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CR.A/2283/2004 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2283 of 2004
=========================================================
THE
STATE OF GUJARAT - Appellant(s)
Versus
NAYAK
JAGDISHKUMAR BABALDAS - Opponent(s)
=========================================================
Appearance
:
MR
DEVANG VYAS, LD. ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
NOTICE SERVED for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 16/07/2010
ORAL
ORDER
The
appellant-State of Gujarat, has preferred this Appeal under Section
378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgment and order of acquittal dated 06th November 2004
passed by the learned Additional Sessions Judge, Fast Track Court
No.3, Patan, in Criminal Appeal No.02 of 2004, whereby the learned
Judge has quashed and set aside the judgment and order of conviction
dated 31st December 2003 passed by the learned Chief
Judicial Magistrate, Patan, in Criminal Case No.13 of 2002, and
acquitted the respondent original accused from the charges
levelled against him.
The
short facts of the prosecution case is that the respondent-accused
in connivance with other accused person committed fraud by
purchasing medicines as well as equipment between the period 15th
October 1988 and 25th August 1991. It is further the case
of the prosecution that the respondent-accused had made payment of
medicines though the said medicines were not received in the
hospital. It is also the case of the prosecution that the accused
person also sold the medicine and equipment in the open market and
thereby shown less stock in the hospital and thus, they have
committed misappropriation of government money to the tune of
Rs.02,52,763.90 paisa. Therefore, complaint was filed against the
accused person in the Chanasma Police Station for the offences under
Sections 420, 467, 468, 409 and 114 of the Indian Penal Code. After
investigation, charge-sheet came to be filed against the
respondent-accused in the Court of learned Chief Judicial
Magistrate, Patan.
Thereafter
the trial was conducted before the learned Magistrate. After
considering the oral as well as documentary evidence the learned
Magistrate by his judgment and order dated 31st December
2003 held the respondent accused guilty of the offence under
Sections 409 and 114 of the Indian Penal Code and ordered to undergo
rigorous imprisonment for six months and fine of Rs.05,000/- i/d to
undergo rigorous imprisonment for further period of one month. The
learned Magistrate was pleased to acquit the respondent-accused from
the offences under Sections 420, 467 and 468 of the Indian Penal
Code.
Against
the said judgment and order dated 31st December 2003, the
respondent accused had preferred Criminal Appeal No.02 of 2004
before the Sessions Court. The said Appeal was heard by the learned
Additional Sessions Judge, Fast Track Court NO.3, Patan. After
hearing the parties, the learned Judge by his order dated 06th
November 2004 set aside the judgment and order dated 31st
December 2003 passed by the learned Chief Judicial Magistrate,
Patan, in Criminal Case No.13 of 2002 and acquitted the
respondent-accused from the charges levelled against him.
Being
aggrieved and dissatisfied with the said judgment and order dated
06th November 2004 passed by the learned Additional
Sessions Judge, Fast Track Court No.3, Patan, the appellant State
of Gujarat, has preferred the present Criminal Appeal.
I
have heard Mr.Devang Vyas, learned Additional Public Prosecutor,
appearing on behalf of the appellant State. I have also gone
through the papers and the judgment and order passed by the Courts
below.
Mr.Vyas
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 trial Court has
rightly held the respondent accused guilty of the offences alleged
and, therefore, the Sessions Court, in Appeal, should not have
interfered with the said findings of the trial Court. He has
contended that the accused had given extra judicial confession
wherein he has stated that certificate in respect of receipt of
goods was issued by him without obtaining delivery. Thus, from the
said confessional statement made by the accused, it is very clear
that he is involved in the offence and his intention was malafide.
He has further contended that the learned Sessions Judge has
committed grave error in disbelieving and discarding the evidence of
witnesses. He, therefore, contended that the judgment and order
passed by the learned Additional Sessions Judge, setting aside the
judgment of the trial Court by acquitting the respondent-accused
from the charges levelled against him, is without appreciating the
facts and evidence on record.
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 reasons
assigned by both the Courts.
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 judgment 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.
Further,
in the case of Chandrappa
Vs. State of Karnataka, reported in (2007)4 SCC 415
the Apex Court laid down the following principles:
42. From
the above decisions, in our considered view, the following
general principles regarding powers of the appellate court while
dealing with an appeal against an order of acquittal emerge:
[1] An
appellate court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is founded.
[2] The
Code of Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate court on the
evidence before it may reach its own conclusion, both on questions of
fact and of law.
[3] Various
expressions, such as, substantial and compelling reasons , good
and sufficient grounds , very strong circumstances ,
distorted conclusions , glaring mistakes , etc. are not
intended to curtain extensive powers of an appellate court in an
appeal against acquittal. Such phraseologies are more in the nature
of flourishes of language to emphasis the reluctance of an
appellate court to interfere with acquittal than to curtail the power
of the court to review the evidence and to come to its own
conclusion.
[4] An
appellate court, however, must bear in mind that in case of acquittal
there is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
[5] 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.
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 court below.
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, more particularly, Para – 16 of the said decision.
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 detailed 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 made by learned advocate for the
appellant.
The
Sessions court has, after appreciating the oral as well as
documentary evidence, has found that stock register and consumption
register was not compared and in this circumstance, criminal breach
of trust is not proved against the respondent-accused. The learned
Judge has also found that there was no comparison of stock
register, present stock, and consumed stock. The learned Judge has
observed that there are serious lacuna in the oral as well as
documentary evidence of the prosecution. Nothing is produced on
record of this appeal to rebut the concrete findings of the Sessions
Court.
Thus,
the appellant could not bring home the charge 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.Devang
Vyas, learned learned Additional Public Prosecutor 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 Sessions
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
Sessions Court was completely justified in setting aside the
judgment and order of conviction passed by the trial Court and
acquitting the respondent accused of the charges leveled against
him. I find that the findings recorded by the Sessions 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
Sessions Court 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
06th
November 2004 passed by the learned Additional Sessions Judge, 3rd
Fast Track Court, Patan, in Criminal Appeal No.01 of 2004 acquitting
the respondent-accused of the charges levelled against him, by
setting aside the judgment and order dated 31st
December 2003 passed by the learned Chief Judicial Magistrate,
Patan, in Criminal Case No.13 of 2002 holding the respondent accused
guilty of the charges levelled against him, is hereby confirmed.
Bail bond, if any, shall stands cancelled. Record & Proceedings
to be sent back to the trial Court, forthwith.
(Z.
K. Saiyed, J)
Anup
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