{"id":164033,"date":"2010-07-16T00:00:00","date_gmt":"2010-07-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-vs-judge-has-quashed-and-set-aside-the-on-16-july-2010"},"modified":"2018-08-29T19:57:46","modified_gmt":"2018-08-29T14:27:46","slug":"the-vs-judge-has-quashed-and-set-aside-the-on-16-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-vs-judge-has-quashed-and-set-aside-the-on-16-july-2010","title":{"rendered":"The vs Judge Has Quashed And Set Aside The … on 16 July, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
The vs Judge Has Quashed And Set Aside The … on 16 July, 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\/2283\/2004\t 10\/ 10\tORDER \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. 2283 of 2004\n \n\n=========================================================\n\n \n\nTHE\nSTATE OF GUJARAT - Appellant(s)\n \n\nVersus\n \n\nNAYAK\nJAGDISHKUMAR BABALDAS - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nDEVANG VYAS, LD. ADDL. PUBLIC PROSECUTOR\nfor\nAppellant(s) : 1, \nNOTICE SERVED for Opponent(s) :\n1, \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\nDate\n: 16\/07\/2010\n \n\nORAL\nORDER<\/pre>\n
The
\n\tappellant-State of Gujarat, has preferred this Appeal under Section
\n\t378(1)(3) of the Code of Criminal Procedure, 1973 against the
\n\tjudgment and order of acquittal dated 06th November 2004
\n\tpassed by the learned Additional Sessions Judge, Fast Track Court
\n\tNo.3, Patan, in Criminal Appeal No.02 of 2004, whereby the learned
\n\tJudge has quashed and set aside the judgment and order of conviction
\n\tdated 31st December 2003 passed by the learned Chief
\n\tJudicial Magistrate, Patan, in Criminal Case No.13 of 2002, and
\n\tacquitted the respondent original accused from the charges
\n\tlevelled against him.\n<\/p>\n
The
\n\tshort facts of the prosecution case is that the respondent-accused
\n\tin connivance with other accused person committed fraud by
\n\tpurchasing medicines as well as equipment between the period 15th
\n\tOctober 1988 and 25th August 1991. It is further the case
\n\tof the prosecution that the respondent-accused had made payment of
\n\tmedicines though the said medicines were not received in the
\n\thospital. It is also the case of the prosecution that the accused
\n\tperson also sold the medicine and equipment in the open market and
\n\tthereby shown less stock in the hospital and thus, they have
\n\tcommitted misappropriation of government money to the tune of
\n\tRs.02,52,763.90 paisa. Therefore, complaint was filed against the
\n\taccused person in the Chanasma Police Station for the offences under
\n\tSections 420, 467, 468, 409 and 114 of the Indian Penal Code. After
\n\tinvestigation, charge-sheet came to be filed against the
\n\trespondent-accused in the Court of learned Chief Judicial
\n\tMagistrate, Patan.\n<\/p>\n
Thereafter
\n\tthe trial was conducted before the learned Magistrate. After
\n\tconsidering the oral as well as documentary evidence the learned
\n\tMagistrate by his judgment and order dated 31st December
\n\t2003 held the respondent accused guilty of the offence under
\n\tSections 409 and 114 of the Indian Penal Code and ordered to undergo
\n\trigorous imprisonment for six months and fine of Rs.05,000\/- i\/d to
\n\tundergo rigorous imprisonment for further period of one month. The
\n\tlearned Magistrate was pleased to acquit the respondent-accused from
\n\tthe offences under Sections 420, 467 and 468 of the Indian Penal
\n\tCode.\n<\/p>\n
Against
\n\tthe said judgment and order dated 31st December 2003, the
\n\trespondent accused had preferred Criminal Appeal No.02 of 2004
\n\tbefore the Sessions Court. The said Appeal was heard by the learned
\n\tAdditional Sessions Judge, Fast Track Court NO.3, Patan. After
\n\thearing the parties, the learned Judge by his order dated 06th
\n\tNovember 2004 set aside the judgment and order dated 31st
\n\tDecember 2003 passed by the learned Chief Judicial Magistrate,
\n\tPatan, in Criminal Case No.13 of 2002 and acquitted the
\n\trespondent-accused from the charges levelled against him.\n<\/p>\n
Being
\n\taggrieved and dissatisfied with the said judgment and order dated
\n\t06th November 2004 passed by the learned Additional
\n\tSessions Judge, Fast Track Court No.3, Patan, the appellant State
\n\tof Gujarat, has preferred the present Criminal Appeal.\n<\/p>\n
I
\n\thave heard Mr.Devang Vyas, learned Additional Public Prosecutor,
\n\tappearing on behalf of the appellant State. I  have also gone
\n\tthrough the papers and the judgment and order passed by the Courts
\n\tbelow.\n<\/p>\n
Mr.Vyas
\n\thas taken me through the evidence of prosecution witnesses and the
\n\tdocumentary evidence and submitted that from the above evidence it
\n\tis established that the prosecution has successfully proved its case
\n\tbeyond reasonable doubt. He has contended that the trial Court has
\n\trightly held the respondent accused guilty of the offences alleged
\n\tand, therefore, the Sessions Court, in Appeal, should not have
\n\tinterfered with the said findings of the trial Court. He has
\n\tcontended that the accused had given extra judicial confession
\n\twherein he has stated that certificate in respect of receipt of
\n\tgoods was issued by him without obtaining delivery. Thus, from the
\n\tsaid confessional statement made by the accused, it is very clear
\n\tthat he is involved in the offence and his intention was malafide.
\n\tHe has further contended that the learned Sessions Judge has
\n\tcommitted grave error in disbelieving and discarding the evidence of
\n\twitnesses. He, therefore, contended that the judgment and order
\n\tpassed by the learned Additional Sessions Judge, setting aside the
\n\tjudgment of the trial Court by acquitting the respondent-accused
\n\tfrom the charges levelled against him, is without appreciating the
\n\tfacts and evidence on record.\n<\/p>\n
I
\n\thave gone through the judgment and order passed by the trial Court
\n\tas well as of the Sessions Court. I have also perused the reasons
\n\tassigned by both the Courts.\n<\/p>\n
At
\n\tthe outset it is required to be noted that the principles which
\n\twould govern and regulate the hearing of appeal by this Court
\n\tagainst an order of acquittal passed by the trial Court have been
\n\tvery succinctly explained by the Apex Court in a catena of
\n\tdecisions. In the case of
\n\tM.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported
\n\tin (2006)6 SCC, 39,
\n\tthe Apex Court has narrated about the powers of the High Court in
\n\tappeal against the order of acquittal. In para 54 of the decision,
\n\tthe Apex Court has observed as under:\n<\/p>\n
\t 54.
\n\tIn any event the High Court entertained an appeal treating to be
\n\tan appeal against acquittal, it was in fact exercising the
\n\trevisional jurisdiction. Even while exercising an appellate power
\n\tagainst a judgment of acquittal, the High Court should have borne in
\n\tmind the well-settled principles of law that where two view are
\n\tpossible, the appellate court should not interfere with the finding
\n\tof acquittal recorded by the court below.\n<\/p>\n
Further,
\n\tin the case of Chandrappa
\n\tVs. State of Karnataka, reported in (2007)4 SCC 415
\n\tthe Apex Court laid down the following principles:\n<\/p>\n
 42.\tFrom
\nthe above decisions, in our\tconsidered view, the following
\ngeneral\tprinciples regarding powers of the\tappellate court while
\ndealing with an\tappeal against an order of acquittal\temerge:\n<\/p>\n
[1]\tAn
\nappellate court has full power to review, re-appreciate and
\nreconsider the 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
Thus,
\n\tit is a settled principle that while exercising appellate power,
\n\teven if two reasonable conclusions are possible on the basis of the
\n\tevidence on record, the appellate court should not disturb the
\n\tfinding of acquittal recorded by the court below.\n<\/p>\n
Even
\n\tin a recent decision of the Apex Court in the case of State
\n\tof Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75,
\n\tthe  Court has reiterated the powers of the High Court in such
\n\tcases, more particularly, Para – 16 of the said decision.\n<\/p>\n
Similar
\n\tprinciple has been laid down by the Apex  Court in the cases of
\n\tState
\n\tof Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR
\n\tSCW 5553
\n\tand in Girja
\n\tPrasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589.
\n\tThus, the powers which this Court may exercise against an order of
\n\tacquittal are well settled.\n<\/p>\n
It
\n\tis also a settled legal position that in acquittal appeal, the
\n\tappellate court is not required to re-write the judgment or to give
\n\tfresh reasoning, when the reasons assigned by the Court below are
\n\tfound to be just and proper. Such principle is laid down by the Apex
\n\tCourt in the  case of State
\n\tof Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417.\n<\/p>\n
Thus,
\n\tin case the appellate court agrees with the reasons and the opinion
\n\tgiven by the lower court, then the detailed discussion of evidence
\n\tis not necessary.\n<\/p>\n
I
\n\thave gone through the judgment and order passed by the trial court
\n\tas well as of the Sessions Court. I have also perused the oral as
\n\twell as documentary evidence led before the courts below and also
\n\tconsidered the submissions made by learned advocate for the
\n\tappellant.\n<\/p>\n
The
\n\tSessions court has, after appreciating the oral as well as
\n\tdocumentary evidence, has found that stock register and consumption
\n\tregister was not compared and in this circumstance, criminal breach
\n\tof trust is not proved against the respondent-accused. The learned
\n\tJudge has also found that there was  no comparison of stock
\n\tregister, present stock, and consumed stock. The learned Judge has
\n\tobserved that there are serious lacuna in the oral as well as
\n\tdocumentary evidence of the prosecution. Nothing is produced on
\n\trecord of this appeal to rebut the concrete findings of the Sessions
\n\tCourt.\n<\/p>\n
Thus,
\n\tthe appellant could not bring home the charge against the
\n\trespondent accused in the present Appeal. The prosecution has
\n\tmiserably failed to prove the case against the respondent accused.
\n\t Thus, from the evidence itself it is established that the
\n\tprosecution has not proved its case beyond reasonable doubt.\n<\/p>\n
Mr.Devang
\n\tVyas, learned learned Additional Public Prosecutor for the
\n\tappellant, is not in a position to show any evidence to take a
\n\tcontrary view in the matter or that the approach of the Sessions
\n\tCourt is vitiated by some manifest illegality or that the decision
\n\tis perverse or that the trial court has ignored the material
\n\tevidence on record.\n<\/p>\n
In
\n\tabove view of the matter, I am of the considered opinion that the
\n\tSessions Court was completely justified in setting aside the
\n\tjudgment and order of conviction passed by the trial Court and
\n\tacquitting the respondent  accused of the charges leveled against
\n\thim. I find that the findings recorded by the Sessions Court are
\n\tabsolutely just and proper and in recording the said findings, no
\n\tillegality or infirmity has been committed by it.\n<\/p>\n
I
\n\tam, therefore, in complete agreement with the findings, ultimate
\n\tconclusion and the resultant order of acquittal recorded by the
\n\tSessions Court and hence find no reasons to interfere with the same.
\n\tHence the appeal is hereby dismissed.\n<\/p>\n
In
\n\tview of above, the Appeal is dismissed. The judgment and order dated
\n\t06th
\n\tNovember 2004 passed by the learned Additional Sessions Judge, 3rd
\n\tFast Track Court, Patan, in Criminal Appeal No.01 of 2004 acquitting
\n\tthe respondent-accused of the charges levelled against him, by
\n\tsetting aside the judgment and order dated 31st
\n\tDecember 2003 passed by the learned Chief Judicial Magistrate,
\n\tPatan, in Criminal Case No.13 of 2002 holding the respondent accused
\n\tguilty of the charges levelled against him, is hereby confirmed.
\n\tBail bond, if any, shall stands cancelled. Record & Proceedings
\n\tto be sent back to the trial Court, forthwith.\n<\/p>\n
(Z.\n<\/p>\n
K. Saiyed, J)<\/p>\n
Anup<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court The vs Judge Has Quashed And Set Aside The … on 16 July, 2010 Author: Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/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-164033","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nThe vs Judge Has Quashed And Set Aside The ... on 16 July, 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\/the-vs-judge-has-quashed-and-set-aside-the-on-16-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The vs Judge Has Quashed And Set Aside The ... on 16 July, 2010 - 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