Bombay High Court
State Of Mah.Thr.P.S.O.City ... vs Sau.Indutai Jagdish Deshmukh & 4 Ors on 2 February, 2018
Author: M.G.Giratkar
Bench: M.G.Giratkar
1 apeal197.01
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.197 OF 2001
with
CRIMINAL APPEAL NO.198 OF 2001
with
CRIMINAL APPEAL NO.199 OF 2001
with
CRIMINAL APPEAL NO.200 OF 2001
1. CRIMINAL APPEAL NO.197 OF 2001 :
State of Maharashtra,
Through Police Station Officer,
City Kotwali, Amravati .......... APPELLANT
// VERSUS //
1. Sau.Indutai Jagdish Deshmukh,
Aged 62 years, r/o. Devvankar
Nagar, Amravati.
2. Badalsingh Daryavsingh Raghuwanshi,
Aged about 40 years, r/o.Ravinagar,
Amravati.
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3. Ashok Mahadeo Shirbhate,
Aged about 48 years, r/o.Mudliyar
Nagar, Amravati.
4. Deepak Ganpatrao Bijwar,
Aged about 42 years, r/o.
Ravinagar, Amravati.
5. Dattatraya Narayanrao Bharat
(Abated) .......... RESPONDENTS
____________________________________________________________
Mr.Rishab S. Khemuka, Advocate h/f. Mr.Anil Mardikar, Senior
Advocate for the Appellant.
Mr.P.R.Agrawal, Advocate for Respondent Nos.1, 3 and 4.
Mr.Parvez W, Mirza, Advocate for Respondent No.2.
Mr.N.R.Patil, A.P.P. for State.
____________________________________________________________
2. CRIMINAL APPEAL NO.198 OF 2001 :
State of Maharashtra,
Through Police Station Officer,
City Kotwali, Amravati .......... APPELLANT
// VERSUS //
1. Sau.Indutai Jagdish Deshmukh,
Aged 62 years, r/o. Devvankar
Nagar, Amravati.
2. Badalsingh Daryavsingh Raghuwanshi,
Aged about 40 years, r/o.Ravinagar,
Amravati.
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3. Ashok Mahadeo Shirbhate,
Aged about 48 years, r/o.Mudliyar
Nagar, Amravati.
4. Deepak Ganpatrao Bijwar,
Aged about 42 years, r/o.
Ravinagar, Amravati.
5. Dattatraya Narayanrao Bharat
(Abated) .......... RESPONDENTS
____________________________________________________________
Mr.Rishab S. Khemuka, Advocate h/f. Mr.Anil Mardikar, Senior
Advocate for the Appellant.
Mr.P.R.Agrawal, Advocate for Respondent Nos.1, 3 and 4.
Mr.Parvez W, Mirza, Advocate for Respondent No.2.
Mr.N.R.Patil, A.P.P. for State.
____________________________________________________________
3. CRIMINAL APPEAL NO.199 OF 2001 :
State of Maharashtra,
Through Police Station Officer,
City Kotwali, Amravati .......... APPELLANT
// VERSUS //
1. Sau.Indutai Jagdish Deshmukh,
Aged 62 years, r/o. Devvankar
Nagar, Amravati.
2. Badalsingh Daryavsingh Raghuwanshi,
Aged about 40 years, r/o.Ravinagar,
Amravati.
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3. Ashok Mahadeo Shirbhate,
Aged about 48 years, r/o.Mudliyar
Nagar, Amravati.
4. Deepak Ganpatrao Bijwar,
Aged about 42 years, r/o.
Ravinagar, Amravati.
5. Dattatraya Narayanrao Bharat
(Abated) .......... RESPONDENTS
____________________________________________________________
Mr.Rishab S. Khemuka, Advocate h/f. Mr.Anil Mardikar, Senior
Advocate for the Appellant.
Mr.P.R.Agrawal, Advocate for Respondent Nos.1, 3 and 4.
Mr.Parvez W, Mirza, Advocate for Respondent No.2.
Mr.N.R.Patil, A.P.P. for State.
____________________________________________________________
4. CRIMINAL APPEAL NO.200 OF 2001 :
State of Maharashtra,
Through Police Station Officer,
City Kotwali, Amravati .......... APPELLANT
// VERSUS //
1. Sau.Indutai Jagdish Deshmukh,
Aged 62 years, r/o. Devvankar
Nagar, Amravati.
2. Badalsingh Daryavsingh Raghuwanshi,
Aged about 40 years, r/o.Ravinagar,
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Amravati.
3. Ashok Mahadeo Shirbhate,
Aged about 48 years, r/o.Mudliyar
Nagar, Amravati.
4. Deepak Ganpatrao Bijwar,
Aged about 42 years, r/o.
Ravinagar, Amravati.
5. Dattatraya Narayanrao Bharat
(Abated) .......... RESPONDENTS
____________________________________________________________
Mr.Rishab S. Khemuka, Advocate h/f. Mr.Anil Mardikar, Senior
Advocate for the Appellant.
Mr.P.R.Agrawal, Advocate for Respondent Nos.1, 3 and 4.
Mr.Parvez W, Mirza, Advocate for Respondent No.2.
Mr.N.R.Patil, A.P.P. for State.
____________________________________________________________
*******
Date of reserving the Judgment : 20.1.2018.
Date of pronouncement of the Judgment : 2.2.2018.
******
CORAM : M.G.GIRATKAR, J.
JUDGMENT :
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1. The State has preferred all these appeals against the Judgment, dt.17.4.2001 of acquittal passed by the Chief Judicial Magistrate, Amravati in Criminal Case Nos.60 of 1992, 144 of 1996, 143 of 1996 and 145 of 1996.
2. The case of prosecution/State against all the respondents, in short, is as under :
Khadi and Village Industries Commission runs Mahila Griha Udyog Lijjat Papad having its Head Office at 33/16, "Rajlaxmi' Prabhat Road, Lane No.4, Pune-411004. The said Institution has its extensive units all over the State of Maharashtra and outside also. It's one unit is in Ambapeth, Amravati wherein manufacture of Lijjat Papad is done by woman workers and are paid accordingly.
3. On 21.8.1990, one Smt. Vimlabai Gulwade lodged report to Police Station, City Kotwali, Amravati alleging that accused no.1 was Director of the Institution. Accused no.1 worked for about 15 years and accused nos. 2 to 5 were the persons working in Cash department and other units of said Institution. During the audit for the period 1987 to 1990, the Auditor had detected that all accused in ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:56 ::: 7 apeal197.01 furtherance of their common intention misappropriated funds to the tune of Rs.11,00,000/- and accordingly, the Auditor, who conducted audit, held accused nos. 1 to 5 responsible for the loss caused by way of misappropriation of funds of institution.
4. On the report of Vimalabai, investigation was proceeded. After complete investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Amravati. Charges were framed in respect of Criminal cases. Learned trial Court recorded common evidence and decided all the Criminal cases by Common Judgment dt.17.4.2001.
5. Prosecution failed to examine complainant Vimlabai. Prosecution has also not examined the Investigating Officer and other material witnesses. Prosecution has examined the following witnesses :
1. Gaurishankar Gangabhisan Mantri (PW-1) (Exh.32).
2. Madhusudan Chandulal Chandak (PW-2) (Exh.37).
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3. Kantilal Doshi (PW-3) (Exh.40).
4. Sau. Nanda Wathodkar (PW-4) (Exh.73).
5. Sau. Archana w/o. Arvind Deshmukh (PW-5) (Exh.74).
6. Utpal (PW-6) (Exh.79) (Auditor).
Heard Counsels for the respective parties.
6. Gaurishankar Mantri (PW-1) has stated in his evidence that, in the year 1987-88, he sold Udad dal to Mahila Udyog Lijjat Papad Centre, Amravati. He maintained Books of Accounts. He has stated that he had to recover Rs.50,120/- from Mahila Udyog Lijjat Papad Centre, Amravati. During the investigation, some documents in relation to accounts were seized from him. In the cross- examination, he has admitted that his son Shivprakash Mantri used to collect money from Mahila Udyog Lijjat Papad Centre, Amravati. It was suggested that one of his agent namely Nandubhayya, friend of his son, had recovered some amount from Lijjat Papad Centre, Amravati. But, he denied the said suggestion. He has admitted in his cross-examination that he did not file any Civil Suit against Lijjat Papad Centre, Amravati for recovery of balance amount. He has ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:56 ::: 9 apeal197.01 further admitted that it is not written in his Account Book Exh. Nos 34 and 36 that the amount of Udad dal was in balance. Therefore, his evidence is not helpful to prosecution.
7. Madhusudan Chandak (PW-2) has stated in his evidence that he was running a Dal Mill in M.I.D.C. Area, Akola. He supplied Mung dal to Mahila Gruha Udhog Lijjat Papad Centre, Amravati worth Rs.33,562.50 ps., out of which he received amount of Rs.15,000/-. He had to recover amount of Rs.18,562.50 from Mahila Gruha Udyog Lijjat Papad Centre, Amravati. He has stated that he had taken entry about transaction in his Account Book. In the Cross- examination, he has admitted that he received some amount by draft and some amount by cash. Entries of amounts which he received in cash are made in Original Ledger on different pages. Original Ledger Book contains 125 pages. On the basis of Ledger Book, he prepared extract of Account (Exh.38). He did not bring relevant Original Ledger Book with him in the Court. In Exh.38, page numbers of Ledgers are not mentioned.
8. From the cross-examination of Gaurishankar (PW-1) and Madhusudan (PW-2), it is clear that they have not produced ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:56 ::: 10 apeal197.01 material documents before the Court to show that they have to recover balance amount from Mahila Gruha Udyog Lijjat Papad Centre, Amravati. It was suggested by the prosecution that some entries are shown by accused persons in respect of payment to them but those were not actually paid to Gaurishankar (PW-1) and Madhusudan (PW-2). Cross-examination of both these witnesses show that they did not file any Civil Suit for recovery of amount. Had it been so, then businessman would definitely file Civil Suits for recovery of the amount. Therefore, their evidence is not helpful to the prosecution.
9. Kantilal Doshi (PW-3) has stated in his evidence that he was working as an agent of Shri Mahila Gruha Udyog Lijjat Papad, Branch Amravati. He was having dealership of Mahila Gruha Udyog Lijjat Papad, Amravati. He was having dealership all over Vidarbha region. He has stated that he paid Rs.39,618.50 to accused no.1. Accused no.1 issued receipt. He has stated about the transaction with accused nos. 1 and 2. He was shown the bill books and some documents of Mahila Gruha Udyog Lijjat Papad. He has stated that neither he paid amount nor he received any receipt. In the cross- examination, he has admitted that he was coming once or twice in a ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:56 ::: 11 apeal197.01 month from Nagpur to Amravati to settle his account of Lijjat Papad. He was supplying raw material to Lijjat Papad and in lieu thereof, Lijjat Papad was supplied. Lijjat Papad was supplied after a gap of 2- 3 days to Nagpur. He was making entry of Lijjat Papad which he received in the Stock Register. Sometimes he personally and sometimes his servant used to take entry in the stock register. He has stated in his evidence that without seeing his stock register, he cannot say as to how much Lijjat Papad he received in the month of January 1989. He has further admitted that dispute was raised about Lijjat Papad at the end of 1989.
10. Kantilal Doshi (PW-3) has further stated that accused persons refused to supply Lijjat Papad and therefore, he filed Civil Suit against them contending that dealership of Lijjat Papad should be given in his name only. It was suggested that he was not supplying raw material of good quality and therefore, there was dispute between them. He has admitted that he received amount by Cheque and he deposited said amount in the Bank. He had taken entry in the Account Book. He could not state before the Court as to how much cheques he received from the accused persons. Therefore, ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:56 ::: 12 apeal197.01 evidence of this witness is also not helpful to show misappropriation etc.
11. Nanda w/o. Pramod Wathodkar (PW-4) and Archana w/o. Arvind Deshmukh are servants of Mahila Gruha Udyog Lijjat Papad, Amravati. They have stated about payment etc.
12. Utpal (PW-6) is the material witness who conducted audit from the year 1988 to 1990. He has stated in his evidence that he conducted audit of the Institution of Mahila Gruha Udyog Lijjat Papad, Amravati. He found various irregularities. He found that the accused persons have misappropriated the amount of Institution to the tune of Rs.3,06,250/-. In the cross-examination, he has admitted that audit for the period from 1988 to 1989 was done by one Ramesh Kulkarni. He had not produced said Audit Report of Kulkarni.. He has admitted that his team members conducted audit and he had verified the same. Rough notes which were prepared by his team members were not produced. He has specifically admitted in his cross-examination that persons who were working at the relevant period of audit were not in service at the time of audit and therefore, he could not get explanation about wrong entries shown in ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:56 ::: 13 apeal197.01 the Account books. He has further admitted that the persons who prepared record and maintained it can give satisfactory explanation at the time of audit. He has stated that he found irregularities in maintaining the accounts.
13. Prosecution has to prove the guilt of accused beyond reasonable doubt. From the perusal of evidence of Gaurishankar (PW-1) and Madhusudan (PW-2), it is apparent that they were suppliers of raw material to Mahila Gruha Udyog Lijjat Papad, Amravati. Their cross-examination shows that some amounts were outstanding against the Institution, but they did not file Civil Suit or any other proceedings against Institution for recovery of same. Silence on their part shows that they have not to recover anything.
14. Kantilal Doshi (PW-3) was the dealer of the Institution. There was dispute in respect of supply of raw material by Kantilal. Therefore, his dealership was cancelled. Hence, Kantilal Doshi (PW-
3) filed Civil Suit for declaration that dealership be given only to him and none else.
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15. Auditor Utpal (PW-6) who conducted audit is not specific in the entries in respect of misappropriation. On the other hand, his cross-examination shows that he found irregularities. Some entries were shown in the Ledger but not in Account Book etc. He has specifically admitted that the persons who had taken entry were not in service at the time of audit. Those persons could have given explanation to him about the entries not taken in the corresponding books of account. Auditor was at liberty to call the concerned employee at the time of audit to get clarification from them. But he did not call them. Therefore, it cannot be said that misappropriation as stated by him is duly proved by prosecution. Material witnesses i.e. complainant and Investigating Officer are not examined by the prosecution. Evidence clearly shows that prosecution has miserably failed to prove guilt of accused. Trial Court has rightly acquitted all the accused persons. There is no merit in the appeals. Hence, I proceed to pass the following order :
// ORDER // Criminal Appeal Nos. 197 of 2001, 198 of 2001, 199 of 2001 and 200 of 2001 are hereby dismissed. ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:56 :::
15 apeal197.01 No order as to costs.
The record and proceedings be sent back to the trial Court.
JUDGE [jaiswal] ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:56 ::: 16 apeal197.01 ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:56 :::