{"id":96160,"date":"2010-01-27T00:00:00","date_gmt":"2010-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-appearance-on-27-january-2010"},"modified":"2016-05-22T09:38:37","modified_gmt":"2016-05-22T04:08:37","slug":"state-vs-appearance-on-27-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-appearance-on-27-january-2010","title":{"rendered":"State vs Appearance : on 27 January, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs Appearance : on 27 January, 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\n\n \n\n\n\t \n\nCR.A\/1182\/2009\t 5\/ 8\tJUDGMENT \n \n \n\n\t\n\n \n\n \n\n\n \n\n \n\n\n \n\n \n\n\n \n\n \n\n\n \n\n \n\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 1182 of 2009\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n \n=========================================\n\n\n \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\n\t\n\n \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \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\n\t\n\n \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 ?\n\t\t\n\t\n\n \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 ?\n\t\t\n\t\n\n \n\n \n=========================================\n\n\n \n\nSTATE\nOF GUJARAT - Appellant(s)\n \n\nVersus\n \n\nDINDAYAL\nCO.,CREDIT SOCIETY, GOVIND KRUPA,PANJRAPOLE, & 2 - Opponent(s)\n \n\n=========================================\n \nAppearance : \nMs. Mini\nNair, Additional PUBLIC PROSECUTOR for the\nAppellant. \nHL PATEL ADVOCATES for the respondents.\n \n========================================= \n\n \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: 27\/01\/2010 \n\n \n\n \n \n\t\t\t\tORAL\nJUDGMENT<\/pre>\n
1.\t\tThe present
\nappeal under section 378 of the Code of Criminal Procedure, 1973 is
\ndirected against the  order dated 1.12.2007 passed by the learned
\nChief Judicial Magistrate, Godhara in Criminal Case no.1804 of 2000
\nwhereby the complaint filed by th complainant has been dismissed
\nunder section 256(1) of Criminal Procedure Code for want of
\nprosecution  and the accused have been acquitted of the charges under
\nsection 28 of the Payment of Bonus Act, 1965. The said order of
\nlearned Chief Judicial Magistrate has been confirmed by the learned
\nSessions Judge, Godhara vide judgment and order dated 31st March,
\n2009.\n<\/p>\n
2.\t\tBrief
\nfacts of the prosecution case are that the complainant filed Criminal
\ncase no.1804 of 2000 in the Court of the learned Judicial Magistrate,
\nFirst Class, Godhra for the breach of sections 27(4) and 19(b) of the
\nPayment of Bonus Act, 1965 on 29.3.2000.\n<\/p>\n
3.\t\tThough
\nthe complaint was filed in the year 2000, the prosecution had failed
\nto produce any evidence and the complainant had also not remained
\npresent before the Court. Therefore, the learned Chief Judicial
\nMagistrate, Godhra dismissed the said complaint under section 256(12)
\nof the Criminal Procedure Code and acquitted the accused-respondents
\nof all the charges levelled against them by the  order dated
\n1.12.2007.\n<\/p>\n
4.\t\tBeing
\naggrieved and dissatisfied with the aforesaid judgment and order
\npassed by the learned Chief Judicial Magistrate,  Godhra and
\nconfirmed by the learned Sessions Judge, Godhra vide judgment and
\norder dated 31.3.2009, the appellant has preferred the present
\nappeal.\n<\/p>\n
5.\t\tHeard
\nlearned Additional Public Prosecutor Ms. Mini Nair.  She has
\ncontended that the prosecution has proved the case against the
\nrespondent-accused beyond all reasonable doubt. It is also contended
\nthat the prosecution has also proved documentary evidence to prove
\nthe prosecution case. She has also vehemently argued that the learned
\ntrial Judge has not considered the oral as well as documentary
\nevidence produced by the prosecution. She has also contended that the
\nlearned trial Judge has not considered the actual case of the
\nprosecution which is serious in nature. It is covered within the
\nprovisions of Factories Act. Inspite of this, the trial court has
\ndismissed the complaint for want of prosecution.\n<\/p>\n
6.\t\tAt
\nthe outset, it is required to be noted that the principles which
\nwould govern and regular the hearing of appeal by this  Court against
\nan order 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 and Anr.
\nreported in (2006) SCC 39, the Apex Court has narrated about the
\npowers of the High Court in appeal against the order of acquittal. In
\npara 54 of the decision, the Apex Court has observed as under:\n<\/p>\n
“54: In
\nany 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 views are possible, the
\nappellate court should not interfere with the finding of acquittal
\nrecorded by the court below.”\n<\/p>\n
7.\t\tFurther,
\nin the case of Chandrappa vs. State of Karnataka,<\/a> reported in
\n(2007) 4 SCC 415 the Apex Court laid down the following
\nprinciples:\n<\/p>\n
 “42: From
\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) An
\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) The Code of
\nCriminal Procedure, 1973 puts no limitation, restriction or condition
\non exercise of such power and an appellate court on the evidence
\nbefore it may reach its own conclusion, both on questions of act and
\nof law.\n<\/p>\n
(3) Various
\nexpressions, such as “substantial and compelling reasons”,
\n“good and sufficient grounds”, “very strong
\ncircumstances”, “distorted conclusions”, “glaring
\nmistakes”, etc. are not intended to curtain extensive powers of
\nan appellate court in an appeal against acquittal. Sych phraseologies
\nare more in the nature of “flourishes of language” to
\nemphasis the reluctance of an appellate court to interfere with
\nacquittal than to curtain he power of the court to review the
\nevidence and to come to its own conclusion.\n<\/p>\n
(4) An
\nappellate court, however, must bear in mind that in case of
\nacquittal, there is double presumption in favour of the accused.
\nFirstly,the presumption of innocence is available to him under the
\nfundamental principles of criminal jurisprudence that every person
\nshall be presumed to be innocent unless he is proved guilty by a
\ncompetent court of law. Secondly, the accused having secured his
\nacquittal, the presumption of his innocence is further reinforced,
\nreaffirmed and strengthened by the trial court.\n<\/p>\n
(5) If two
\nreasonable conclusions are possible on the basis of the evidence on
\nrecord, the appellate court should not disturb the finding of
\nacquittal recorded by the trial court.”\n<\/p>\n
8.\t\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
9.\t\tEven
\nin a recent decision of the Apex Court in the case of State of
\nGoa, vs. Sanjay Thakran and Anr.<\/a> 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.\n<\/p>\n
From the aforesaid decisions, it is apparent that while exercising
\nthe powers in appeal against the order of acquittal the Court of
\nappeal would not ordinarily interfere with the order of acquittal
\nunless the approach of the lower Court is vitiated by some manifest
\nillegality and the conclusion arrived at would not be arrived at by
\nany reasonable person and, therefore, the decision is to be
\ncharacterised as perverse. Merely because two views are possible, the
\nCourt of appeal would not take the view which would upset the
\njudgment delivered by the Court below. However, the appellate court
\nhas a power to review the evidence if it is of the view that the
\nconclusion arrived at by the Court below is perverse and the Court
\nhas committed a manifest error of law and ignored the material
\nevidence on record. A duty is cast upon the appellate court, in such
\ncircumstances, to re-appreciate the evidence to arrive to a just
\ndecision on the basis of material placed on record to find out
\nwhether any of the accused is connected with the commission of the
\ncrime he is charged with.”\n<\/p>\n
10.\t\tSimilar
\nprinciple has been laid down by the Apex Court in the cases of
\nState of Uttar Pradesh vs. Ram Veer Singh and Ors.,<\/a> reported in 2007
\nAIR SCW 5553 and in Girja Prasad (Dead) by LRS vs. State of MP,
\nreported in 2007 AIR SC 5589. Thus, the powers which this Court
\nmay exercise against an order of acquittal are well settled.\n<\/p>\n
11.\t\tIt
\nis also a settled legal position that in acquittal appeal, the
\nappellate court is not required to re-write the judgment 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 of Karnataka vs. Hemareddy,<\/a> reported in
\nAIR 1981 SC 1417, wherein, it is held as under:\n<\/p>\n
    “…This
\nCourt has observed in Girija Nandini Devi vs. Bigendra Nandini
\nChaudhary (1967) SCR 93; (AIR 1967 SC 1124) that it is not the duty
\nof the appellate court when it agrees with a view of the trial court
\non 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
12.\t\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
13.\t\tI
\nhave gone through the judgment and order passed by the trial court. I
\nhave also perused the oral as well as documentary evidence led before
\nthe trial court and also considered the submissions made by the
\nlearned Additional Public Prosecutor for the appellant State. The
\ntrial court while considering the oral as well as documentary
\nevidence has clearly observed that the prosecution has  miserably
\nfailed to prove its case beyond reasonable doubt against the
\nrespondent.  I have also perused the complaint as well as the order
\nof the learned trial Court. From the perusal of the complaint exh. 1,
\nit appears that it was filed on 29.3.2000 and then process was
\nissued. Even after seven years on 1.12.2007, the  complaint was not
\nproceeded with by the complainant. The accused always remained
\npresent before the trial court. Today, the learned Additional Public
\nProsecutor has tried to convince this Court that in such type of
\nserious matters, it is required to be tackled with heavy hands. But
\nit is an admitted fact that the complaint was filed in the year 2000,
\nbut in the year 2007, the prosecution has never bothered to lead oral
\nas well as documentary evidence in support of its case. It was the
\nbounden duty of the prosecution to lead oral as well as documentary
\nevidence and the complainant has never bothered to remain present
\nbefore the Court below. Now, the prosecution cannot contend that the
\nlearned trial Judge has committed an illegality in dismissing the
\ncomplaint. During the period of seven years, the prosecution has not
\ncared to proceed with the complaint which shows that the prosecution
\nhas no interest in the result of the criminal case. When the
\ncomplaint was dismissed for want of prosecution, then now the
\nquestion of entertaining this appeal does not arise at all.  Even in
\nthe present appeal, nothing is produced or pointed out to rebut the
\nconclusion of the trial court. Thus, from the evidence itself, it is
\nestablished that the prosecution has not proved its case beyond
\nreasonable doubt.\n<\/p>\n
14.\t\tLearned
\nAdditional Public Prosecutor 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
15.\t\tIn
\nthe above view of the matter, I am of the considered view that the
\ntrial court was completely justified in acquitting the respondents of
\nthe charges levelled against him.\n<\/p>\n
16.\t\tI
\nfind that the findings recorded by the trial court are absolutely
\njust and proper and in recording the said findings, no illegality or
\ninfirmity has been committed by it.\n<\/p>\n
17.\t\tI
\nam, therefore, in complete agreement with the findings, ultimate
\nconclusion and the resultant order of acquittal recorded by the
\ncourts below and hence find no reason to interfere with the same.
\nHence, the appeal preferred by the State is  hereby dismissed. Record
\nand Proceedings be sent back to the trial court forthwith. Bail
\nbonds, if any, stand cancelled.\n<\/p>\n
\t\t\t\t\t\t\t(Z.K.Saiyed,J)<\/p>\n
***darji<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs Appearance : on 27 January, 2010 Author: Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print CR.A\/1182\/2009 5\/ 8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1182 of 2009 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-96160","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs Appearance : on 27 January, 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\/state-vs-appearance-on-27-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Appearance : on 27 January, 2010 - 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