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CR.A/2152/2009 3/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2152 of 2009
=========================================================
SAROJBEN
MAHESHBHAI THAKKAR - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
VM PANCHOLI for
Appellant(s) : 1,
MR HL JANI, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
MR DR BHATT for Opponent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 17/02/2010
ORAL
ORDER
The
appellant had filed this Appeal under Section 378(4) of the Code of
Criminal Procedure, 1973 against the judgment and order of acquittal
dated 12th October 2009 passed by the learned
Metropolitan Magistrate, Negotiable Instrument Act, Court No.7,
Ahmedabad, in Criminal Case No.465 of 2008, whereby the
respondent accused has been acquitted from the charges levelled
against him.
The
brief facts of the prosecution case is that the respondent-accused
was serving in the shop of husband of the original complainant and
thus, the appellant-original complainant knows the
respondent-accused. It is also the case of the prosecution that
respondent-accused had requested the present appellant to give him
Rs.50,000/- (Rupees Fifty Thousand Only) for some time, the present
appellant had given the said amount to the respondent-accused. It is
the case of the prosecution that thereafter, when the present
appellant demanded the said amount, the respondent-accused gave
false promises. Thereafter, the respondent-accused gave a cheque
bearing No.169706 dated 11th July 2006 for Rs.50,000/-
drawn on The Kalupur Commercial Co-operative Bank Limited, Ashram
Road. However, when the appellant presented the said cheque with
his banker i.e. The Kalupur Commercial Co-operative Bank Limited,
Vastrapur Branch on 11th July 2006, the said cheque was
returned dishonoured with endorsement Account Closed , which
was intimated by the banker to the present appellant on 13th
July 2006. It is also the case of the prosecution that because of
this, the appellant issued statutory notice through her advocate to
the respondent-accused under Section 138 of the Negotiable
Instrument Act on 20th July 2006 by RPAD and UPC. Though
the said notice was served upon the respondent-accused on 21st
July 2006, neither the respondent-accused replied the said notice
nor the respondent-accused made payment of the cheque amount.
Therefore, the present appellant filed complaint in the court of
learned Magistrate.
Thereafter,
the trial was initiated 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 the trial, the
learned Magistrate has acquitted the respondent accused from the
charges levelled against him, vide judgment and order dated 12th
October 2009 in Criminal Case No.465 of 2008.
Being
aggrieved by and dissatisfied with the said judgment and order
passed by the learned Magistrate, the appellant has filed the
present Appeal.
Mr.
V.M. Pancholi, learned advocate 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-accused. Learned advocate appearing on behalf
of the appellant 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 advocate on behalf of
the appellant. I have also gone through the papers and the judgment
and order passed by the Trial Court.
Thus,
in my opinion, looking to the evidence on record, from the evidence
itself, it is clearly established that the prosecution has not
proved its case beyond reasonable doubt.
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 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
have 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 of both the sides. 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. It is observed that as
per the say of the present appellant, the respondent-accused was
served with the appellant from the year 1995 to 2000. When the
respondent-accused left the services in the year 2000, there is no
reason explained by the prosecution to give Rs.50,000/- to the
respondent-accused in the year 2004. It is also observed that vide
Application dated 11th May 2007 the respondent-accused
has prayed before the learned Trial Court to obtain opinion of the
hand writing expert. Hand writing expert was also examined. As per
the opinion of the hand writing expert, 9 is replaced by 7
and second 9 is replaced by 0 . It is also observed that
prosecution has not taken initial of the respondent-accused where
the respondent-accused changed 06 in place of 96 . It is
also observed that as per the case of the present appellant when
there was initial of the respondent-accused at change made in month,
then why the present appellant had not obtained initial of the
respondent-accused at change made in the year. This conduct of the
appellant is doubtful. Further, neither the appellant has mentioned
in her notice that the respondent-accused had given the appellant
the cheque with certain corrections nor she has contended the said
fact in her cross-examination. Thus, when as per the opinion of the
hand writing expert it is proved that the cheque in question is
altered one, the case of the prosecution is not believable. It is
also observed that the prosecution has miserably failed to prove its
case beyond reasonable doubt against the respondent-accused. 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 respondent accused.
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 at the admission stage.
In
view of above, the Appeal is dismissed. The judgment and order dated
12th October 2009 passed by the learned Metropolitan
Magistrate, Negotiable Instrument Act, Court No.7, Ahmedabad in
Criminal Case No.465 of 2008 is hereby confirmed. Record and
Proceedings to be sent back to the concerned Trial Court, forthwith.
Bail bond, if any, shall stands cancelled.
(Z.
K. Saiyed, J)
Anup
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