Lalit Modi vs State Of Bihar & Anr on 22 November, 2011

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Patna High Court

Lalit Modi vs State Of Bihar & Anr on 22 November, 2011

Bench: Gopal Prasad

                                Criminal Appeal (U/S) No.13 of 1999
                                               ~~~~~~
          Against the judgment and order of acquittal dated 20.03.1999 passed by Sri
          Rabinder Patwari, learned Judicial Magistrate - Ist Class, Patna in Complaint Case
          No. 868 (C) of 1994.
                                               ~~~~~~
          Lalit Modi, Son of Kishori Lal Modi, resident of Rajender Nagar, Road No. 10, P.
          S. - Kadamkuan in the town and District of Patna.
                                                       .... .... Petitioner .... .... Appellant.
                                                Versus
          1. The State Of Bihar
          2. Satyandra Prasad @ Satyender Kumar Tiwari, Proprietor of Muzaffarpur
              Transport Corporation, Exhibition Road, Patna - 1.
                                                 .... .... Opposite Party .... .... Respondents.
                                               ~~~~~~
          Appearance :
          For the Appellant    :       Mr. Samis Kumar, Advocate.

          For the Respondents :          Mr. Parmeshwar Mehta, A.P.P.
                                                ~~~~~~

                                             PRESENT

                         THE HON'BLE MR. JUSTICE GOPAL PRASAD


GOPAL PRASAD, J.          Heard learned counsel for the appellant and learned counsel for the

          respondents.

          2.     This appeal is directed against the judgment and order of acquittal dated

          20.03.1999

passed by Sri Rabinder Patwari, learned Judicial Magistrate - Ist Class, Patna in Complaint Case No. 868 (C) of 1994 by which the accused person has acquitted for the offence under Section 407 of the Indian Penal Code.

3. The prosecution case as alleged in the complaint is that he booked eleven bundle copies worth Rs.18,036/- to the transporter accused for carrying the same to Gopalganj on a charge of Rs. 218/-. The assignment did not reach to its destination. When it was intimated to the transporter-accused, he assured to comply it immediately but the accused always deferred the matter on one pretext or other and finally refused the liability. Hence, the complaint case was filed.

4. The defence of the accused is complete denial of the allegation and assertion of his false implication. However, after framing of the charge three 2 witnesses were examined on behalf of the prosecution. No witnesses examined on behalf of the defence.

5. The trial court taking into consideration the evidence of the witnesses held that the case in which the accused has been charged under Section 407 of the Indian Penal Code but the prosecution has neither been able to prove the entrustment nor has been proved the misappropriation. The documentary evidence brought in evidence Ext. 1, the receipt alleged to be issued by the transporter does not bear the name of the transporter nor bear the signature of the person who issued it and the witness P. W. 1 though stated that he was present at the time of the booking of the articles is contradicted by the evidence of P. W. 2 the person who loaded the article, who carried the article on truck. P. W. 2 in his evidence has stated that P. W. 1 had given plain paper and he deposited the same in Exhibition Road the paper handed over to him and was handed over to his owner P. W. 1. Hence, the trial court inferred that the evidence of P. W. 1 that he was at the time of booking at transport office is not established and stand contradiction to the evidence of P. W. 2 regarding the booking of the goods. The trial court further took into consideration the oral and documentary evidence held that neither the entrustment nor the misappropriation has been established and hence the offence under Section 407 of the Indian Penal Code has not been established.

6. Learned counsel for the appellant, however, contended that he has proved Ext. 1 which shows that some transaction has done and there is no motive to implicate the accused falsely.

7. I perused the record and the evidence adduced. On perusal of Ext. 1 it is apparent that neither there is any name of the transport company nor there is any signature. There is neither any mention of a name that who received the receipt nor the prosecution has been able to prove that who received amount and issued the receipt. Hence, on the basis of Ext. 1 it cannot infer that who received the amount 3 or who took the articles for delivery to deliver it at the destination. Hence, on the basis of these evidences it cannot be inferred that there was entrustment to the accused persons and hence taking into consideration the entire facts and circumstances and the order impugned, I do not find any merit to interfere with the order of acquittal recorded by the lower court and hence I do not find any merit in this appeal and this appeal is accordingly dismissed.

(Gopal Prasad, J.) Patna High Court, Patna.

Dated, the 22nd November, 2011.

N.A.F.R./Kundan.

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