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CR.A/690/1993 7/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 690 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
BHAVSAR
RAJNIKANT KESHAVLAL] - Opponent(s)
=========================================================
Appearance
:
MR
MG NANAVATI, LD. ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
MR PADMRAJ K JADEJA for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 13/01/2010
ORAL
JUDGMENT
The
appellant-State of Gujarat, has preferred this Appeal under Section
378 of the Code of Criminal Procedure, 1973 against the judgment and
order of acquittal dated 31st March 1993 passed by the
learned 2nd Joint Judicial Magistrate, First Class,
Gandhinagar, in Criminal Case No. 3195 of 1984, 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 respondent-accused
was compounder in a Government Hospital at Unava. At the relevant
time, he had misappropriated Rs.2251.15 Paisa from the Provident
Fund amount, which are deducted from the salary of the employees,
during the period 01st April 1981 to 31st
March 1982. This misappropriation is reflected in the Audit Report.
Relying upon the Audit Report, the District Health Officer had given
permission to the complainant, who was serving as Administrative
Officer in Health Department, District Panchayat, Gandhinagar.
Therefore,
a complainant with respect to the aforesaid offence was filed
against the respondent on
02nd
May 1984. Necessary investigation was carried out and statements of
several witnesses were recorded. During the courser of
investigation, respondent was arrested and charge-sheet was filed
against him before the Court of learned 2nd
Joint Judicial Magistrate, First Class, Gandhinagar. The
respondent-accused was presented before the
Court and the Court was pleased to release the respondent-accused on
bail.
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 levelled against him by the
judgment and order dated 31st March 1993.
Being
aggrieved and dissatisfied with the said judgment and order dated
31st March 1993 passed by the learned 2nd
Joint Judicial Magistrate First Class, Gandhinagar in Criminal Case
No. 3195 of 1984, the appellant-State of Gujarat, has preferred the
above mentioned Criminal Appeal.
I
have heard Mr. M.G. Nanavati, learned Additional Public Prosecutor,
appearing on behalf of the appellant-State and learned advocate,
appearing on behalf of respondent-accused. I have also gone through
the papers and the Judgment and order passed by the Trial Court.
Mr.
M.G. Nanavati, learned Additional Public Prosecutor for the
appellant, has taken me through the evidence of prosecution
witnesses and the documentary evidence and submitted that from the
above evidence it is established that the prosecution has
successfully proved its case beyond reasonable doubt. He has
contended that the witnesses have supported the case of the
prosecution and the learned Magistrate has committed grave error in
disbelieving and discarding the evidence of witnesses. He,
therefore, contended that the judgment and order passed by the
learned Magistrate is without appreciating the facts and evidence on
record.
Learned
advocate for the respondent-accused has supported the judgment and
order of the Trial Court and contended that the prosecution has
failed to establish prima-facie case against the accused.
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 it is true that Rs.2251.15 was misappropriated.
It is also observed by the learned
Judge that respondent-accused
was entrusted with the work of accounts, but who was keeping the
money, is not proved beyond reasonable doubt. Looking to the
provision of Section 409 of the Indian Penal Code, when the main
ingredient of provision of section is not proved beyond reasonable
doubt, it cannot be assumed that the respondent-accused
has misappropriated the money. 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
Additional Public Prosecutor 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
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