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CR.A/958/2003 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 958 of 2003
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
KARSHANBHAI
BHAGVANBHAI DETROJA - Opponent(s)
=========================================================
Appearance
:
MR
PK JANI, PUBLIC PROSECUTOR
for
Appellant(s) : 1,
MR KARANJIT VADODARIA, MR NITIN M AMIN for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 10/02/2010
ORAL
JUDGMENT
The
appellant – State of Gujarat has filed this Appeal under Section
378(1)(3) of Cr. P.C. against the Judgment and order of acquittal
dated 31.03.2003 passed by learned Chief Judicial Magistrate,
Ahmedabad (Rural), in Criminal Case No. 2335 of 1998, whereby the
respondent accused has been acquitted from the charges levelled
against him.
The
brief facts of the prosecution case is that the respondent
accused was serving as Accountant in Viramgam Taluka Sales &
Purchase Sangh (herein after referred to as the Sangh). It is
alleged that under the instruction of the District Registrar, the
audit of the said Sangh was made and the Auditor has found that
during the period from 1.4.1992 to 31.3.1994 the accused, by forging
and tampering the official records and documents, has
misappropriated the amount of Rs.4,30,339/- and has also
misappropriated to the tune of Rs. 9,91,208/- by making wrong entry
in the record. Therefore, the complainant was instructed to file
complaint against the accused for the alleged breach and illegality
committed by the accused, and thereby the complaint has been filed
against the accused respondent herein for the offences
punishable under Sections 406, 408, 409 and 477-A of I.P. Code,
which came to be numbered as Criminal Case No. 2335 of 1998.
Thereafter,
the trial was proceeded against the respondent accused in the
Court of learned Magistrate. To prove the case against the
respondent accused, the prosecution has examined the witnesses
and also produced documentary evidence. And at the end of trial,
after recording the statement of accused under Section 313 Cr.P.C.
and after hearing the parties, the learned Magistrate has acquitted
the respondent accused from the charges levelled against him,
vide judgment under challenge.
Being
aggrieved by and dissatisfied with the said Judgment and order
passed by the learned Magistrate, the appellant State has filed
present Appeal.
Learned
Public Prosecutor, appearing on behalf of the appellant, has
contended that the Judgment and order of trial Court is against the
provisions of law. The trial Court has not properly appreciated the
facts and evidence led by the prosecution and looking to the
provisions of law itself it is clearly established that the
prosecution has proved the whole ingredients of offence against the
respondent. Learned PP has also contended that the accused has also
made a confessional statement before the Auditor about the alleged
breach committed by him. He has also contended that from the charge
itself, it is established that the respondent accused was
serving in the firm and he was entrusted and was having dominion
over the property and he has confessed before the Auditor that he
has committed criminal breach of trust. Learned PP has also taken
this Court through the oral as well as documentary evidence.
Mr.
Karanjit Vadodaria, appearing for Mr. Amin, learned Counsel for the
respondent accused has vehemently contended that the prosecution
has failed to prove the ingredients of criminal breach of trust as
stipulated in Section 405 of I.P. Code and when the ingredient of
section 405 od I.P. Code is not proved, then the prosecution has
failed to prove its case beyond reasonable doubt.
I
have perused the oral as well as documentary evidence. I have also
considered the submissions made by the learned Public Prosecutor as
well as the learned Advocate, appearing for the respondent
accused. It is true that the accused has made a statement before the
Auditor, but, it cannot be said that by said statement the accused
himself has confessed the alleged breach committed by him. In the
said statement it was also not mentioned by the accused that the
alleged amount was used by him or by some others. When this Court
has put a specific query to the learned PP as to under which
provisions of Law the Auditor has any power to record the so called
confessional statement of the accused and whether the Auditor is
empowered to record the said so called confessional statement, the
learned PP is unable to give answer to the query raised by this
Court. I have also gone through the ingredient of Section 405 of
I.P. Code. The said Section 405 of I.P. Code is reproduced, as under
:
405.
Criminal breach of trust Whoever, being in any manner entrusted
with property, or with any dominion over property, dishonestly
misappropriates or converts to his own use that property, or
dishonestly uses or disposes of that property in violation of any
direction of law prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied, which he
has made touching the discharge of such trust, or wilfully suffers
any other person so to do, commits criminal breach of trust .
Learned
Public Prosecutor is unable to show as to under which provision of
law the statement of the accused was recorded by the Auditor. Even he
is unable to show as to under which provision of Evidence Act the
said statement can be considered as confessional statement .
When the main ingredient of Section 405 of I.P. Code is not proved
by the prosecution, then the whole charge can be washed out by the
oral as well as documentary evidence which is produced on the record.
So
far as so called confessional statement which is read over by the
learned Public Prosecutor is concerned, it is established law by the
Hon’ble Apex Court that the evidence of confessional statement is a
weakest evidence and it cannot be considered without any
corroboration. From the oral as well as documentary evidence which
is produced on record the learned PP is unable to say that the said
statement is fully corroborated by other evidence and the same is a
reliable piece of evidence. Learned PP has also relied upon a
decision of the Hon’ble Apex Court in the case of SHIVA KARAM
PAYASWAMI TEWAR v/s. STATE OF MAHARASHTRA , reported in AIR
2009 SC 1692. The facts of the case before the Hon’ble Apex
Court are different than the facts in the present case. In the
present case when the prosecution is unable to prove the ingredient
of Section 405 of I.P. Code, then in that case the accused cannot be
held guilty for the offences alleged against him. Therefore, the
decision cited above, would be of no avail in the present case.
I
have gone through the Judgment and order passed by the trial Court
and have also perused the oral as well as documentary evidence
produced before me and also considered the submissions made by the
learned Advocates. The trial Court has clearly observed that looking
to the evidence of complainant (Exh.8), he is a formal complainant.
He has no personal knowledge about the alleged breach of trust
committed by the accused. The evidence of other witnesses also do
not support the case of the prosecution. The trial Court has also
found that the evidence of Auditor is not helpful to the case of
prosecution. The trial Court has also observed that the Auditor is
not empowered to record the statement of the witnesses. Thus the
prosecution has failed to establish the main foundation or base of
the offence alleged against the respondent. The prosecution has
failed to establish entrustment or dominion over the property by the
respondent accused nor the fact of dishonest misappropriation
nor the conversion of the property for his own use. Further, the so
called confessional statement has no evidentiary value in the eyes
of law and the same is not supported by independent, legal and
trustworthy evidence. On going through the Judgment and order
passed by the trial Court and the papers placed before me, I am of
the opinion that the trial Court has not committed any error in not
believing the case of the prosecution. 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. The learned Judge has rightly come to the
conclusion that the prosecution has miserably failed to prove the
case against the respondent accused.
Thus,
in my opinion, looking to the evidence on record, from the evidence
itself it is it clearly established that the prosecution has not
proved its case beyond reasonable doubt.
At
the out-set 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 Hon’ble Apex Court in catena of
decisions. 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 findings given by the lower
Court, then the discussion of evidence is not necessary.
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 reason to interfere with the same.
Hence, the Appeal is hereby dismissed.
In
view of above the Appeal is dismissed. The Judgment and order dated
31.3.2003 passed by the learned Chief Judicial Magistrate in
Criminal Case No. 2335 of 1998 is hereby confirmed. Bail bond, if
any, shall stands cancelled.
(Z.K.SAIYED,
J.)
sas
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