{"id":9245,"date":"2009-06-22T00:00:00","date_gmt":"2009-06-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gordhanbhai-vs-criminal-on-22-june-2009"},"modified":"2016-08-11T13:25:31","modified_gmt":"2016-08-11T07:55:31","slug":"gordhanbhai-vs-criminal-on-22-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gordhanbhai-vs-criminal-on-22-june-2009","title":{"rendered":"Gordhanbhai vs Criminal on 22 June, 2009"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Gordhanbhai vs Criminal on 22 June, 2009<\/div>\n
Author: Ks Jhaveri,&Nbsp;Honourable 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\n\n \n\n\n\t \n\nCR.A\/2417\/2005\t 18\/ 18\tJUDGMENT \n \n \n\n\t\n\n \n\n\tIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 2417 of 2005\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 2366 of 2005\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 2367 of 2005\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 2368 of 2005\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 64 of 2008\n \n\n \n\n\n \n\nFor Approval\nand Signature:  \n \nHONOURABLE\nMR.JUSTICE KS JHAVERI  \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n=========================================================\n<\/pre>\n
1<\/span><\/p>\n
Whether
\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n<\/p>\n
2<\/span><\/p>\n
To be
\n\t\t\treferred to the Reporter or not ?\n<\/p>\n
3<\/span><\/p>\n
Whether
\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n<\/p>\n
4<\/span><\/p>\n
Whether
\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 ?\n<\/p>\n
5<\/span><\/p>\n
Whether
\n\t\t\tit is to be circulated to the civil judge ?\n<\/p>\n
=========================================================<\/p>\n
GORDHANBHAI
\nPREMJIBHAI BALAR – Appellant(s)<\/p>\n
Versus<\/p>\n
STATE
\nOF GUJARAT – Opponent(s)<\/p>\n
=========================================================<\/p>\n
Appearance
\n:\n<\/p>\n
MR
\nMITESH R AMIN for
\nAppellant(s) : 1,
\nMS MANISHA LAVKUMAR SHAH, APP for Opponent(s) :
\n1, in all
\nAPPEALS
\n=========================================================<\/p>\n
CORAM
\n\t\t\t:\n<\/p>\n
HONOURABLE
\n\t\t\tMR.JUSTICE KS JHAVERI<\/p>\n
and<\/p>\n
HONOURABLE
\n\t\t\tMR.JUSTICE Z.K.SAIYED<\/p>\n
Date
\n: 22\/06\/2009 <\/p>\n
ORAL
\nCOMMON JUDGMENT <\/p>\n
(Per
\n: HONOURABLE MR.JUSTICE KS JHAVERI)<\/p>\n
1.0\tCriminal
\nAppeal No. 2417 of 2005, under section 374 of the Code of Criminal
\nProcedure, 1973, filed by the appellant   original accused No.1, is
\ndirected against the judgment and order of conviction and sentence
\ndated 29.7.2005 passed by the learned Additional Sessions Judge,
\nAmreli, in Sessions Case No. 52 of 2004, whereby the appellant –
\naccused No.1 has been convicted and sentenced to undergo R.I. for 7
\nyears with fine of Rs. 4000\/- i\/d to undergo simple imprisonment for
\neight months.\n<\/p>\n
1.1\tCriminal
\nAppeal No. 2366 of 2005, under section 378(1)(3) of the Code of
\nCriminal Procedure, 1973, filed by the State of Gujarat, is directed
\nagainst the judgment and order of acquittal dated 29.7.2005 passed by
\nthe learned Additional Sessions Judge, Amreli, in Sessions Case No.
\n52 of 2004, whereby the learned Addl. Sessions Judge has acquitted
\nthe respondent   original accused No.4 from the charges levelled
\nagainst him.\n<\/p>\n
1.2\tCriminal
\nAppeal No. 2367 of 2005, under section 377 of the Code of Criminal
\nProcedure, 1973 is filed by the State of Gujarat for enhancement of
\nsentence awarded to the respondents   original accused Nos.1, 2 &
\n3, by the learned Additional Sessions Judge, Amreli, vide judgment
\nand order dated 29.7.2005 passed by the learned Additional Sessions
\nJudge, Amreli, in Sessions Case No. 52 of 2004, whereby the accused
\nwere convicted and sentenced to undergo RI for seven years with fine
\nof Rs.4000\/- i\/d to undergo simple imprisonment for eight months.\n<\/p>\n
1.3\tCriminal
\nAppeal No. 2368 of 2005, under section 378(1)(3) of the Code of
\nCriminal Procedure, 1973, filed by the State of Gujarat, is directed
\nagainst the judgment and order of acquittal dated 29.7.2005 passed by
\nthe learned Additional Sessions Judge, Amreli, in Sessions Case No.
\n65 of 2004, whereby the learned Addl. Sessions Judge has acquitted
\nthe respondent   original accused No.5 from the charges levelled
\nagainst him.\n<\/p>\n
1.4\tCriminal
\nAppeal No. 64 of 2008, under section 374 of the Code of Criminal
\nProcedure, 1973, is filed by the appellants   original accused
\nNos.2 & 3 against the judgment and order of conviction and
\nsentence dated 29.7.2005 passed by the learned Additional Sessions
\nJudge, Amreli, in Sessions Case No. 52 of 2004.\n<\/p>\n
2.0\tThe
\nbrief facts of the prosecution case are as under:\n<\/p>\n
2.1\tIt
\nis the case of the prosecution that on 10.2.2004 one Mr. V.C.
\nManjariya, complainant was discharging his duty as Police Sub
\nInspector at Rajula Police Station. On information being received by
\nBhabhlubhai Hakabhai, Head Constable that three persons were coming
\nfrom Surat and would be staying at the place of Chhaganbhai Lavjibhai
\nPatel, and all were in activities of counterfeiting currency notes,
\nthe complainant Shri Manjariya went to the place of offence along
\nwith police staff and panchas. On reaching the place of incident they
\nfound three persons, namely, the present appellants   original
\naccused Nos.1, 2 & 3, who were actively found in the activity of
\nmaking fake currency notes of Rs.100 and Rs.500 etc. The complainant
\nafter making close scrutiny at the place of incident at every nook
\nand corner and after performing due process of law collected all
\nmaterials lying at the place. It is also alleged in the complaint
\nthat mean time, during interrogation, name of one other accused
\nperson is also disclosed. The said person was also arrested  and
\ninterrogated by the police and was taken into the custody. All the
\npersons were charged with the offences with regard to counterfeiting
\ncurrency notes.\n<\/p>\n
2.2\tOn
\nthe basis of complaint the police recorded the statement of
\nwitnesses, collected the documentary evidence,  drew necessary
\npanchnama and after thorough investigation, as there was sufficient
\nevidence connecting the respondents with the alleged offence,
\ncharge-sheet was filed against the accused before the Court of
\nlearned Judicial Magistrate, First Class. As the offence alleged
\nagainst the respondents was exclusively triable by a Court of
\nSessions, the learned JMFC, committed the case to the Court of
\nSessions, Amreli, which was numbered as Sessions Case No. 52 of 2004.\n<\/p>\n
2.3\tIt
\nis to be noted that in the original charge-sheet in column No.2 one
\nPravinbhai Jayrambhai Chopda, original accused No.5 was shown as
\nabsconding. Originally, the Sessions Case No.52 of 2004 was
\nregistered against the original accused Nos.1 to 4 and the case was
\ncommitted to the Sessions Court. Thereafter accused No.5 was arrested
\nand charge sheet was filed against him on 23.6.2004 and the case was
\ncommitted to the Court of Sessions u\/s.209 Cr.P.C., which was
\nnumbered as Sessions Case No.65 of 2004. Since all the accused were
\ninvolved in the same transaction, both the Sessions Cases were
\nconsolidated.\n<\/p>\n
2.4\tThereafter
\nthe charge was framed against all the accused by the learned
\nAdditional Sessions Judge, Amreli. The accused pleaded not guilty to
\nthe charge and claimed to be tried. Thereafter, the trial was
\nconducted against the accused.\n<\/p>\n
2.5\tTo
\nprove the case against the respondents – accused, the prosecution has
\nexamined following witnesses :\n<\/p>\n
Pareshbhai
\n\tKamleshbhai, Ex.14;\n<\/p>\n
Vinubhai
\n\tParshottambhai, Ex.16;\n<\/p>\n
Chhaganbhai
\n\tLavjibhai, Ex.18;\n<\/p>\n
Bhabhlubhai
\n\tHakabhai , Ex.19;\n<\/p>\n
Bachubhai
\n\tUmedsinh Gohil, Exh.27;\n<\/p>\n
Babubhai
\n\tJeshankerbhai Joshi, Ex.34;\n<\/p>\n
Vajirbhai
\n\tChandbhai Gori, Ex.36;\n<\/p>\n
Shantilal
\n\tMavjibhai Vegda, Ex.37;\n<\/p>\n
Pankajbhai
\n\tPremjibhai Patel, Ex.38;\n<\/p>\n
Ghanshyamsinh
\n\tRanjitsinh Chudasma, Ex.39;\n<\/p>\n
Shailesh
\n\tHarikrushna Shah, Ex.43;\n<\/p>\n
Investigating
\n\tOfficer & PSI Vanrajsinh Suragbhai Manjaria, complainant,
\n\tEx.45;\n<\/p>\n
Investigating
\n\tOfficer & PSI Gambhirsinh Tapubha Jadeja, Exh. 60;\n<\/p>\n
Aniruddhsinh
\n\tRanjitsinh Chudasma, Ex. 71;\n<\/p>\n
Gumansinh
\n\tNatubha Chudasma, Exh. 73;\n<\/p>\n
Gautam
\n\tKantilal Raval, Exh. 74;\n<\/p>\n
Bhimjibhai
\n\tGopalbhai Patel, Exh. 77<\/p>\n
2.6\tThe
\nprosecution has produced the following documents:\n<\/p>\n
1.\tPanchnama
\n\t\tof arrest of accused and the recovery of Muddamal articles, Exh.
\n\t\t28;\n<\/p>\n
Rehearsal
\n\tpanchnama, Exh. 35;\n<\/p>\n
Complaint
\n\tExh. 46;\n<\/p>\n
Panchnama
\n\tof recovery of muddamal colour xerox machine from the house of
\n\tfather of accused No.4;\n<\/p>\n
Search
\n\torder made by PSI Manjaria under the provision of Section 166
\n\tCr.P.C. of the house of father of accused No.4, Exh. 48;\n<\/p>\n
Panchnama
\n\tof arrest and physical condition of accused No.4   Exh.49;\n<\/p>\n
Recovery
\n\tpanchnama of four cartridges of HP Inject Printers from the house of
\n\tVaghjibhai Dharamshibhai  at Polarpur, Exh. 61;\n<\/p>\n
Rehearsal
\n\tpanchnama in presence of Videographer showing as to how the bogus
\n\tcurrency notes worth Rs.100 and Rs.500 on one side are prepared in
\n\tcolour xerox, Exh. 62;\n<\/p>\n
Report
\n\tsubmitted by PSI Gambhirsinh Tapubha Jadeja regarding transfer of
\n\tpapers to PSI, Rajula, on his transfer, Exh. 63;\n<\/p>\n
Report
\n\tmade by PSO Shri Rathod, about handing over investigation to PSI
\n\tShri Gambhirsinh Tapubha Jadeja (PW 13) of Jafrabad Police Station,
\n\tafter registration of offence, Exh. 64;\n<\/p>\n
Copy
\n\tof Janva Jog Entry no.1\/04 of Barvala Police Station, Exh. 65;\n<\/p>\n
Muddamal
\n\tReceipt of Entry No.1\/04 of Barvala Police Station, Exh. 66;\n<\/p>\n
2.7\tThereafter,
\nthe statements of the accused under Section 313 Cr. P. C. were
\nrecorded in which also the accused denied the charges leveled against
\nthem and stated that they have been falsely involved in the
\ncommission of offence. After considering the oral as well as
\ndocumentary evidence and after hearing arguments on behalf of
\nprosecution and the defence, the  learned Additional Sessions Judge,
\nAmreli, by Judgment and order dated 29.7.2005 convicted the accused
\nNos.1, 2 & 3 for the offences punishable under Sections 489-A,
\n489-C and 489-D read with Section 34 I.P. Code and awarded sentence
\nof 7 years’ Rigorous imprisonment with fine of Rs.4000\/- for each
\noffence and in default to under-go simple imprisonment for 8 months.
\nThe learned Sessions Judge also ordered that sentence shall run
\nconcurrently. By the said Judgment and order the learned Additional
\nSessions Judge was pleased to acquit the accused Nos.4 & 5 from
\nthe offences charged against them.\n<\/p>\n
2.7\tBeing
\naggrieved by and dissatisfied with the Judgment and Order dated
\n29.7.2005 passed by the learned Additional Sessions Judge, Amreli,
\nin Sessions Case No. 52 of 2004 and 65 of 2004 respectively, the
\nappellant   original accused No.1 filed Criminal Appeal No.2417 of
\n2005 challenging the Judgment and order of conviction passed by the
\nlearned Additional Sessions Judge, the appellant   State of Gujarat
\nhas filed Criminal Appeal No.2366 of 2005 against the Judgment and
\norder acquittal of original accused No.4, Criminal Appeal No. 2367 of
\n2005 for enhancement of sentence to the original accused Nos.1, 2 &
\n3, Criminal Appeal No.2368 of 2005 against the Judgment and order of
\nacquittal of original accused No.5, Criminal Appeal No.64 of 2008 by
\noriginal accused Nos.2 & 3 against the Judgment and order of
\nconviction, passed by the learned Addl. Sessions Judge.\n<\/p>\n
3.0\tFirst
\nwe will deal with Criminal Appeal No.2366 of 2005 and Criminal Appeal
\nNo.2368 of 2005, filed by the State of Gujarat, challenging the
\nJudgment and Order of acquittal of original accused Nos.4 & 5
\npassed by the learned Addl. Sessions Judge, Amreli, in above Sessions
\nCase.\n<\/p>\n
4.0\tWe
\nhave heard learned APP Ms. Manisha Shah on behalf of appellants
\nState and learned Advocate, appearing on behalf of the respondent –
\noriginal accused No.4 in Criminal Appeal No.2366 of 2005.  We have
\nalso gone through the papers produced before us. It was contended by
\nlearned APP that the judgment and order of the learned trial Judge is
\nagainst the provisions of law; the learned Judge has not properly
\nappreciated oral as well as documentary evidence available on the
\nrecord of the case in its true and proper perspective. She has
\ncontended that the witnesses have fully supported the case of the
\nprosecution. She has also contended that the learned Judge ought to
\nhave appreciated that there was common intention of the original
\naccused Nos.1 to 5 to make fake currency notes and, therefore, they
\nare equally responsible and that they were having possession of fake
\ncurrency notes to which they could not give proper explanation. She,
\ntherefore, contended that the Judgment of learned Judge is erroneous
\nand bad in eye of law.\n<\/p>\n
5.0\tWe
\nhave gone through the Judgment of the trial Court. We have also gone
\nthrough the record & proceedings. We have also perused the
\nreasons assigned by the learned Additional Sessions Judge. We have
\nalso gone through the papers produced before us. Learned APP has
\ntaken us through the evidence of the prosecution witnesses.\n<\/p>\n
6.0\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 M.S. Narayana Menon @ Mani Vs. State of Kerala &
\nAnr, reported in (2006)6 SCC, 39, the Apex Court has narrated
\nabout the powers of the High Court in appeal against the order of
\nacquittal. In para 54 of the decision, the Apex Court has observed as
\nunder:\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
\njudgment 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
6.1\tFurther,
\nin the case of Chandrappa Vs. State of Karnataka, reported in
\n(2007)4 SCC 415 the Apex Court laid down the following
\nprinciples:\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
6.2\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
6.3\tEven
\nin a recent decision of the Apex Court in the case of State of Goa
\nV. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the
\nCourt has reiterated the powers of the High Court in such cases. In
\npara 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
6.4\tSimilar
\nprinciple has been laid down by the Apex  Court in the cases of State
\nof Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR
\nSCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP,
\nreported in 2007 AIR SCW 5589. Thus, the powers which this Court
\nmay exercise against an order of acquittal are well settled.\n<\/p>\n
6.5\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 reasoning, 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 of Karnataka Vs. Hemareddy, reported
\nin AIR 1981 SC 1417 wherein it is held as under:\n<\/p>\n
 &
\nThis
\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
6.6\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
7.0\tApart
\nfrom that the prosecution has not proved its case beyond reasonable
\ndoubt against the original accused Nos.4 and 5.\n<\/p>\n
7.1\tWhile
\nappreciating the evidence on record the learned Counsel for the State
\nis not in a position to show any evidence against the original
\naccused Nos.4 & 5. While appreciating the evidence the trial
\nCourt has found that there is no case against accused Nos. 4 & 5
\nand, therefore, benefit is required to be given to the accused Nos. 4
\n& 5.\n<\/p>\n
7.2\tThe
\ntrial Court has also found that as per the case of the prosecution
\nthe colour xerox machine was seized from the house of father of
\naccused No.4, but the prosecution could not prove the ownership of
\nsaid xerox machine. It is also not brought on record that accused
\nNo.4 is staying with his father. The investigation office has
\ninspected the house of accused  No.4, but in incriminating articles
\nwere recovered from his house. It is also required to be noted that
\nwhen the xerox machine was seized and when the raid was carried out
\nat Kandatiya village, accused No.4 was not present. There is not a
\nsingle evidence to connect the accused No.4 in the commission of
\noffence. The trial Court has also found that the prosecution has also
\nfailed to prove the charges levelled against against accused No.5.
\nLearned APP is not in a position to show any evidence to take a
\ncontrary view of the matter or that the approach of the trial Court
\nis vitiated by some manifest illegality or that the decision is
\nperverse or that the trial Court has ignored the material evidence on
\nrecord.\n<\/p>\n
7.3\tLooking
\nto the above evidence, the trial Court has rightly not believed the
\ncase of prosecution and acquitted the original accused Nos.4 & 5
\nfrom the charges levelled against them.\n<\/p>\n
7.4\tThus,
\nfrom the evidence itself it is established that the prosecution has
\nnot proved its case against the accused Nos.4 & 5 beyond
\nreasonable doubt. Ms. Manisha Shah, learned APP is not in a position
\nto show any evidence to take a contrary view of the matter or that
\nthe findings of the trial Court suffers from any manifest illegality
\nor that the decision is perverse or that the trial Court has ignored
\nthe material evidence on record. In that view of the matter the view
\ntaken by the trial Court is just and proper.\n<\/p>\n
8.0\tIn
\nabove view of the matter, we are of the considered opinion that the
\ntrial court was completely justified in acquitting the original
\naccused Nos.4 & 5 of the charges leveled against them. We find
\nthat the 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. Hence Criminal Appeals No. 2366\/05 and
\n2368\/05, filed by the State of Gujarat, are hereby dismissed. The
\nJudgment and order dated 29.7.2005 passed by the learned Additional
\nSessions Judge, Amreli, acquitting the accused Nos.4 & 5
\nrespondents in Criminal Appeals No.2366\/05 and 2368\/05 are hereby
\ndismissed.\n<\/p>\n
9.0\tNow
\nwe will deal with the Criminal Appeal No.2367 of 2005, filed by the
\nState for enhancement of sentence awarded by the learned Additional
\nSessions Judge, Amreli.\n<\/p>\n
10.0\tIt
\nis contended by the learned APP that the judgment and order of the
\nlearned trial Judge is against the provisions of law; the learned
\nJudge has not properly appreciated oral as well as documentary
\nevidence available on the record of the case in its true and proper
\nperspective. She has contended that the witnesses have fully
\nsupported the case of the prosecution. She has also contended that
\nsince the accused have committed the crime against the national
\neconomy and, therefore, in such type of cases the Court should not
\nhave taken a lenient view and the accused should have been awarded
\npunishment of minimum 10 years sentence.\n<\/p>\n
10.1\tWe
\nhave gone through the Judgment of the trial Court. We have also gone
\nthrough the papers produced before us. Section 489A, B, C & D of
\nIndian Penal Code read as under :\n<\/p>\n
A.\tCounterfeiting
\ncurrency notes or bank notes   Whoever counterfeits, or knowingly
\nperforms any part of the process of counterfeiting, any currency note
\nor bank note, shall be punished with (imprisonment for life), or with
\nimprisonment of either description for a term which may extend to ten
\nyears, and shall also be liable to fine.\n<\/p>\n
Explanation
\n  For the purpose of this section and of section 489B, (489C, 489D
\nand 489E), the expression  bank-note  means a promissory note or
\nengagement for the payment of money to bearer on demand issued by any
\nperson carrying on the business of banking in any part of the world,
\nor issued by or under the authority of any State or Sovereign Power,
\nand intended to be used as equivalent to, or as a substitute for
\nmoney).\n<\/p>\n
489B.\tUsing
\nas genuine, forged or counterfeit currency-notes or bank-notes
\nWhoever sells to, or buys or receives from, any other person, or
\notherwise traffics in or uses as genuine, any forged or counterfeit
\ncurrency-note or bank-note, knowing or having reason to believe the
\nsame to be forged or counterfeit, shall be punished with
\n(imprisonment for life), or with imprisonment of either description
\nfor a term which may extend to ten years, and shall also be liable to
\nfine).\n<\/p>\n
489C.\tPossession
\nof forged or counterfeit currency-notes or bank-notes   Whoever has
\nin his possession any forged or counterfeit currency-note or
\nbank-note, knowing or having reason to believe the same to be forged
\nor counterfeit and intending to use the same as genuine or that it
\nmay be used as genuine, shall be punished with imprisonment of either
\ndescription for a term which may extend to seven years, or with fine,
\nor with both).\n<\/p>\n
489D.\tMaking
\nor possession instruments or materials for forging or counterfeiting
\ncurrency-notes or bank-notes   Whoever makes, or performs, any part
\nof the process of making, or buys or sells or disposes of, or has in
\nhis possession, any machinery, instrument or material for the purpose
\nof being used, or knowing or having reason to believe that it is
\nintended to be used, for forging or counterfeiting any currency-note
\nor bank-note, shall be punished with (imprisonment for life), or with
\nimprisonment of either description for a term which may extend to ten
\nyears, and shall also be liable to fine.) <\/p>\n
10.2\tIn
\nview of above provisions, we are of the opinion that, keeping in mind
\nthe documents on record, keeping in mind the total quantity of
\ncurrency notes found at the time of raid, the sentence awarded by the
\ntrial Court  is the discretion exercised in judicial manner which is
\ndifficult to interfere by this Court. In that view of the matter even
\nif the second view is possible, in our view, the view taken by the
\nSessions on appreciation of oral as well as documentary evidence, is
\njust and proper and, therefore, we are of the view that the sentence
\nawarded to the original accused Nos.1,2 & 3 by the Sessions Court
\nis proper and we are not interfering with the same.\n<\/p>\n
11.0\tAccordingly,
\nCriminal Appeal No.2367 of 2005, filed by the State, for enhancement
\nof sentence awarded by the learned Additional Sessions Judge, Amreli
\nin Section Case No.52 of 2004, is hereby dismissed.\n<\/p>\n
12.0\tNow
\nwe will deal with the Criminal Appeal Nos.2417 of 2005 and Criminal
\nAppeal No.64 of 2008.\n<\/p>\n
13.0\tCriminal
\nAppeal No.2417 of 2005 is filed by the appellant   original accused
\nNo.1 challenging the Judgment and order of conviction and sentence
\ndated 29.7.2005 passed by the learned Additional Sessions Judge,
\nAmreli in Sessions Case No.52 of 2004.\n<\/p>\n
13.1\tCriminal
\nAppeal No. 64 of 2008 is filed by the appellants   original accused
\nNo.2 & 3 challenging the Judgment and order of conviction and
\nsentence dated 29.7.2005 passed by the learned Additional Sessions
\nJudge, Amreli in Sessions Case No.52 of 2004.\n<\/p>\n
14.0\tLearned
\nCounsel Mr. Popat on behalf of the original accused No.1 has
\ncontended that the trial Court has not considered the fact that
\ncurrency notes seized by the police were not the complete currency
\nnotes and it was only a preparation and, therefore, the trial Court
\ncommitted an error in holding the accused guilty for the offence
\nunder Sections 489A of I.P. Code. He has further contended that the
\ntime of raid and the panchnama are differing. In that view of the
\nmatter, there are serious lapses in the Judgment and, therefore, the
\nbenefit of doubt is required to be given in favour of the accused
\nappellants.\n<\/p>\n
14.1\tLearned
\nCounsel has further contended that the prosecution has not proved the
\nownership and possession of scene of place and, therefore, also they
\nare required to be acquitted from the charges levelled against them.\n<\/p>\n
14.2\tLearned
\nAPP Ms. Manisha Lavkumar Shah has supported the Judgment and order of
\nthe Sessions Court. However, she has contended that in such a serious
\ncrime no leniency should be shown and the sentence which has been
\nimposed is too lenient and the minimum sentence of 10 years to each
\nof the accused is required to be awarded.\n<\/p>\n
15.0\tWe
\nhave gone through the Judgment and order of the trial Court. We have
\nalso considered the submissions advanced by both the parties. The
\nlearned Judge has rightly observed it has been proved beyond doubt
\nthat the muddamal articles were found from the room situated in the
\nvadi of Chhaganbhai Lavjibhai which were in exclusively in the
\npossession and occupation of accused Nos.1, 2 & 3 and it has also
\nbeen rightly observed that from the articles recovered which are
\nmeant for preparing fake currency notes the mansria to prepare fake
\ncurrency notes and to circulate the same in the market is proved
\nbeyond doubt. Further, no explanation worth the name has been given
\nby the accused persons as to how and why the aforesaid muddamal
\narticles were found in their custody and possession and, therefore,
\nthe learned Judge has rightly held the accused Nos.1 to 3 guilty for
\nthe offences charged against them. In our view the learned Judge has
\nrightly held the accused for the charges levelled against them and we
\nsee no reason to interfere with the same. Accordingly, both Criminal
\nAppeals No.2417 of 2005 and Criminal Appeal No.64 of 2008 are
\nrequired to be dismissed.\n<\/p>\n
16.0\tIn
\nview of above, all the Appeals i.e. Criminal Appeal No. 2417\/05,
\nfiled by the original accused No.1, Criminal Appeal No.64 of 2008,
\nfiled by the original accused Nos.2 & 3, Criminal Appeal Nos.
\n2366 of 2005 & 2367 of 2005 against the order of acquittal of
\noriginal accused Nos.4 & 5 respectively, and Criminal Appeal No.
\n2367 of 2005 for enhancement of sentence awarded to the original
\naccused, are hereby dismissed. Bail Bonds shall stand cancelled.
\nRecords & Proceedings be sent to the trial Court.\n<\/p>\n
(K.S.JHAVERI,J.)<\/p>\n
(Z.K.SAIYED,
\nJ.)<\/p>\n
sas<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Gordhanbhai vs Criminal on 22 June, 2009 Author: Ks Jhaveri,&Nbsp;Honourable Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print CR.A\/2417\/2005 18\/ 18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2417 of 2005 With CRIMINAL APPEAL No. 2366 of 2005 With CRIMINAL APPEAL No. 2367 of 2005 With CRIMINAL […]<\/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-9245","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGordhanbhai vs Criminal on 22 June, 2009 - 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\/gordhanbhai-vs-criminal-on-22-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gordhanbhai vs Criminal on 22 June, 2009 - 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