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CR.A/470/2009 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 470 of 2009
=========================================================
PATEL
KACHARABHAI PRABHUDAS - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
PRATIK B BAROT for
Appellant(s) : 1,
MR HL JANI, APP for Opponent(s) : 1,
MR
RAKESH R PATEL for Opponent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 11/02/2010
ORAL
ORDER
The
appellant original complainant has preferred this Appeal under
Section 374(4) of the Code of Criminal Procedure against the
Judgment and order dated 06.02.2009 passed by the learned Judicial
Magistrate, First Class, Mehsana, in Criminal Case No. 3962 of 2004
whereby the learned Magistrate has acquitted the respondent
accused from the charges levelled against her.
The
short facts of the prosecution case is that the present respondent
No.2 accused and her husband were having good terms with the son
of complainant and were usually dealing in money transactions with
them in past. It is alleged that taking an advantage of good
relations the respondent No.2 had borrowed the sum of Rs.2,00,000/-
from the original complainant, against which the respondent No.2 had
issued cheque of Rs.2,00,000/- dated 29.6.2004. It is alleged that
the said cheque deposited in the bank was returned with an
endorsement balance insufficient stop payment on
12.7.2004. Therefore, the Notice was issued by the complainant to
the accused on 23.7.2004, however, the accused have not paid the
said amount. Thereafter the appellant complainant filed
complaint against the accused for the offence under Section 138 of
the Negotiable Instrument Act.
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 acquitted the
respondent No.2 accused from the charge alleged against her,
vide Judgment and order dated 6.2.2009.
Against
the said Judgment and order dated 6.2.2009 passed by the learned
Magistrate in Criminal Case No. 3962 of 2004, the appellant
original complainant had preferred the above mentioned Criminal
Appeal.
I
have heard learned Advocate Mr. Pratik Barot, appearing on behalf of
the appellant original complainant and learned APP Mr. H.L.
Jani, 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 on account of good
relation between the complainant and the accused and as the accused
was in need of money the amount was given to the accused and for
that purpose only the accused had issued the cheque to the
complainant. He, therefore, contended that the Judgment and order
passed by the learned Magistrate is without appreciating the facts
and evidence on record.
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
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.
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.
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. Learned Advocate for the appellant is not in a
position to convince this Court about the alleged transaction
between the complainant and the accused. He is also not in a
position to convince this Court that the prosecution has proved the
main ingredients of Section 138 of the Negotiable Instrument Act.
When the person is not having money lending licence then he cannot
deal with money transaction.
The
trial 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 found that the prosecution has not proved the
legal dues. The trial Court has also found that from the deposition
of the witness it is not proved that the accused has borrowed the
money from the complainant. 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 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
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 not believing the case of
the prosecution and acquitting the respondent accused 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.
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.
20. In
view of above the Appeal is dismissed. The judgment and order dated
06.02.2009 passed by the learned Magistrate, in Criminal Case No.3962
of 2009, 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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