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CR.A/635/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 635 of 2010
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
KHUSHBUBEN
KANTILAL PATEL - Opponent(s)
=========================================================
Appearance
:
MR.
H.L. JANI, LD. ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 09/12/2010
ORAL
ORDER
The
appellant-State of Gujarat, has preferred the present appeal under
Section 378 of the Code of Criminal Procedure, 1973 against the
judgment and order of acquittal dated 27th March 2009
passed by the learned Additional Principal Judge, Court No.2,
Ahmedabad in Criminal Appeal No.75 of 2008, whereby the learned
Judge has quashed and set aside the judgment and order of conviction
dated 08th August 2008 passed by the learned Metropolitan
Magistrate, Court No.11, Ahmedabad in Criminal Case No.174 of 2005,
and acquitted the respondent-accused of the charges levelled against
him.
The
short facts of the prosecution case is that on 19th
December 2004 original complainant-M.D. Waghela, Police Sub
Inspector, Immigration, Sardar Vallabhbhai Patel International Air
Port, Ahmedabad was on duty. It is the case of the complainant that
on checking, one passenger of Flight No.A.I. 121 found with British
Passport No.492668057, who was residing at Belgium. When it was
inquired as to how he had obtain British Passport, he explained that
by giving 2000 Euro he had obtained British Passport from one
Pakistani citizen. It is the case of the complainant that said Shri
Rameshbhai Patel had used the said Passport and came to India from
Paris on 10th December 2004 and on 19th
December 2004 while he tried to go to Paris, said Shri Patel was
stopped at Mumbai. It is also the case of the complainant that on
inquiry it was found that the Passport was bogus. Thus, by using
bogus Passport, the respondent-accused had obtained Indian Visa and
tried to go to Paris from Ahmedabad. Therefore, FIR being C.R.
No.I-318 of 2004 came to be registered with Sardarnagar Police
Station for the offences punishable under Sections 120(B), 201, 420,
465, 467, 468 and 471 of the Indian Penal Code and under Sections
10(3)(f) and 12 of the Indian Passport Act.
On
the basis of complaint, investigation was carried out. On completion
of the investigation, since the Investigating Officer found
prima-facie case against the respondent-accused, charge-sheet came
to be filed before competent court and was registered as Criminal
Case No.174 of 2005.
Thereafter,
charge was framed against the respondent-accused by the learned
Metropolitan Magistrate, Court No.11, Ahmedabad. Thereafter, charge
was read over and statement of respondent-accused came to be
recorded wherein the respondent-accused pleaded not guilty and
claimed to be tried.
The
prosecution has examined 63 witnesses and relied upon their oral
evidence. The prosecution has also produced 52 documents to prove
the case against the respondent-accused. Thereafter, when the
prosecution has filed closing pursis, the learned Magistrate
recorded further statement of the respondent-accused under Section
313 of the Code of Criminal Procedure, 1973. The respondent-accused
denied the case of the prosecution and submitted that he has been
roped in a false case.
Thereafter
the trial was conducted before the learned Magistrate. After hearing
both the sides, the learned
Magistrate by his order dated 08th August
2008 convicted the respondent-accused for the offences punishable
under Sections 465, 467, 468 and 471 of the Indian Penal Code and
sentenced him to undergo simple imprisonment for a period of one
year and also imposed fine amount of Rs.05,000/-, and in default of
payment of fine, ordered to undergo simple imprisonment for a
further period of one month. The learned Magistrate also convicted
the respondent-accused for the offences punishable under Section
10(3)(f) and 12 of the Indian Passport Act and sentenced him to
undergo simple imprisonment for a period of three months and also
imposed fine of Rs.01,000/-, and in default of payment of fine,
ordered to undergo simple imprisonment for a period of 15 days.
Being
aggrieved by and dissatisfied with the said Judgment and Order of
conviction and sentence dated 08th August 2008 passed by
the learned Metropolitan Magistrate, Court No.11, Ahmedabad in
Criminal Case No.174 of 2005, the present respondent-accused has
preferred Criminal Appeal No.75 of 2008 before the learned City
Sessions Court, Ahmedabad wherein the learned Additional Principal
Judge, Court No.2, Ahmedabad by his order dated 27th
March 2009 was pleased to set aside the judgment and order of
conviction and sentence dated 08th August 2008 passed by
the learned Metropolitan Magistrate, Court No.11, Ahmedabad in
Criminal Case No.174 of 2005 and was pleased to acquit the present
respondent-accused.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 27th March 2009 passed by the learned
Additional Principal Judge, Court No.2, Ahmedabad in Criminal Appeal
No.75 of 2008, the appellant-State of Gujarat, has preferred the
above mentioned Criminal Appeal.
Heard
Mr.H.L. Jani, learned Additional Public Prosecutor, appearing on
behalf of the appellant-State and Mr.R.C. Jani, learned counsel for
the respondent-accused. I have also gone through the papers and the
Judgment and Orders passed by both the Courts below.
Mr.H.L.
Jani, learned Additional Public Prosecutor 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 the learned
Magistrate has properly appreciated the facts of the case and has
passed absolutely just and proper order of conviction and sentence.
He has also contended that the learned Additional Principal Judge
has not properly appreciated the case of the prosecution and has
acquitted the respondent-accused. He has also contended that the
learned Judge has not given sufficient opportunity to the
prosecution to examine material witnesses. He has further contended
that the respondent-accused has failed to produce on record any
evidence. He has also contended that there is no reason to
disbelieve the evidence and statements of witnesses produced on
record by the prosecution. He, therefore, contended that the order
dated 27th March 2009 passed by the learned Additional
Principal Judge, Court No.2, Ahmedabad may kindly be quashed and set
aside.
Mr.R.C.
Jani, learned counsel for the respondent-accused has vehemently
opposed the present appeal and argued that the order of acquittal
passed by the learned Additional Principal Judge is absolutely just
and proper. The learned Judge has after appreciating all the
evidence and statements produced on record, acquitted the
respondent-accused.
I
have gone through the judgment and order of the trial Court as well
as Sessions Court. I have also perused the reasons assigned by both
the Courts below.
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.
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 Courts below.
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 judgment and order passed by the trial Court as well as of the
Sessions Court. I have also perused the oral as well as documentary
evidence led before the Courts below and also considered the
submissions advanced by the learned counsel for the parties.
After
appreciating the oral as well as documentary evidence, the learned
Additional Principal Judge has observed that the learned
Metropolitan Magistrate has improperly come to a conclusion that
there was a contravention of the provisions by the
respondent-accused on the basis of an uncorroborated fax message and
that too a xerox copy of such fax message without any supporting
evidence whatsoever being relied upon by the prosecution in that
regard. It is also observed by the learned Additional Principal
Judge that the learned Metropolitan Magistrate has wrongly come to a
conclusion that contravention as contemplated under Section 10(3)(f)
of the Indian Passports Act was committed by the respondent-accused
without examining any expert or relevant witnesses from the British
High Commission in that regard. It is also observed that the
prosecution has failed to prove beyond reasonable doubt the case
against the respondent-accused. The learned Additional Principal
Judge 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 Court
below.
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 respondent-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 Court below is vitiated by some manifest illegality
or that the decision is perverse or that Court below has ignored the
material evidence on record.
In
above view of the matter, I am of the considered opinion that the
learned Additional Principal Judge has completely justified in
acquitting the respondent-accused of the charges levelled against
him. I find that the findings recorded by the learned Judge 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
learned Additional Principal Judge, Court No.2, Ahmedabad in
Criminal Appeal No.75 of 2008 whereby the learned Judge has quashed
and set aside the judgment and order of conviction dated 08th
August 2008 passed by the learned Metropolitan Magistrate, Court
No.11, Ahmedabad in Criminal Case No.174 of 2005, and acquitted the
respondent-accused of the charges levelled against him. Hence, the
present appeal is hereby dismissed. Bail bond, if any, shall stands
cancelled. Record and Proceedings, if any, be sent back to the
concerned trial Court, forthwith.
(Z.
K. Saiyed, J)
Vahid
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