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CR.A/157/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 157 of 2010
=========================================================
BHAILALBHAI
SHYAMALBHAI PATEL - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
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Appearance
:
MR
HARSHAD K PATEL for
Appellant(s) : 1,
MS MINI NAIR, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
None for Opponent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 01/02/2010
ORAL
ORDER
The
appellant has preferred this Appeal under Section 378(4) of the Code
of Criminal Procedure, 1973 against the judgment and order of
acquittal dated 22nd July 2008 passed by the learned
Judicial Magistrate First Class, Kalol, in Criminal Case No.1024 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 respondent-accused
frequently came to the village of complainant for taking milk and
thus, there were friendly relation between the complainant and the
respondent-accused. It is also the case of the prosecution that the
respondent-accused requested the complainant to give him
Rs.01,00,000/- (Rupees One Lac Only) as a loan for purchasing the
buffaloes. Thereupon, the complainant had given Rs.95,000/- (Rupees
Ninety Five Thousand Only) in cash to the respondent-accused. It is
also the case of the prosecution that against the said loan of
Rs.95,000/- the respondent-accused issued a cheque bearing No.949517
drawn on Kalol Nagrik Sahakari Bank, Kalol. It is also the case of
the prosecution that when on 13th March 2006 the
complainant deposited the said cheque in his bank, the same was
returned dishonoured with endorsement refer to drawer . The
appellant when informed the respondent-accused about the dishonour
of cheque, the respondent-accused asked the complainant to
re-deposit the said cheque again in next week. It is also the case
of the prosecution that when again the complainant deposited the
said cheque in his bank, again the cheque came to be dishonoured on
the ground of refer to drawer . Thereafter, the complainant
issued a notice dated 31st March 2006 through his
advocate under section 138 of the Negotiable Instruments Act. Though
the notice was served upon the respondent-accused, he has not
bothered to pay the cheque amount to the complainant. Therefore,
the complainant had filed the complaint under Section 138 of the
Negotiable Instruments Act against the respondent-accused before the
learned Judicial Magistrate First Class, Kalol on 05th
May 2006.
Thereafter,
after recording statement of the complainant, the learned Magistrate
issued summons against the respondent-accused on 05th May
2006. 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 22nd July 2008.
Being
aggrieved and dissatisfied with the said judgment and order dated
22nd July 2008 passed by the learned Magistrate in
Criminal Case No. 1024 of 2006, the appellant has preferred the
above mentioned Criminal Appeal.
I
have heard Mr. Harshad Patel, 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. Harshad Patel, 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
and matter is required to be remanded. He has contended that because
of communication gap between the advocate and the complainant, the
complainant could not remain present before the Court when the
matter was fixed for hearing on 22nd July 2008. He has
also contended that except 2 or 3 occasion, complainant remained
present on each and every adjournments. He, therefore, contended
that the judgment and order passed by the learned Magistrate is
without appreciating the facts and evidence on record. Ms. Mini
Nair, learned Additional Public Prosecutor, waives service of notice
on behalf of the State.
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.
After
appreciating the oral as well as documentary evidence I found that
the learned advocate of the complainant-present appellant and the
appellant not appeared on three occasions. It is observed that the
matter is pending since two years and yet the learned Judge has not
dismissed the matter till 22nd July 2008. It is also
observed that the complainant has failed to prove beyond reasonable
doubt that cheque was 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 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
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