and order passed by the learned Magistrate is without
appreciating the facts and evidence on record.
I
have gone through the judgment of the Trial Court. I have also
perused the reasons assigned by the learned Magistrate.
At
the outset it is required to be noted that the principles which
would govern and regulate the hearing of appeal by this Court
against an order of acquittal passed by the Trial Court have been
very succinctly explained by the Apex Court in a catena of
decisions. In the case of
M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported
in (2006)6 SCC, 39,
the Apex Court has narrated about the powers of the High Court in
appeal against the order of acquittal. In para 54 of the decision,
the Apex Court has observed as under:
54.
In any event, the High Court entertained an appeal treating to be an
appeal against acquittal, it was in fact exercising the revisional
jurisdiction. Even while exercising an appellate power against a
judgment of acquittal, the High Court should have borne in mind the
well-settled principles of law that where two view are possible,
the appellate court should not interfere with the finding of
acquittal recorded by the court below.
Thus,
it is a settled principle that while exercising appellate power,
even if two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the Trial Court.
Even
in a recent decision of the Apex Court in the case of State
of Goa Vs. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75,
the Court has reiterated the powers of the High Court in such cases.
In para 16 of the said decision the Court has observed as under:
16.
From the aforesaid decisions, it is apparent that while
exercising the powers in appeal against the order of acquittal, the
Court of appeal would not ordinarily interfere with the order of
acquittal unless the approach of the lower Court is vitiated by some
manifest illegality and the conclusion arrived at would not be
arrived at by any reasonable person and, therefore, the decision is
to be characterized as perverse. Merely because two views are
possible, the Court of appeal would not take the view which would
upset the judgment delivered by the Court below. However, the
appellate court has a power to review the evidence if it is of the
view that the conclusion arrived at by the Court below is perverse
and the Court has committed a manifest error of law and ignored the
material on record. A duty is cast upon the appellate court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out
whether any of the accused is connected with the commission of the
crime he is charged with.
Similar
principle has been laid down by the Apex Court in the cases of State
of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR
SCW 5553 and
in Girja
Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589.
Thus, the powers which this Court may exercise against an order of
acquittal are well settled.
It
is also a settled legal position that in acquittal appeal, the
appellate court is not required to re-write the judgment or to give
fresh reasoning, when the reasons assigned by the Court below are
found to be just and proper. Such principle is laid down by the Apex
Court in the case of State
of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417.
Thus,
in case the appellate court agrees with the reasons and the opinion
given by the lower court, then the discussion of evidence is not
necessary.
I
have gone through
the judgment and order passed by the Trial Court. I have also
perused the oral as well as documentary evidence led before the
Trial Court and also considered the submissions made by learned
advocate for the appellant.
The
Trial Court has, after appreciating the oral as well as documentary
evidence, found that the complainant has failed to prove beyond
reasonable doubt that cheques were issued in connection with legal
debt. It is the duty of the prosecution to prove the main
ingredient of section 138 that there was a legal debt. The
prosecution has failed to prove that the cheques, which were
returned dishonoured, were issued from which accounts. In the
present case, it is on record that there was a breach of the
contract entered into between the original complainant and the
accused. The allegations levelled against the respondent-accused
is of civil in nature. It is also observed by the learned
Magistrate that the prosecution has failed to satisfy the main
ingredient of Section 138 of the Negotiable Instruments Act. The
Trial Court has observed that there are serious lacuna in the oral
as well as documentary evidence of prosecution. Nothing is produced
on record of this appeal to rebut the concrete findings of the Trial
Court.
Thus,
the appellant could not bring home the charges against the
respondent-accused in the present appeal. The prosecution has
miserably failed to prove the case against the respondent-accused.
Thus, from the evidence itself it is established that the
prosecution has not proved its case beyond reasonable doubt.
Learned
counsel for the appellant is not in a position to show any evidence
to take a contrary view in the matter or that the approach of the
Trial Court is vitiated by some manifest illegality or that the
decision is perverse or that the Trial Court has ignored the
material evidence on record.
In
above view of the matter, I am of the considered opinion that the
Trial Court was completely justified in acquitting the
respondent-accused of the charges levelled against him. I find that
the findings recorded by the Trial Court are absolutely just and
proper and in recording the said findings, no illegality or
infirmity has been committed by it.
I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the
court below and hence find no reasons to interfere with the same.
Hence the appeal is hereby dismissed. Record
and Proceedings to be sent back to the Trial Court, forthwith. Bail
bonds, if any, shall stands cancelled.
(Z.
K. Saiyed, J)
Anup
Top