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CR.A/552/2002 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 552 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
-Yes.
2
To be
referred to the Reporter or not ? -No.
3
Whether
their Lordships wish to see the fair copy of the judgment ?
-No.
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 ? -No.
5
Whether
it is to be circulated to the civil judge ? -No.
=========================================================
PEOPLES
CO OP CREDIT SOC LTD THRO ITS MANAGER OR HIS - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
DILIP B RANA for
Appellant(s) : 1,
MS MINI NAIR, APP for Opponent(s) : 1,
NOTICE
SERVED for Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 17/02/2010
ORAL
JUDGMENT
1) The
appellant-original complainant has filed the present appeal under
Section-378 of the Code of Criminal Procedure, 1973 against the
judgement and order of acquittal dated 3/1/2002 passed by the learned
Judicial Magistrate, Khambhat in Criminal Case No.735 of 1997 whereby
the accused was acquitted of the charges leveled against him.
2) The
brief facts of the prosecution case are as under:
2.1) The
appellant society is a registered society under the Act and is
engaged in doing co-operative activities including grant of loans to
its members and the complainant is working as Manager of the society.
The accused is a member of the appellant society, and by virtue of
his being a member, he had applied for a short term loan of
Rs.5,000/- on 28/11/1996 and he was granted a short term loan of
Rs.4,000/- by the appellant society, and accordingly, a cheque
No.4224 dated 8/3/1997, drawn on the Cambay Hindu Merchant
C-operative Bank Ltd., Khambhat Branch was given to the appellant
society as a repayment of the loan amount. Said cheque was deposited
in the Khambhat District Central Co-op. Bank Ltd., Khambhat by the
appellant society on the same day i.e. on 8/3/1997. On depositing
the said cheque in the account of the appellant society, the bank
informed about the dishonor of the cheque with the reason: FUNDS
INSUFFICIENT . On receipt of the letter from the bank, the
appellant society gave notice on 19/3/1997 by Registered A.D. to the
respondent no.2 under the Negotiable Instruments Act, which was
returned back undelivered with the endorsement refused. Thereafter
the notice was given by U.P.C. on 15/4/1997 to the accused, but he
did not reply to the said notice and also he did not pay the amount
of the dishonoured cheque. Hence, the appellant society filed
complaint under Section-138 of the Negotiable Instruments Act being
Criminal Case No.735 of 1997 before the Judicial Magistrate First
Class, Khambhat. Accordingly the trial was initiated against the
accused.
2.2) To
prove the guilt against the accused the prosecution has examined
three witnesses and in order to support the case, the prosecution has
produced several documentary evidences.
2.3) At
the end of trial, after recording the statement of the accused
person under Section-313 of the Criminal Procedure Code and after
hearing arguments on behalf of prosecution and the defence, learned
Judicial Magistrate First Class, Khambhat by his judgement and order
dated 3/1/2002 has dismissed the complaint filed by the present
appellant-original complainant and passed the order of acquittal in
favour of the respondent-accused and thereby acquitted the
respondent-accused of all the charges leveled against him.
2.4) Being
aggrieved by and dissatisfied with the aforesaid judgement and order
passed by the learned Judicial Magistrate First Class, Khambhat, the
appellant-original complainant has preferred the present appeal.
3) Learned
advocate Mr. Dilip Rana for the appellant-original complainant
contended that the judgment and order of the learned Judicial
Magistrate is not proper, legal and it is erroneous. He has also
contended that the judgment impugned 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 prosecution has proved all the ingredients of
the evidence against the present respondent-accused. He has also
taken this Court through the oral as well as the entire documentary
evidence. He submitted that from the complaint and judgment of the
Court below, it is clearly established that the accused person was
found committing offence punishable under Section-138 of the
Negotiable Instruments Act. He further submitted that there was no
reason for the learned Judicial Magistrate to disbelieve the
prosecution case and to acquit the accused person.
4) 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.
4.1) 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.
4.2) 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.
4.3) 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.
In para 16 of the said decision the Court has observed as under:
16. From
the aforesaid decisions, it is apparent that while exercising the
powers in appeal against the order of acquittal the Court of appeal
would not ordinarily interfere with the order of acquittal unless the
approach of the lower Court is vitiated by some manifest illegality
and the conclusion arrived at would not be arrived at by any
reasonable person and, therefore, the decision is to be characterized
as perverse. Merely because two views are possible, the Court of
appeal would not take the view which would upset the judgement
delivered by the Court below. However, the appellate court has a
power to review the evidence if it is of the view that the conclusion
arrived at by the Court below is perverse and the Court has committed
a manifest error of law and ignored the material evidence on record.
A duty is cast upon the appellate court, in such circumstances, to
re-appreciate the evidence to arrive to a just decision on the basis
of material placed on record to find out whether any of the accused
is connected with the commission of the crime he is charged with.
4.4) 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.
4.5) It
is also a settled legal position that in acquittal appeal, the
appellate court is not required to re-write the judgement or to give
fresh reasonings, 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
wherein it is held as under:
& This
court has observed in Girija Nandini Devi V. Bigendra Nandini
Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty
of the appellate court when it agrees with the view of the trial
court on the evidence to repeat the narration of the evidence or to
reiterate the reasons given by the trial court expression of general
agreement with the reasons given by the Court the decision of which
is under appeal, will ordinarily suffice.
4.6) 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.
5) I
have gone through the judgement and order passed by the Trial Court.
I have also perused the oral as well as documentary evidence led by
the Trial Court and also considered the submissions made by learned
Advocate for the appellant-original complainant Mr. Dilip Rana. I
have perused the reasonings given by the Court below.
5.1) The
entire prosecution case rests on the statements of witnesses and
documentary evidences produced before the Court below. No doubt the
prosecution has produced sufficient evidences before the learned
Judicial Magistrate First Class to prove the case but the prosecution
was not able to convince the Trial Court. It appears from the
documentary evidence produced before the Trial Court that the
prosecution has failed to prove the case beyond reasonable doubt.
Today, before this Court also, learned
advocate Mr. Dilip Rana is not in a position to convince this Court
that the original complainant has followed the mandatory provisions
of the Negotiable Instruments Act. It appears from the oral as well
as documentary evidences produced before the Court below that the
provisions of the Negotiable Instruments Act are not followed
by the complainant which is fatal to the prosecution case. Hence it
appears that there is serious lacuna in the prosecution case and the
prosecution has failed to establish the case against the
respondent-accused. Therefore the Trial Court has rightly passed the
order of acquittal in favour of the accused and I do not find any
reason to interfere with the said finding of the Trial Court.
5.2) Thus,
from the evidence itself it is established that the prosecution has
not proved its case beyond reasonable doubt. Learned advocate for the
appellant-original complainant is not in a position to show any
evidence to take a contrary view of 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.
6) In
the above view of the matter, I am of the considered opinion that the
Trial Court was completely justified in 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.
(Z.K.
SAIYED, J.)
(ila)
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