{"id":144827,"date":"2010-02-17T00:00:00","date_gmt":"2010-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/peoples-vs-the-on-17-february-2010"},"modified":"2018-05-02T11:57:23","modified_gmt":"2018-05-02T06:27:23","slug":"peoples-vs-the-on-17-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/peoples-vs-the-on-17-february-2010","title":{"rendered":"Peoples vs ) The on 17 February, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Peoples vs ) The on 17 February, 2010<\/div>\n
Author: Z.K.Saiyed,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/552\/2002\t 11\/ 11\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 552 of 2002\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\t-Yes.\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ? -No.\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\t-No.\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ? -No.\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ? -No.\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nPEOPLES\nCO OP CREDIT SOC LTD THRO ITS MANAGER OR HIS - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nDILIP B RANA for\nAppellant(s) : 1, \nMS MINI NAIR, APP for Opponent(s) : 1, \nNOTICE\nSERVED for Opponent(s) :\n2, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 17\/02\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
1)\tThe
\nappellant-original complainant has filed the present appeal under
\nSection-378 of the Code of Criminal Procedure, 1973 against the
\njudgement and order of acquittal dated 3\/1\/2002 passed by the learned
\nJudicial Magistrate, Khambhat in Criminal Case No.735 of 1997 whereby
\nthe accused was acquitted of the charges leveled against him.\n<\/p>\n
2)\tThe
\nbrief facts of the prosecution case are as under:\n<\/p>\n
2.1)\tThe
\nappellant society is a registered society under the Act and is
\nengaged in doing co-operative activities including grant of loans to
\nits members and the complainant is working as Manager of the society.
\n The accused is a member of the appellant society, and by virtue of
\nhis being a member, he had applied for a short term loan of
\nRs.5,000\/- on 28\/11\/1996 and he was granted a short term loan of
\nRs.4,000\/- by the appellant society, and accordingly, a cheque
\nNo.4224 dated 8\/3\/1997, drawn on the Cambay Hindu Merchant
\nC-operative Bank Ltd., Khambhat Branch was given to the appellant
\nsociety as a repayment of the loan amount.  Said cheque was deposited
\nin the Khambhat District Central Co-op. Bank Ltd., Khambhat by the
\nappellant society on the same day i.e. on 8\/3\/1997.  On depositing
\nthe said cheque in the account of the appellant society, the bank
\ninformed about the dishonor of the cheque with the reason:  FUNDS
\nINSUFFICIENT .  On receipt of the letter from the bank, the
\nappellant society gave notice on 19\/3\/1997 by Registered A.D. to the
\nrespondent no.2 under the Negotiable Instruments Act, which was
\nreturned back undelivered with the endorsement refused.  Thereafter
\nthe notice was given by U.P.C. on 15\/4\/1997 to the accused, but he
\ndid not reply to the said notice and also he did not pay the amount
\nof the dishonoured cheque.  Hence, the appellant society filed
\ncomplaint under Section-138 of the Negotiable Instruments Act being
\nCriminal Case No.735 of 1997 before the Judicial Magistrate First
\nClass, Khambhat.  Accordingly the trial was initiated against the
\naccused.\n<\/p>\n
2.2)\tTo
\nprove the guilt against the accused the prosecution has examined
\nthree witnesses and in order to support the case, the prosecution has
\nproduced several documentary evidences.\n<\/p>\n
2.3)\tAt
\nthe end of trial,  after recording the statement of the accused
\nperson under Section-313 of the Criminal Procedure Code and after
\nhearing arguments on behalf of prosecution and the defence, learned
\nJudicial Magistrate First Class, Khambhat by his judgement and order
\ndated  3\/1\/2002 has dismissed the complaint filed by the present
\nappellant-original complainant and passed the order of acquittal in
\nfavour of the respondent-accused and thereby acquitted the
\nrespondent-accused of all the charges leveled against him.\n<\/p>\n
2.4)\tBeing
\naggrieved by and dissatisfied with the aforesaid judgement and order
\npassed by the learned Judicial Magistrate First Class, Khambhat, the
\nappellant-original complainant has preferred the present appeal.\n<\/p>\n
3)\tLearned
\nadvocate Mr. Dilip Rana for the appellant-original complainant
\ncontended that the judgment and order of the learned Judicial
\nMagistrate is not proper, legal and it is erroneous.  He has also
\ncontended that the judgment impugned is against the provisions of
\nlaw, the trial Court has not properly considered the evidence led by
\nthe prosecution and looking to the provisions of law, it is
\nestablished that the prosecution has proved all the ingredients of
\nthe evidence against the present respondent-accused.  He has also
\ntaken this Court through the oral as well as the entire documentary
\nevidence.  He submitted that from the complaint and judgment of the
\nCourt below, it is clearly established that the accused person was
\nfound committing offence punishable under Section-138 of the
\nNegotiable Instruments Act.  He further submitted that there was no
\nreason for the learned Judicial Magistrate to disbelieve the
\nprosecution case and to acquit the accused person.\n<\/p>\n
4)\tAt
\nthe outset it is required to be noted that the principles which would
\ngovern and regulate the hearing of appeal by this Court against an
\norder of acquittal passed by the trial Court have been very
\nsuccinctly explained by the Apex Court in a catena of decisions. In
\nthe case of
\nM.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in
\n(2006)6 SCC, 39,
\nthe Apex Court has narrated about the powers of the High Court in
\nappeal against the order of acquittal. In para 54 of the decision,
\nthe Apex Court has observed as under:\n<\/p>\n
 54.
\n In any event the High Court entertained an appeal treating to be an
\nappeal against acquittal, it was in fact exercising the revisional
\njurisdiction. Even while exercising an appellate power against a
\njudgement of acquittal, the High Court should have borne in mind the
\nwell-settled principles of law that where two view are possible, the
\nappellate court should not interfere with the finding of acquittal
\nrecorded by the court below.\n<\/p>\n
4.1)\tFurther,
\nin the case of Chandrappa
\nVs. State of Karnataka, reported in (2007)4 SCC 415
\nthe Apex Court laid down the following principles:\n<\/p>\n
 42.\tFrom
\nthe above decisions, in our considered view, the following general
\nprinciples regarding powers of the appellate court while dealing with
\nan appeal against an order of acquittal emerge:\n<\/p>\n
[1]\tAn
\nappellate court has full power to review, reappreciate and reconsider
\nthe evidence upon which the order of acquittal is founded.\n<\/p>\n
[2]\tThe
\nCode of Criminal Procedure, 1973 puts no limitation, restriction or
\ncondition on exercise of such power and an appellate court on the
\nevidence before it may reach its own conclusion, both on questions of
\nfact and of law.\n<\/p>\n
[3]\tVarious
\nexpressions, such as,  substantial and compelling reasons ,  good
\nand sufficient grounds ,  very strong circumstances ,
\n distorted conclusions ,  glaring mistakes , etc. are not
\nintended to curtain extensive powers of an appellate court in an
\nappeal against acquittal. Such phraseologies are more in the nature
\nof  flourishes of language  to emphasis the reluctance of an
\nappellate court to interfere with acquittal than to curtail the power
\nof the court to review the evidence and to come to its own
\nconclusion.\n<\/p>\n
[4]\tAn
\nappellate court, however, must bear in mind that in case of acquittal
\nthere is double presumption in favour of the accused. Firstly, the
\npresumption of innocence is available to him under the fundamental
\nprinciple of criminal jurisprudence that every person shall be
\npresumed to be innocent unless he is proved guilty by a competent
\ncourt of law. Secondly, the accused having secured his acquittal, the
\npresumption of his innocence is further reinforced, reaffirmed and
\nstrengthened by the trial court.\n<\/p>\n
[5]\tIf
\ntwo reasonable conclusions are possible on the basis of the evidence
\non record, the appellate court should not disturb the finding of
\nacquittal recorded by the trial court.\n<\/p>\n
4.2)\tThus,
\nit is a settled principle that while exercising appellate power, even
\nif two reasonable conclusions are possible on the basis of the
\nevidence on record, the appellate court should not disturb the
\nfinding  of acquittal recorded by the trial court.\n<\/p>\n
4.3)\tEven
\nin a recent decision of the Apex Court in the case of State
\nof Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75,
\nthe  Court has reiterated the powers of the High Court in such cases.
\nIn para 16 of the said decision the Court has observed as under:\n<\/p>\n
 16.\tFrom
\nthe aforesaid decisions, it is apparent that while exercising the
\npowers in appeal against the order of acquittal the Court of appeal
\nwould not ordinarily interfere with the order of acquittal unless the
\napproach of the lower Court is vitiated by some manifest illegality
\nand the conclusion arrived at would not be arrived at by any
\nreasonable person and, therefore, the decision is to be characterized
\nas perverse. Merely because two views are possible, the Court of
\nappeal would not take the view which would upset the judgement
\ndelivered by the  Court below. However, the appellate court has a
\npower to review the evidence if it is of the view that the conclusion
\narrived at by the Court below is perverse and the Court has committed
\na manifest error of law and ignored the material evidence on record.
\nA duty is cast upon the appellate court, in such circumstances, to
\nre-appreciate the evidence to arrive to a just decision on the basis
\nof material placed on record to find out whether any of the accused
\nis connected with the commission of the crime he is charged with.\n<\/p>\n
4.4)\tSimilar
\nprinciple has been laid down by the Apex  Court  in the cases of
\nState of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in
\n2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state
\nof MP, reported in 2007 AIR SCW 5589. Thus, the powers which this
\nCourt may exercise against an order of acquittal are well settled.\n<\/p>\n
4.5)\tIt
\nis also a settled legal position that in acquittal appeal, the
\nappellate court is not required to re-write the judgement or to give
\nfresh reasonings, when the reasons assigned by the Court below are
\nfound to be just and proper. Such principle is laid down by the Apex
\nCourt in the  case of State
\nof Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417
\nwherein it is held as under:\n<\/p>\n
 & This
\ncourt has observed in Girija Nandini Devi V. Bigendra Nandini
\nChaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty
\nof the appellate court when it agrees with the view of the trial
\ncourt on the evidence to repeat the narration of the evidence or to
\nreiterate the reasons given by the trial court expression of general
\nagreement with the reasons given by the Court the decision of which
\nis under appeal, will ordinarily suffice.\n<\/p>\n
4.6)\tThus,
\nin case the  appellate court agrees with the reasons and the opinion
\ngiven by the lower court, then the discussion of evidence is not
\nnecessary.\n<\/p>\n
5)\tI
\nhave gone through the judgement and order passed by the Trial Court.
\nI have also perused the oral as well as documentary evidence led by
\nthe Trial Court and also considered the submissions made by learned
\nAdvocate for the appellant-original complainant Mr. Dilip Rana.  I
\nhave perused the reasonings given by the Court below.\n<\/p>\n
5.1)\tThe
\nentire prosecution case rests on the statements of witnesses and
\ndocumentary evidences produced before the Court below.  No doubt the
\nprosecution has produced sufficient evidences before the learned
\nJudicial Magistrate First Class to prove the case but the prosecution
\nwas not able to convince the Trial Court.  It appears from the
\ndocumentary evidence produced before the Trial Court that the
\nprosecution has failed to prove the case beyond reasonable doubt.
\nToday, before this Court also, learned
\nadvocate Mr. Dilip Rana is not in a position to convince this Court
\nthat the original complainant has followed the mandatory provisions
\nof the Negotiable Instruments Act.  It appears from the oral as well
\nas documentary evidences produced before the Court below that the
\nprovisions of the Negotiable Instruments Act are not followed
\nby the complainant which is fatal to the prosecution case.  Hence it
\nappears that there is  serious lacuna in the prosecution case and the
\nprosecution has failed to establish the case against the
\nrespondent-accused.  Therefore the Trial Court has rightly passed the
\norder of acquittal in favour of the accused and I do not find any
\nreason to interfere with the said finding of the Trial Court.\n<\/p>\n
5.2)\tThus,
\nfrom the evidence itself it is established that the prosecution has
\nnot proved its case beyond reasonable doubt. Learned advocate for the
\nappellant-original complainant is not in a position to show any
\nevidence to take a contrary view of the matter or that the approach
\nof the Trial Court is vitiated by some manifest illegality or that
\nthe decision is perverse or that the Trial Court has ignored the
\nmaterial evidence on record.\n<\/p>\n
6)\tIn
\nthe above view of the matter, I am of the considered opinion that the
\nTrial Court was completely justified in acquitting the
\nrespondent-accused of the charges leveled against him. I find that
\nthe findings recorded by the Trial Court are absolutely just and
\nproper and in recording the said findings, no illegality or infirmity
\nhas been committed by it. I am, therefore, in complete agreement with
\nthe findings, ultimate conclusion and the resultant order of
\nacquittal recorded by the court below and hence find no reasons to
\ninterfere with the same.  Hence the appeal is hereby dismissed.\n<\/p>\n
(Z.K.\n<\/p>\n
SAIYED, J.)<\/p>\n
(ila)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Peoples vs ) The on 17 February, 2010 Author: Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print CR.A\/552\/2002 11\/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 552 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 1 Whether Reporters of Local Papers may be allowed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-144827","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPeoples vs ) The on 17 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/peoples-vs-the-on-17-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Peoples vs ) The on 17 February, 2010 - 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