Bombay High Court
The State Of ... vs Anna S/O Yadaoraoji Bagde on 24 August, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.53 OF 2002
The State of Maharashtra,
through Police Station Officer,
Police Station Yavatmal,
Tq. Dist. Yavatmal. ....... APPELLANT
...V E R S U S...
Anna s/o. Yadaoraoji Bagde,
aged about 43 years,
r/o.Patipura, Yavatmal,
Tq. Dist. Yavatmal. ......RESPONDENT
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Mr. N.B. Jawade, counsel for appellant.
None for respondent accused.
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CORAM: ROHIT B. DEO, J.
DATE: th
24 AUGUST, 2017.
ORAL JUDGMENT
1 The State appeal is challenging the judgment and order of acquittal dated 15.10.2001 delivered by the Chief Judicial Magistrate, Yavatmal in Regular Criminal Case 105 of 1996 by and under which the respondent / accused is acquitted for offence punishable under Sections 409, 407, 420 of the Indian Penal Code. ::: Uploaded on - 24/08/2017 ::: Downloaded on - 28/08/2017 15:39:37 ::: 2 2 Heard Shri. N.B. Jawade, learned Addl. Public Prosecutor for the appellant /State. None appears for the respondent / accused.
3 The gist of the prosecution case before the learned Magistrate is thus:-
The accused Anna Bagde was a Village Development Officer at the relevant time. In 1994, Umarsara Gram Panchayat was dissolved and Shri. Ghanshyam Chirde, who is the complainant was appointed as the Administrator and one Shri. B.C. Korde assumed the charge of secretary. Shri. B.C. Korde proceeded on medical leave w.e.f. 9.11.1999 and in his absence, the charge was given to accused. When the charge was handed over to the accused, there was balance of Rs. 1,33,000/- in Gram Panchayat account.
The complainant alleges that he had approved withdrawal of Rs. 76,000/- for the purpose of construction of drainage channels. The accused sought his permission to withdraw the amount on 30.11.1994. However, the complainant requested the accused to account for the previous withdrawals. The complainant further alleges that in the monthly meeting held on 2.12.1994, the Block Development Officer orally instructed the accused not to ::: Uploaded on - 24/08/2017 ::: Downloaded on - 28/08/2017 15:39:37 ::: 3 engage in any monetary transaction. Despite the said oral direction, the accused allegedly withdrew Rs. 50,120/- from the bank on 3.12.1994 by forging the signature of the complainant on the cheque and misappropriated this amount.
It is further alleged that accused spent Rs. 60,000/-, which was the tax collection, without depositing the same in bank and submitted fraudulent bills. It is further alleged that the amount of RS. 40,000/- which was sanctioned for construction of latrines was withdrawn and spent by the accused without approval of the complainant. The accounts were maintained by the accused and the signatures of the complainant on the relevant pages of the registers were forged. The effort, according to the prosecution, was to show that the accounts were verified by the complainant. The allegation is that the accused cheated the Government by forging signatures and indulging in misappropriation. Pursuant to a report lodged by the complainant, offence punishable under Sections 409, 420, 467 of the Indian Penal Code were registered. Pursuant to the investigation, charge-sheet came to be filed and the learned Chief Judicial Magistrate framed charge at exh. 10. The defence of the accused is of total denial and false implication. The accused contended that he did not fulfill the illegal demand of Rs.10,000/- made by the complainant and hence, the false ::: Uploaded on - 24/08/2017 ::: Downloaded on - 28/08/2017 15:39:37 ::: 4 implication.
4 The judgment of acquittal is well reasoned and minutely and painstakingly analyzes and appreciates the evidence on record. The learned Magistrate has rejected the evidence of the handwriting expert Shri. Ulhas Athale (PW3) and in my opinion rightly so. Firstly, the specimen signatures and the cheque were forwarded to Shri. Athale not by the Investigation Officer but by the complainant in private capacity. Secondly, it is an admitted position on record, that the original cheque was not forwarded to Shri. Athale and that the opinion is based on examination of photocopy, which the complainant allegedly procured from the record of the Court. Thirdly, handwriting expert's opinion (Exh.
89) obtained on 27.7.1995, was kept under the wraps and was only produced before the Court during the trial on 15.7.1999. It is a settled position of law that the opinion of handwriting expert is inherently a weak piece of evidence. In the factual matrix, the handwriting expert's opinion is absolutely unworthy of credit. The learned Magistrate was more than justified in discarding the expert opinion of PW3. The learned Addl. Public Prosecutor, Shri. N.B. Jawade with his usual fairness, does not dispute that if the report of the handwriting expert is discarded, there does not ::: Uploaded on - 24/08/2017 ::: Downloaded on - 28/08/2017 15:39:37 ::: 5 appear to be any evidence much less cogent evidence to bring home the charge under section 467 of the Indian Penal Code. The finding of the learned Magistrate that the prosecution has further failed to prove the charge under section 409 and 420 of the Indian Penal Code is equally unexceptionable. The learned Magistrate is right in holding that the persons / shopkeepers/ businessmen who have issued bills and who do not deny the receipt of the amount, ought to have been examined by the prosecution to prove that the bills are fraudulent. This, not having been done, there is absolutely no evidence on record to suggest that the bills are fraudulent. The learned Magistrate is further justified in recording a finding that there is no evidence on record to suggest that the amount of Rs. 40,000/- was to be spent only for construction of public latrines. On the contrary, there is no single entry of the receipt of Rs. 40,000/- in the record of the Gram Panchayat much less an entry which would suggest that this amount of Rs. 40,000/- was to be spent only for construction of public latrines. In any event, it is not the case of the prosecution that this amount of Rs. 40,000/- was misappropriated for personal use. The case of the prosecution is that this amount of Rs. 40,000/- was not spent for construction of latrines and was spent for other works. Viewed from any perspective, there is absolutely nothing on record to even ::: Uploaded on - 24/08/2017 ::: Downloaded on - 28/08/2017 15:39:38 ::: 6 suggest much prove that the accused misappropriated or converted the said amount of Rs. 40,000/-. I have given my anxious consideration to the material on record and the reasons recorded by the learned Magistrate. I am not persuaded to hold that the judgment of acquittal is perverse. The view taken is plausible or possible view and this Court would not be justified in interfering with such view.
The appeal is without substance and is rejected.
JUDGE Belkhede, PA ::: Uploaded on - 24/08/2017 ::: Downloaded on - 28/08/2017 15:39:38 :::