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CR.A/1596/2009 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1596 of 2009
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STATE
OF GUJARAT (FOR & ON BEHALF OF P P JOSHI, GOVT LABOUR -
Appellant(s)
Versus
ARVINDBHAI
HARJIVANDAS KOTHARI MANAGER, J M BAXI & CO. & 1 - Opponent(s)
=========================================================
Appearance
: MR
DC SEJPAL, APP for Appellant(s) : 1,
None for Opponent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 03/02/2010
ORAL
ORDER
The
present appeal, under Section 378(4) of the Code of Criminal
Procedure, 1973, is directed against the Judgment and order of
acquittal dated 29.04.2009 passed by the learned 6th
Additional Senior Civil Judge & JMFC, Jamnagar, in Criminal
Case No. 1452 of 1983, whereby the learned Magistrate has acquitted
the respondent accused from the charges alleged against him.
The
short facts of the prosecution case is that the complainant is the
Government Labour Officer and Minimum Wages Inspector and the are
accused No.1 is the Manager of accused No.2 company, respondents
herein. It is alleged that the complainant, along with other
officer, has visited the respondent company where he found that
the accused have not kept the Salary Register and Presence Register
in accordance with law and has also not provided the presence card
to the workers of the company and thereby the accused have committed
the breach of Rule 26(5), 26(1) and 26(B) of the Minimum Wages
Rules, 1961. The complainant has also recorded the statements of
some of the workers. It is alleged that, as per the record, on
1.1.1982 Mr. M.R. Pathan has visited the factory of the accused and
issued certain instructions. Thereafter, the complaint has been
filed against the accused for initiating the proceeding under
Section 22(c) of the 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
respondents accused from the charges alleged against them, vide
Judgment and order dated 29.04.2009.
Being
aggrieved and dissatisfied with the said Judgment and order dated
29.04.2009 passed by the learned Magistrate, in Criminal Case No.
1452 of 1983, the appellant State of Gujarat, has preferred the
above mentioned Criminal Appeal.
I
have heard learned A.P.P., appearing on behalf of the appellant
State. I have also gone through the papers and the Judgment and
order passed by the trial Court.
Learned
APP for the appellant has taken me through the evidence of
prosecution witnesses and the documentary evidence and submitted
that from the above evidence it is established that the prosecution
has successfully proved its case beyond reasonable doubt. He has
contended that the complainant was authorized officer to visit the
place and, therefore, there is no question to disbelieve the case of
prosecution by holding that investigation was not done lawfully. He
has also contended that as per prescribed rules every institution
requires to maintain register in a prescribed form. He has also
contended that the rights and privileges of the workers working in
certain sections ought to have been maintained under the Rules and
Regulations. 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.
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. From the
evidence of complainant (Exh.15) it appears that he has never made
any signature in the visit book. The trial Court has also found that
the conduct of the complainant was doubtful.
The
trial court has, after appreciating the oral as well as documentary
evidence, has found that investigation was not properly done as
provided under Section 19 of the Act. The trial Court has also
observed that the complainant has not seized the record of the case.
The learned Magistrate has also found that the story put-forward by
the prosecution is not believable. The trial Court has also found
that there are serious lacunae 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 charge against
the respondents 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
APP 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 respondents
of the charges leveled against them. 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.
In
view of above the Appeal is dismissed. The judgment and order dated
29.04.2009 passed by the learned Magistrate, in Criminal Case No.
1452 of 1983 acquitting the respondents – accused from the charges
alleged against them 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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