Gujarat High Court
Gordhanbhai vs State on 22 June, 2009
Author: K.S.Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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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
APPEAL No. 2368 of 2005
With
CRIMINAL
APPEAL No. 64 of 2008
For Approval
and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
1
Whether Reporters of Local Papers may be allowed to see the judgment ?
2To be referred to the Reporter or not ?
3Whether their Lordships wish to see the fair copy of the judgment ?
4Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5Whether it is to be circulated to the civil judge ?
========================================================= GORDHANBHAI PREMJIBHAI BALAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance :
MR MITESH R AMIN for Appellant(s) : 1, MS MANISHA LAVKUMAR SHAH, APP for Opponent(s) :
1, in all APPEALS ========================================================= CORAM :
HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 22/06/2009 ORAL COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 Criminal Appeal No. 2417 of 2005, under section 374 of the Code of Criminal Procedure, 1973, filed by the appellant original accused No.1, is directed against the judgment and order of conviction and sentence dated 29.7.2005 passed by the learned Additional Sessions Judge, Amreli, in Sessions Case No. 52 of 2004, whereby the appellant -
accused No.1 has been convicted and sentenced to undergo R.I. for 7 years with fine of Rs. 4000/- i/d to undergo simple imprisonment for eight months.
1.1 Criminal Appeal No. 2366 of 2005, under section 378(1)(3) of the Code of Criminal Procedure, 1973, filed by the State of Gujarat, is directed against the judgment and order of acquittal dated 29.7.2005 passed by the learned Additional Sessions Judge, Amreli, in Sessions Case No. 52 of 2004, whereby the learned Addl. Sessions Judge has acquitted the respondent original accused No.4 from the charges levelled against him.
1.2 Criminal Appeal No. 2367 of 2005, under section 377 of the Code of Criminal Procedure, 1973 is filed by the State of Gujarat for enhancement of sentence awarded to the respondents original accused Nos.1, 2 & 3, by the learned Additional Sessions Judge, Amreli, vide judgment and order dated 29.7.2005 passed by the learned Additional Sessions Judge, Amreli, in Sessions Case No. 52 of 2004, whereby the accused were convicted and sentenced to undergo RI for seven years with fine of Rs.4000/- i/d to undergo simple imprisonment for eight months.
1.3 Criminal Appeal No. 2368 of 2005, under section 378(1)(3) of the Code of Criminal Procedure, 1973, filed by the State of Gujarat, is directed against the judgment and order of acquittal dated 29.7.2005 passed by the learned Additional Sessions Judge, Amreli, in Sessions Case No. 65 of 2004, whereby the learned Addl. Sessions Judge has acquitted the respondent original accused No.5 from the charges levelled against him.
1.4 Criminal Appeal No. 64 of 2008, under section 374 of the Code of Criminal Procedure, 1973, is filed by the appellants original accused Nos.2 & 3 against the judgment and order of conviction and sentence dated 29.7.2005 passed by the learned Additional Sessions Judge, Amreli, in Sessions Case No. 52 of 2004.
2.0 The brief facts of the prosecution case are as under:
2.1 It is the case of the prosecution that on 10.2.2004 one Mr. V.C. Manjariya, complainant was discharging his duty as Police Sub Inspector at Rajula Police Station. On information being received by Bhabhlubhai Hakabhai, Head Constable that three persons were coming from Surat and would be staying at the place of Chhaganbhai Lavjibhai Patel, and all were in activities of counterfeiting currency notes, the complainant Shri Manjariya went to the place of offence along with police staff and panchas. On reaching the place of incident they found three persons, namely, the present appellants original accused Nos.1, 2 & 3, who were actively found in the activity of making fake currency notes of Rs.100 and Rs.500 etc. The complainant after making close scrutiny at the place of incident at every nook and corner and after performing due process of law collected all materials lying at the place. It is also alleged in the complaint that mean time, during interrogation, name of one other accused person is also disclosed. The said person was also arrested and interrogated by the police and was taken into the custody. All the persons were charged with the offences with regard to counterfeiting currency notes.
2.2 On the basis of complaint the police recorded the statement of witnesses, collected the documentary evidence, drew necessary panchnama and after thorough investigation, as there was sufficient evidence connecting the respondents with the alleged offence, charge-sheet was filed against the accused before the Court of learned Judicial Magistrate, First Class. As the offence alleged against the respondents was exclusively triable by a Court of Sessions, the learned JMFC, committed the case to the Court of Sessions, Amreli, which was numbered as Sessions Case No. 52 of 2004.
2.3 It is to be noted that in the original charge-sheet in column No.2 one Pravinbhai Jayrambhai Chopda, original accused No.5 was shown as absconding. Originally, the Sessions Case No.52 of 2004 was registered against the original accused Nos.1 to 4 and the case was committed to the Sessions Court. Thereafter accused No.5 was arrested and charge sheet was filed against him on 23.6.2004 and the case was committed to the Court of Sessions u/s.209 Cr.P.C., which was numbered as Sessions Case No.65 of 2004. Since all the accused were involved in the same transaction, both the Sessions Cases were consolidated.
2.4 Thereafter the charge was framed against all the accused by the learned Additional Sessions Judge, Amreli. The accused pleaded not guilty to the charge and claimed to be tried. Thereafter, the trial was conducted against the accused.
2.5 To prove the case against the respondents - accused, the prosecution has examined following witnesses :
Pareshbhai Kamleshbhai, Ex.14;
Vinubhai Parshottambhai, Ex.16;
Chhaganbhai Lavjibhai, Ex.18;
Bhabhlubhai Hakabhai , Ex.19;
Bachubhai Umedsinh Gohil, Exh.27;
Babubhai Jeshankerbhai Joshi, Ex.34;
Vajirbhai Chandbhai Gori, Ex.36;
Shantilal Mavjibhai Vegda, Ex.37;
Pankajbhai Premjibhai Patel, Ex.38;
Ghanshyamsinh Ranjitsinh Chudasma, Ex.39;
Shailesh Harikrushna Shah, Ex.43;
Investigating Officer & PSI Vanrajsinh Suragbhai Manjaria, complainant, Ex.45;
Investigating Officer & PSI Gambhirsinh Tapubha Jadeja, Exh. 60;
Aniruddhsinh Ranjitsinh Chudasma, Ex. 71;
Gumansinh Natubha Chudasma, Exh. 73;
Gautam Kantilal Raval, Exh. 74;
Bhimjibhai Gopalbhai Patel, Exh. 77 2.6 The prosecution has produced the following documents:
1. Panchnama of arrest of accused and the recovery of Muddamal articles, Exh.
28;
Rehearsal panchnama, Exh. 35;
Complaint Exh. 46;
Panchnama of recovery of muddamal colour xerox machine from the house of father of accused No.4;
Search order made by PSI Manjaria under the provision of Section 166 Cr.P.C. of the house of father of accused No.4, Exh. 48;
Panchnama of arrest and physical condition of accused No.4 Exh.49;
Recovery panchnama of four cartridges of HP Inject Printers from the house of Vaghjibhai Dharamshibhai at Polarpur, Exh. 61;
Rehearsal panchnama in presence of Videographer showing as to how the bogus currency notes worth Rs.100 and Rs.500 on one side are prepared in colour xerox, Exh. 62;
Report submitted by PSI Gambhirsinh Tapubha Jadeja regarding transfer of papers to PSI, Rajula, on his transfer, Exh. 63;
Report made by PSO Shri Rathod, about handing over investigation to PSI Shri Gambhirsinh Tapubha Jadeja (PW 13) of Jafrabad Police Station, after registration of offence, Exh. 64;
Copy of Janva Jog Entry no.1/04 of Barvala Police Station, Exh. 65;
Muddamal Receipt of Entry No.1/04 of Barvala Police Station, Exh. 66;
2.7 Thereafter, the statements of the accused under Section 313 Cr. P. C. were recorded in which also the accused denied the charges leveled against them and stated that they have been falsely involved in the commission of offence. After considering the oral as well as documentary evidence and after hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge, Amreli, by Judgment and order dated 29.7.2005 convicted the accused Nos.1, 2 & 3 for the offences punishable under Sections 489-A, 489-C and 489-D read with Section 34 I.P. Code and awarded sentence of 7 years' Rigorous imprisonment with fine of Rs.4000/- for each offence and in default to under-go simple imprisonment for 8 months. The learned Sessions Judge also ordered that sentence shall run concurrently. By the said Judgment and order the learned Additional Sessions Judge was pleased to acquit the accused Nos.4 & 5 from the offences charged against them.
2.7 Being aggrieved by and dissatisfied with the Judgment and Order dated 29.7.2005 passed by the learned Additional Sessions Judge, Amreli, in Sessions Case No. 52 of 2004 and 65 of 2004 respectively, the appellant original accused No.1 filed Criminal Appeal No.2417 of 2005 challenging the Judgment and order of conviction passed by the learned Additional Sessions Judge, the appellant State of Gujarat has filed Criminal Appeal No.2366 of 2005 against the Judgment and order acquittal of original accused No.4, Criminal Appeal No. 2367 of 2005 for enhancement of sentence to the original accused Nos.1, 2 & 3, Criminal Appeal No.2368 of 2005 against the Judgment and order of acquittal of original accused No.5, Criminal Appeal No.64 of 2008 by original accused Nos.2 & 3 against the Judgment and order of conviction, passed by the learned Addl. Sessions Judge.
3.0 First we will deal with Criminal Appeal No.2366 of 2005 and Criminal Appeal No.2368 of 2005, filed by the State of Gujarat, challenging the Judgment and Order of acquittal of original accused Nos.4 & 5 passed by the learned Addl. Sessions Judge, Amreli, in above Sessions Case.
4.0 We have heard learned APP Ms. Manisha Shah on behalf of appellants State and learned Advocate, appearing on behalf of the respondent - original accused No.4 in Criminal Appeal No.2366 of 2005. We have also gone through the papers produced before us. It was contended by learned APP that the judgment and order of the learned trial Judge is against the provisions of law; the learned Judge has not properly appreciated oral as well as documentary evidence available on the record of the case in its true and proper perspective. She has contended that the witnesses have fully supported the case of the prosecution. She has also contended that the learned Judge ought to have appreciated that there was common intention of the original accused Nos.1 to 5 to make fake currency notes and, therefore, they are equally responsible and that they were having possession of fake currency notes to which they could not give proper explanation. She, therefore, contended that the Judgment of learned Judge is erroneous and bad in eye of law.
5.0 We have gone through the Judgment of the trial Court. We have also gone through the record & proceedings. We have also perused the reasons assigned by the learned Additional Sessions Judge. We have also gone through the papers produced before us. Learned APP has taken us through the evidence of the prosecution witnesses.
6.0 At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
54.
In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.
6.1 Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , glaring mistakes , etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
6.2 Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
6.3 Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record.
A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.
6.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
6.5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
& This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.
6.6 Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
7.0 Apart from that the prosecution has not proved its case beyond reasonable doubt against the original accused Nos.4 and 5.
7.1 While appreciating the evidence on record the learned Counsel for the State is not in a position to show any evidence against the original accused Nos.4 & 5. While appreciating the evidence the trial Court has found that there is no case against accused Nos. 4 & 5 and, therefore, benefit is required to be given to the accused Nos. 4 & 5.
7.2 The trial Court has also found that as per the case of the prosecution the colour xerox machine was seized from the house of father of accused No.4, but the prosecution could not prove the ownership of said xerox machine. It is also not brought on record that accused No.4 is staying with his father. The investigation office has inspected the house of accused No.4, but in incriminating articles were recovered from his house. It is also required to be noted that when the xerox machine was seized and when the raid was carried out at Kandatiya village, accused No.4 was not present. There is not a single evidence to connect the accused No.4 in the commission of offence. The trial Court has also found that the prosecution has also failed to prove the charges levelled against against accused No.5. Learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial Court is vitiated by some manifest illegality or that the decision is perverse or that the trial Court has ignored the material evidence on record.
7.3 Looking to the above evidence, the trial Court has rightly not believed the case of prosecution and acquitted the original accused Nos.4 & 5 from the charges levelled against them.
7.4 Thus, from the evidence itself it is established that the prosecution has not proved its case against the accused Nos.4 & 5 beyond reasonable doubt. Ms. Manisha Shah, learned APP is not in a position to show any evidence to take a contrary view of the matter or that the findings of the trial Court suffers from any manifest illegality or that the decision is perverse or that the trial Court has ignored the material evidence on record. In that view of the matter the view taken by the trial Court is just and proper.
8.0 In above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the original accused Nos.4 & 5 of the charges leveled against them. We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. Hence Criminal Appeals No. 2366/05 and 2368/05, filed by the State of Gujarat, are hereby dismissed. The Judgment and order dated 29.7.2005 passed by the learned Additional Sessions Judge, Amreli, acquitting the accused Nos.4 & 5 respondents in Criminal Appeals No.2366/05 and 2368/05 are hereby dismissed.
9.0 Now we will deal with the Criminal Appeal No.2367 of 2005, filed by the State for enhancement of sentence awarded by the learned Additional Sessions Judge, Amreli.
10.0 It is contended by the learned APP that the judgment and order of the learned trial Judge is against the provisions of law; the learned Judge has not properly appreciated oral as well as documentary evidence available on the record of the case in its true and proper perspective. She has contended that the witnesses have fully supported the case of the prosecution. She has also contended that since the accused have committed the crime against the national economy and, therefore, in such type of cases the Court should not have taken a lenient view and the accused should have been awarded punishment of minimum 10 years sentence.
10.1 We have gone through the Judgment of the trial Court. We have also gone through the papers produced before us. Section 489A, B, C & D of Indian Penal Code read as under :
A. Counterfeiting currency notes or bank notes Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any currency note or bank note, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation For the purpose of this section and of section 489B, (489C, 489D and 489E), the expression bank-note means a promissory note or engagement for the payment of money to bearer on demand issued by any person carrying on the business of banking in any part of the world, or issued by or under the authority of any State or Sovereign Power, and intended to be used as equivalent to, or as a substitute for money).
489B. Using as genuine, forged or counterfeit currency-notes or bank-notes Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine).
489C. Possession of forged or counterfeit currency-notes or bank-notes Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both).
489D. Making or possession instruments or materials for forging or counterfeiting currency-notes or bank-notes Whoever makes, or performs, any part of the process of making, or buys or sells or disposes of, or has in his possession, any machinery, instrument or material for the purpose of being used, or knowing or having reason to believe that it is intended to be used, for forging or counterfeiting any currency-note or bank-note, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.) 10.2 In view of above provisions, we are of the opinion that, keeping in mind the documents on record, keeping in mind the total quantity of currency notes found at the time of raid, the sentence awarded by the trial Court is the discretion exercised in judicial manner which is difficult to interfere by this Court. In that view of the matter even if the second view is possible, in our view, the view taken by the Sessions on appreciation of oral as well as documentary evidence, is just and proper and, therefore, we are of the view that the sentence awarded to the original accused Nos.1,2 & 3 by the Sessions Court is proper and we are not interfering with the same.
11.0 Accordingly, Criminal Appeal No.2367 of 2005, filed by the State, for enhancement of sentence awarded by the learned Additional Sessions Judge, Amreli in Section Case No.52 of 2004, is hereby dismissed.
12.0 Now we will deal with the Criminal Appeal Nos.2417 of 2005 and Criminal Appeal No.64 of 2008.
13.0 Criminal Appeal No.2417 of 2005 is filed by the appellant original accused No.1 challenging the Judgment and order of conviction and sentence dated 29.7.2005 passed by the learned Additional Sessions Judge, Amreli in Sessions Case No.52 of 2004.
13.1 Criminal Appeal No. 64 of 2008 is filed by the appellants original accused No.2 & 3 challenging the Judgment and order of conviction and sentence dated 29.7.2005 passed by the learned Additional Sessions Judge, Amreli in Sessions Case No.52 of 2004.
14.0 Learned Counsel Mr. Popat on behalf of the original accused No.1 has contended that the trial Court has not considered the fact that currency notes seized by the police were not the complete currency notes and it was only a preparation and, therefore, the trial Court committed an error in holding the accused guilty for the offence under Sections 489A of I.P. Code. He has further contended that the time of raid and the panchnama are differing. In that view of the matter, there are serious lapses in the Judgment and, therefore, the benefit of doubt is required to be given in favour of the accused appellants.
14.1 Learned Counsel has further contended that the prosecution has not proved the ownership and possession of scene of place and, therefore, also they are required to be acquitted from the charges levelled against them.
14.2 Learned APP Ms. Manisha Lavkumar Shah has supported the Judgment and order of the Sessions Court. However, she has contended that in such a serious crime no leniency should be shown and the sentence which has been imposed is too lenient and the minimum sentence of 10 years to each of the accused is required to be awarded.
15.0 We have gone through the Judgment and order of the trial Court. We have also considered the submissions advanced by both the parties. The learned Judge has rightly observed it has been proved beyond doubt that the muddamal articles were found from the room situated in the vadi of Chhaganbhai Lavjibhai which were in exclusively in the possession and occupation of accused Nos.1, 2 & 3 and it has also been rightly observed that from the articles recovered which are meant for preparing fake currency notes the mansria to prepare fake currency notes and to circulate the same in the market is proved beyond doubt. Further, no explanation worth the name has been given by the accused persons as to how and why the aforesaid muddamal articles were found in their custody and possession and, therefore, the learned Judge has rightly held the accused Nos.1 to 3 guilty for the offences charged against them. In our view the learned Judge has rightly held the accused for the charges levelled against them and we see no reason to interfere with the same. Accordingly, both Criminal Appeals No.2417 of 2005 and Criminal Appeal No.64 of 2008 are required to be dismissed.
16.0 In view of above, all the Appeals i.e. Criminal Appeal No. 2417/05, filed by the original accused No.1, Criminal Appeal No.64 of 2008, filed by the original accused Nos.2 & 3, Criminal Appeal Nos. 2366 of 2005 & 2367 of 2005 against the order of acquittal of original accused Nos.4 & 5 respectively, and Criminal Appeal No. 2367 of 2005 for enhancement of sentence awarded to the original accused, are hereby dismissed. Bail Bonds shall stand cancelled. Records & Proceedings be sent to the trial Court.
(K.S.JHAVERI,J.) (Z.K.SAIYED, J.) sas Top