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CR.A/626/2007 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 626 of 2007
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 ?
=========================================================
DILIPBHAI
I. MISTRY - Appellant(s)
Versus
SUSHIL
CASTING & 4 - Opponent(s)
=========================================================
Appearance
:
MR
RUSHABH SHAH for MR JB PARDIWALA
for
Appellant(s) : 1,
MR NILESH M SHAH for Opponent(s) : 1 - 4.
MR
MAYANK DESAI for Opponent(s) : 1 - 4.
MR DIVYESH SEJPAL, APP for
Opponent(s) :
5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 12/01/2010
ORAL
JUDGMENT
The
present appeal, under Section 378 of the Code of Criminal Procedure,
1973, is directed against the Judgment and order of acquittal dated
16.06.2005 passed by the learned Additional Chief Judicial
Magistrate, Gandevi, in Criminal Case No. 587 of 2001, whereby the
learned Magistrate has acquitted the respondents original
accused from the charges levelled against them.
The
brief facts of the case are that the respondents accused are the
partners and doing the business in the name of Sushil Casting
As the respondents accused were in need of money they met the
complainant at Bilimora and asked for Rs.1 lacs. The complainant
thereupon paid Rs.1 lac on giving the A/c Payee cheque of Rs.1 lac
by the original accused No.4 as partner of said Firm bearing Cheque
No.117264 dated 30.10.2000 drawn on Praga Sahakari Bank Ltd.,
Alembic Colony, Vadodara. The complainant deposited the said cheque
for encashment on 20.12.2000 in Bank of Baroda, Gauhar Bag,
Bilimora, but, the said cheque has been dishonoured by the Bank on
the ground of insufficient balance. Therefore, the complainant
demanded money by giving statutory notice on 18.1.2001 to the
accused. However, the accused did not pay the said amount to the
complainant. Thereafter the complainant filed complaint against the
respondents accused for the offence under Section 138 of the
Negotiable Instruments Act, in the Court of learned Magistrate.
To
prove the case against the present respondents accused, the
prosecution has examined the complainant vide Exh. 54 and also
produced documentary evidence vide Exh. 55 to 64.
At
the end of trial, after recording the statement of the accused under
Section 313 of Cr.P.C., and after hearing the arguments on behalf of
the prosecution and the defence, the learned Magistrate has
acquitted the accused of all the charges levelled against him by
Judgment and order dated 16.06.2005 in Criminal Case No.587 of 2001.
Being
aggrieved by and dissatisfied with the Judgment and order passed by
the trial Court the appellant original complainant has preferred
the present Appeal.
Heard
learned Counsel Mr. Rushabh Shah, appearing for Mr. J.B. Pardiwala,
on behalf of appellant original complainant, learned Counsel
appearing for the respondents – accused and learned APP, on behalf
of the State.
It
has been contended by the learned Counsel for the appellant that the
Judgment and order of the trial Court is against the provisions of
law; the trial Court has not properly considered the evidence led by
the prosecution and looking to the provisions of law, it is
established that the trial Court has erred in not believing the case
of the complainant. He also contended that the ingredients of
Section 138 of the Act is also proved against the accused. He has
also contended that once the execution of the cheque is denied then
unless it is established through acceptable evidence by the defence
to show that the cheques were misused then and then only the trial
Court can look into the other evidence. He also contended that the
cheques were not issued by the appellant in connection with any
business transaction. He has also contended that that the trial
Court has not considered the entire evidence produced on record He,
therefore, contended that the trial Court has committed grave error
in not believing the case of the complainant.
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 curtail 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.
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 V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75,
the Court has reiterated the powers of the High Court in such
cases.
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. I have also gone through the
decisions cited by the learned Advocate for the appellant. In the
facts of the case, in my opinion, the said decision would not be
applicable to the facts of the present case.
The
trial court, after appreciating the oral as well as documentary
evidence, has found that the complainant has not been able to
satisfactory explained as to from where did he get the money to be
paid to the accused. The trial Court has also observed that
complainant has not proved the debt which is legally enforceable
against the accused. The trial Court has also clearly found that the
complainant has failed to prove the involvement of accused Nos.1 to
3. The trial Court has also found nothing is produced on record to
rebut the concrete findings of the trial 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 charge levelled against the respondent
accused. Thus, from the
evidence itself it is established that the prosecution has not
proved its case as alleged against the accused 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
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 of
the charges leveled 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. The prosecution is unable to prove the main ingredients of
Section 138 of Negotiable Instrument Act.
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
16.06.2005 passed by the learned Magistrate, in Criminal Case No.
587 of 2001 acquitting the respondents accused of the offences
charged against them is hereby confirmed. Bail bonds, if any, shall
stand cancelled. Record & Proceeding may be sent back to the
trial Court.
(Z.K.SAIYED,
J.)
sas
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