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CR.A/2338/2009 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2338 of 2009
=========================================================
SHYAM
ANANDRAM HEMRAJANI - Appellant(s)
Versus
PRAKASH
CHANDULAL MULVANI & 1 - Opponent(s)
=========================================================
Appearance
:
MR
PRAFUL J BHATT for
Appellant(s) : 1,MR RS PANJWANI for Appellant(s) : 1,
None for
Opponent(s) : 1,
MR AJ DESAI, APP for Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 03/02/2010
ORAL
ORDER
The
appellant original complainant has preferred this Appeal under
Section 374 of the Code of Criminal Procedure against the Judgment
and order dated 30.06.2009 passed by the learned Additional Sessions
Judge, Vadodara, in Criminal Appeal No. 36 of 2008, whereby the
learned Judge has set aside the Judgment and order dated 23.05.2008
passed by the learned 13th Additional Senior Civil Judge,
Vadodara, in Criminal Case No. 1655 of 2002 and acquitted the
respondent original accused from the charges levelled against
him.
The
short facts of the prosecution case is that the complainant was
running the business in the name and style of Tirupati
Enterprises and also doing the business giving advance amount to
the people. It is alleged that on 19.2.2002, as per the demand made
by the accused (respondent herein) the complainant gave Rs.70,000/-
as an advance to the accused in cash, after recovering Rs.1680/- as
cash discount. It is alleged that for the said amount of Rs.70,000/-
the accused gave a cheque to the complainant in favour of Shri
Co-Operative Bank Ltd., Raopura Branch, Vadodara. The said cheque
was deposited in the Bank on 20.5.2002 which was returned with an
endorsement referred to the drawer . Thereafter, the
complainant issued registered Notice to the accused on 22.5.2002,
which was returned on 24.5.2002 with an endorsement refused .
Thereafter the appellant complainant filed complaint against the
accused.
Thereafter
the trial was conducted before the learned Magistrate. The
prosecution has examined the witnesses and also relied upon the
documentary evidence. After considering the oral as well as
documentary evidence the learned Magistrate has held the respondent
accused guilty for the offences punishable under Section 138 of
the Negotiable Instrument Act and awarded sentence of one year
Simple with fine of Rs.5,000/- i/d to under-go SI for three months.
Against
the said Judgment the respondent accused had preferred Criminal
Appeal No. 36 of 2008 before the Sessions Court, Vadodara. The said
Appeal was heard by the learned Additional Sessions Judge, Vadodara,
and after hearing the parties, the learned Judge has set aside the
Judgment and order passed by the trial Court, vide Judgment and
order dated 30.6.2009.
Being
aggrieved and dissatisfied with the said Judgment and order dated
30.06.2009 passed by the learned Additional Sessions Judge,
Vadodara, in above Criminal Appeal, the appellant original
complainant has preferred the present Criminal Appeal.
I
have heard learned Advocate Mr. Praful J. Bhatt, appearing on behalf
of the appellant original complainant and learned APP Mr. A.J.
Desai, appearing on behalf of the respondent State. I have also
gone through the papers and the Judgment and order passed by the
Court below.
Learned
Advocate for the appellant has taken me through the oral as well as
documentary evidence and contended that from the above evidence it
is established that the prosecution has successfully proved its case
beyond reasonable doubt. He has contended that the trial Court has
rightly held the respondent accused guilty for the offences
alleged against him and, therefore, the Sessions Court, in Appeal,
should not have interfered with the said findings of the trial
Court. He has contended that at the time of taking money the accused
gave the cheque and also signed the discount voucher and the
appellant had also received Rs. 1736/- as commission for the said
amount. Therefore, the learned lower Appellate Judge has committed
grave error in not believing the case of the complainant. He,
therefore, contended that the Judgment and order passed by the
learned Additional Sessions Judge, setting aside the Judgment of the
trial Court, is without appreciating the facts and evidence on
record.
I
have gone through the Judgment of the trial Court as well as of the
Sessions Court. I have also perused the reasons assigned by both the
Courts.
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
judgement 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.
Further,
in the case of Chandrappa
Vs. State of Karnataka,
reported in (2007)4 SCC 415
the Apex Court laid down the following principles:
42. From
the above decisions, in our considered view, the following general
principles regarding powers of the appellate court while dealing with
an appeal against an order of acquittal emerge:
[1] An
appellate court has full power to review, reappreciate and reconsider
the evidence upon which the order of acquittal is founded.
[2] The
Code of Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate court on the
evidence before it may reach its own conclusion, both on questions of
fact and of law.
[3] Various
expressions, such as, substantial and compelling reasons , good
and sufficient grounds , very strong circumstances ,
distorted conclusions , glaring mistakes , etc. are not
intended to curtain extensive powers of an appellate court in an
appeal against acquittal. Such phraseologies are more in the nature
of flourishes of language to emphasis the reluctance of an
appellate court to interfere with acquittal than to curtail the power
of the court to review the evidence and to come to its own
conclusion.
[4] An
appellate court, however, must bear in mind that in case of acquittal
there is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
[5] 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.
11. 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 court below.
Even
in a recent decision of the Apex Court in the case of State
of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75,
the Court has reiterated the powers of the High Court in such
cases, more particularly, Para – 16 of the said decision.
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.
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
as well as of the Sessions Court. I have also perused the oral as
well as documentary evidence led
before the court below and also considered the submissions made by
learned Advocate for the appellant. On going through the record it
is clearly established that the complainant is not having any money
lending licence. On being asked, learned Advocate Mr. Bhatt is
unable to produce the said licence and whether the complainant is
having any money lending licence or not is also not known to the
learned Advocate. When the person is not having money lending
licence then he cannot deal with money transaction. The so called
alleged amount of cash discount cannot be said that the complainant
is doing the business of money lending and it was a legal debt and
it is legal liability of the accused.
The
Sessions court has, after appreciating the oral as well as
documentary evidence, has clearly found that when the transaction
itself creates doubt then certainly the benefit will goes in favour
of accused. The trial court has also observed that the important
document Cheque , which shows some malpractice done by holder
of the cheque. The learned Judge has observed that moreover, the
service of notice which is the basis of the complaint is also not
duly proved. The learned Judge has also observed that the trial
Court has ignored all the aspects of the matter. Nothing is produced
on record of this appeal to rebut the concrete findings of the
Sessions Court.
Thus,
the appellant could not bring home the charge against the respondent
accused in the present Appeal. The prosecution has miserably
failed to prove the case against
the appellant accused. Thus, from the evidence itself it is
established that the prosecution has not proved its case beyond
reasonable doubt.
Learned
Advocate 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
Sessions 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
Sessions court was completely justified in setting aside the
Judgment of the trial Court and acquitting the respondent
accused of the charges leveled against him. I find that the findings
recorded by the Sessions 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.
In
view of above the Appeal is dismissed. The judgment and order dated
30.06.2009 passed by the learned Additional Sessions Judge,
Vadodara, in Criminal Appeal No. 36 of 2008 setting aside the
Judgment and order dated 23.05.2008 passed by the learned 13th
Additional
Senior Civil Judge & JMFC, Vadodara, in Criminal Case No. 1655
of 2002 holding the respondent accused guilty of the charges
levelled against him, is hereby confirmed. Bail bonds, if any,
shall stand cancelled. R & P may be sent back to the trial
Court.
(Z.K.SAIYED,
J.)
sas
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