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CR.A/411/2003 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 411 of 2003
=========================================
STATE
OF GUJARAT - Appellant(s)
Versus
GANPATBHAI
RAMJIBHAI VANKAR - Opponent(s)
=========================================
Appearance
:
MR HL JANI,
LD. ADDL. PUBLIC PROSECUTOR for
Appellant(s) : 1,
MR SHAKIL S SHAIKH for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 23/08/2010
ORAL
ORDER
The
appellant has preferred this Appeal under Section 378 of the Code of
Criminal Procedure, 1973 against the Judgment and Order of acquittal
dated 18th September 2002 passed by the learned Judicial
Magistrate First Class, Dabhol, in Criminal Case No.2556 of 1988 for
the offences punishable under Sections 409 and 477(A) of the Indian
Penal Code, whereby the learned Magistrate has acquitted the
respondents-accused of the charges levelled against them.
The
short facts of the prosecution case is that the respondent-accused
was serving as Clerk in Vadodara Bhagol R.S. Post Office during the
period from 05th June 1980 to 07th January
1983. It is the case of the prosecution that during the aforesaid
period, the respondent-accused did not credit the amount collected
from the Savings Bank Account holders, CTD Account and Time Deposit
Account holders in the concerned registers and by forging the
signature of respective account holders, the respondent-accused has
misappropriated an amount of Rs.84,080.70 paisa for his personal use
and thereby committed offence under Section 409 and 477(A) of the
Indian Penal Code. When the said facts came to the notice,
complaint was filed with Dabhol Police Station against the
respondent-accused and after investigation, respondent-accused was
charge-sheeted for the said offences.
Thereafter
the trial was conducted before the learned Magistrate. 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 Magistrate has acquitted the
respondent-accused from the charges alleged against him by Judgment
and Order of acquittal dated 18th September 2002.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 18th September 2002 passed by the learned
Judicial Magistrate First Class, Dabhol, in Criminal Case No.2556 of
1988, the appellant-State of Gujarat, has preferred the above
mentioned Criminal Appeal.
I
have heard Mr.H.L. Jani, learned Additional Public Prosecutor for
appellant. I have also gone through the papers and the Judgment and
Order passed by the learned Magistrate.
Mr.Jani,
learned Additional Public Prosecutor, has contended that the
Judgment and Order of acquittal passed by the learned Magistrate is
not proper, legal and it is erroneous. He has also argued that the
learned Magistrate has not considered the evidence of the
complainant. He has also contended that the learned Magistrate has
passed the order without appreciating the facts of the case. He has
contended that the learned Magistrate ought to have considered the
fact that the respondent-accused has credited the amount in
passbook; however, the same was not entered into the concerned
register. He has further contended that the respondent-accused has
forged the signature of the account holders and thereby committed
the offence under Sections 409 and 477(A) of the Indian Penal Code.
He has further contended that the respondent-accused has
misappropriate huge amount of Rs.84,080.70 paisa. Prosecution has
also proved beyond reasonable doubt the case against the
respondent-accused. He, therefore, contended that the order of
acquittal passed by the learned Magistrate is without appreciating
the facts and evidence on record and is required to be quashed and
set aside by this Hon’ble Court.
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.
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
judgment 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 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.
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,
wherein it is held as under:
…
This court has observed in Girija
Nandini Devi Vs 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.
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
counsel for the parties.
The
trial Court has, after appreciating the oral as well as documentary
evidence, found that the prosecution has failed to prove that the
respondent-accused was in possession of Passbook, Ledger Card and
Registers. Even prosecution has failed to produce on record any
complaint of account holder regarding misappropriation of funds of
his money by the respondent-accused. The trial Court has also
observed that the prosecution has failed to prove that the
respondent-accused had misappropriated the amount. Even, witnesses
have also not supported the case of the prosecution. Thus, the
prosecution has failed to prove the case beyond reasonable doubt
against the respondent-accused. The prosecution has failed to prove
ingredients of Section 409 and 477(A) of the Indian Penal Code
against the respondent-accused. 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-accused in the present appeal. The prosecution has
miserably failed to prove the case against the respondents-accused.
Thus, from the evidence itself it is established that the
prosecution has not proved its case beyond reasonable doubt.
Mr.H.L.
Jani, learned Additional Public Prosecutor, 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-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. Record
and Proceedings to be sent back to the trial Court, forthwith. Bail
bonds, if any, shall stands cancelled.
(Z.
K. Saiyed, J)
Anup
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