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CR.A/370/1998 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 370 of 1998
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
PARSHOTTAMBHAI
CHHOTABHAI SOLANKI & 1 - Opponent(s)
=========================================================
Appearance
:
MR
DC SEJPAL, APP for Appellant(s) : 1,
NOTICE SERVED for Opponent(s)
: 1,
MR ANAND L SHARMA for Opponent(s) : 1,
UNSERVED-EXPIRED
(N) for Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 11/02/2010
ORAL
JUDGMENT
The
appellant – State of Gujarat has filed this Appeal under Section 378
of Cr. P.C. against the Judgment and order of acquittal dated
13.02.1998 passed by learned Chief Judicial Magistrate, Halol, in
Criminal Case No. 67 of 1984, whereby the respondents accused
have been acquitted from the charges levelled against them.
The
brief facts of the prosecution case are that on 28.4.1981 the
accused respondents with the help of each other have not paid
amount of Rs.5000/- to the hutments which have been granted by the
Government for their benefit by preparing bogus record and
misappropriate the amount and committed the breach of trust and
thereby they have committed the offence. Therefore, complaint for
the offences under Sections 409, 468, 114 of I.P. Code has been
filed against the accused respondents.
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 respondents accused from the charges levelled against them,
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
APP, 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. The learned APP has
contended that the money was given for the purpose of utilisation
for poor people which was utilized by the accused for their personal
benefit and the confessional statement was made before the T.D.O.
Learned APP has also taken this Court through the oral as well as
documentary evidence.
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. Looking to the evidence of complainant it appears that the
complainant has no personal knowledge and from the inquiry report
complaint has been filed.
I
have also 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 found that most of the
witnesses have not supported the case of prosecution. The trial
Court has also observed that none of the witnesses have deposed that
present accused was entrusted and dominion over the property. The
trial Corut has also found that there is not a single iota of
evidence to connect the accused with the alleged crime. 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 respondents
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
13.2.1998 passed by the learned Magistrate in Criminal Case No. 67
of 1984 is hereby confirmed. Bail bond, if any, shall stands
cancelled.
(Z.K.SAIYED,
J.)
sas
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