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CR.A/1043/1999 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1043 of 1999
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 ?
=========================================
RAMESHBHAI
SHANABHAI PATEL - Appellant(s)
Versus
SURESHCHADNRA
SHANKARLAL PAREKH & 1 - Opponent(s)
=========================================
Appearance :
MR
AS PANESAR FOR MR SS PANESAR for
Appellant(s) : 1,
MR PV HATHI for Opponent(s) : 1,
MR HL JANI,
LD. ADDL. PUBLIC PROSECUTOR for Opponent(s) :
2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 17/01/2011
ORAL
JUDGMENT
The
appellant-original complainant has preferred the present appeal
under Section 378 of the Code of Criminal Procedure, 1973 against
the Judgment and Order of acquittal dated 26th February
1999 passed by the learned 4th Joint Civil Judge (JD) and
Judicial Magistrate First Class, Godhra, in Criminal Case No.2026 of
1999 for the offences punishable under Section 138 of the Negotiable
Instruments Act by which the learned Judge was pleased to acquit the
respondent No.1-accused of the charges levelled against him.
The
short facts of the prosecution case is that the present appellant
and the respondent No.1-accused knew each other and therefore, at
the request of the respondent No.1-accused, the appellant advanced
loan of Rs.60,000/- to the respondent No.1-accused. It is also the
case of the prosecution that in this connection the respondent
No.1-accused issued an Account Payee cheque bearing No.748965 dated
16th September 1996 of Rs.30,000/- drawn on Bank of
Baroda, Station Road, Godhra in favour of the present appellant
towards part payment. It is the case of the present appellant that
however, upon presenting the said cheque for clearing, the same was
dishonoured due to insufficient funds in the account of the
respondent No.1-accused. It is the case of the prosecution that
therefore the appellant issued statutory notice dated 26th
September 1996 to the respondent No.1-accused which returned with an
endorsement “unclaimed”. Therefore, the appellant filed
a criminal complaint bearing No.2026 of 1996 against the respondent
No.1-accused under Section 138 of the Negotiable Instruments Act.
Thereafter
summons was issued against the respondent No.1-accused and as the
respondent No.1-accused has not pleaded guilty, evidence on behalf
of the appellant-complainant was exhibited. The prosecution has
produced oral as well as documentary evidence in support of the
case. After filing closing pursis, further statement of the
respondent No.1-accused was recorded under Section 313 of the Code
of Criminal Procedure, 1973. In his statement, the respondent
No.1-accused has denied the case of the prosecution and claimed to
be tried.
Thereafter,
trial was conducted before the learned Judge. To prove the case of
the prosecution, prosecution has produced oral as well as
documentary evidence. After considering the oral as well as
documentary evidence, the learned Judge was pleased to acquit the
respondent No.1-accused from the charges alleged against him by the
Judgment and Order of acquittal dated 26th February 1996.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 26th February 1996 passed by the learned
4th Joint Civil Judge (JD) and Judicial Magistrate First
Class, Godhra in Criminal Case No.2026 of 1996, the
appellant-original complainant, has preferred the above mentioned
Criminal Appeal.
Heard
Mr.A.S. Panesar, learned counsel for Mr.S.S. Panesar, learned
counsel for the appellant, Mr.P.V. Hathi, learned counsel for the
respondent No.1 and Mr.H.L. Jani, learned Additional Public
Prosecutor appearing for the respondent No.2-State. I have also gone
through the papers produced before me and the Judgment and Order
passed by the learned Magistrate.
Mr.Panesar,
learned counsel for the appellant, has contended that the Judgment
and Order of acquittal passed by the learned Judge is not proper,
legal and it is erroneous. He has also argued that the learned Judge
has not considered the evidence of the witnesses. He has contended
that the learned Judge has grossly erred in arriving at the
conclusion of non-production of original cheque in question, which
was produced on record later on during the cross-examination of the
appellant. He has also contended that the learned Judge has failed
to consider the deposition of the officer of the Bank, who has
categorically stated that the cheque in question was dishonoured
because of insufficient funds in the account of the respondent No.1.
He has contended that the prosecution has proved its case against
the respondent No.1-accused beyond reasonable doubt. He, therefore,
contended that the order of acquittal passed by the learned Judge is
without appreciating the facts and evidence on record and is
required to be quashed and set aside by this Hon’ble Court.
Mr.Hathi,
learned counsel for the respondent No.1-accused has contended that
absolutely false case is filed against the respondent No.1. He has
also contended that this is a offence of 138 of the Act and without
any documentary evidence, prosecution cannot prove the case. He has
also read the cross-examination of the complainant as well as
officer of the Bank and argued that prosecution has failed to prove
its case beyond reasonable doubt. He, therefore, contended that the
present appeal is required to be quashed and set aside in the
interest of justice.
It
is a settled legal position that in acquittal appeal, the Appellate
Court is not required to re-write the judgment or to give fresh
reasonings when the Appellate Court is in agreement with the reasons
assigned by the trial Court acquitting the accused. In the instant
case, this Court is in full agreement with the reasons given and
findings recorded by the trial Court while acquitting the
respondents-accused and adopting the said reasons and for the
reasons aforesaid, in my view, the impugned judgment is just, legal
and proper and requires no interference by this Court. Hence, this
appeal requires to be dismissed.
Even
in a recent decision of the Apex Court in the case of State
of Goa Vs. 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 order of acquittal passed by the learned Magistrate. I have also
perused the oral as well as documentary evidence led before the
trial Court and also considered the submissions made by learned
advocates for the parties.
The
trial Court has, after appreciating the oral as well as documentary
evidence, observed that the appellant and the respondent
No.1-accused knew each other. It is also observed by the learned
Judge that the complainant was failed to produce on record cheque
return memo or notice. Even original cheque was also not produced on
record though it was with him. The learned Judge has also observed
that even officer of the Bank had also not produced any documentary
evidence on record. Even the appellant-original complainant has not
proved that the statutory notice was served upon the respondent
No.1-accused. It transpires from the papers that the notice was not
served upon the respondent No.1-accused and returned unserved. It is
also observed by the learned Judge that the prosecution has failed
to prove beyond reasonable doubt the ingredient of Section 138 of
the Negotiable Instruments Act. The trial Court has observed that
there are serious lacuna in the oral as well as documentary evidence
of prosecution. Nothing is produced on record of this appeal to
rebut the concrete findings of the Trial Court.
Thus,
the appellant could not bring home the charges against the
respondent No.1-accused in the present appeal. The prosecution has
miserably failed to prove the case against the respondent
No.1-accused. Thus, from the evidence itself it is established that
the prosecution has not proved its case beyond reasonable doubt.
Mr.Panesar,
learned counsel 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
No.1-accused of the charges levelled 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
trial Court and hence find no reasons to interfere with the same.
Hence the appeal is hereby dismissed. The
Judgment and Order of acquittal dated 26th
February 1996 passed by the learned 4th
Joint Civil Judge (JD) and Judicial Magistrate First Class, Godhra,
in Criminal Case No.2026 of 1996 is hereby confirmed. Bail bond, if
any, shall stands discharged. Record and Proceedings, if any, be
sent back to the trial Court concerned, forthwith.
(Z.
K. Saiyed, J)
Anup
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