Gujarat High Court
Shriram Finance Limited (Shriram ... vs State Of Gujarat on 12 December, 2024
NEUTRAL CITATION
R/CR.MA/19068/2024 ORDER DATED: 12/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 19068
of 2024
In F/CRIMINAL APPEAL NO. 36721 of 2024
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SHRIRAM FINANCE LIMITED (SHRIRAM TRANSPORT FINANCE CO.
LIMITED) THRO PANKAJSINH VIKRAMSINH JETAVAT
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MANISH J PATEL(2131) for the Applicant(s) No. 1
MS NAMRATA R MULCHANDANI(9956) for the Applicant(s) No. 1
MR VISHVESH A PANDYA(12941) for the Respondent(s) No. 2
MS JYOTI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 12/12/2024
ORAL ORDER
1. Present application for Leave to Appeal is filed by the applicant under Section 419 (2)(b) of the Bharatiya Nagarik Suraksha Sahita (for short "B.N.S.S.") against the judgment and order of acquittal dated 28.8.2024 passed by the learned Additional Chief Judicial Magistrate (hereinafter referred to as "the trial Court") in Criminal Case No.583 of 2015, whereby, the trial Court has acquitted the original accused - respondent herein for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 ("N.I. Act" for short).
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2. It is a case of the complainant that the complainant has advanced loan to the present respondent in 2010 and for that the hypothecation agreement was executed by and between the parties on 24.11.2010. At that time, the applicant has collected an advance blank cheque for the purpose of security. The total amount advanced was of Rs.6,25,000/- and the monthly installment was of Rs.17,214/- for a period of 48 months.
2.1 As the respondent was not regularly paying the amount of installment, the company has demanded the remaining amount of Rs.5,00,000/-. As the same was not paid and therefore, the complainant has deposited the security cheque being cheque No.057214 dated 2.12.2014 for a sum of Rs.5,00,000/- in I.C.I.C.I., Bank, Himmatangar Brach, and the same was returned with an endorsement that "insufficient funds". Therefore, the complainant issued legal statutory notice through Registered Post A.D. and simple post both. The notice sent through Registered Post A.D. was returned with "unclaimed intimation". and the notice sent through Page 2 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024 NEUTRAL CITATION R/CR.MA/19068/2024 ORDER DATED: 12/12/2024 undefined simple post was served upon the respondent accused, however respondent accused had not replied the same nor amount was paid to the complainant. Thereafter, the complainant has filed complaint under Section 138 of the N.I. Act against respondent accused.
2.2 After recording the plea, the Court has issued a summons to the respondent. On receipt of the same, the respondent accused appeared before the Court and charge was framed against the present respondent. The accused has not pleaded guilty for the alleged charges under Section 138 of the N.I. Act and thereafter, the trial was commenced and case has tried for the offence under Section 138 of the N.I. Act.
2.3 After hearing both the side and perusing the material and evidence on record, the trial Court has acquitted the respondent-accused from the charges under Section 138 of the N.I. Act vide judgment and order dated 28.8.2024 in Criminal Case No.583 of 2015.
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3. Heard Mr. M.J. Patel, learned Counsel for the applicant and Ms. Jyoti Bhatt, learned APP for the respondent State.
4. Mr. M.J. Patel, learned Counsel for the applicant has submitted that the trial Court has not properly appreciated and considered the facts of the preened case, the evidence on record, the arguments advanced by both the sides and thereby, committed serious error of law and on facts both. He has submitted that the trial Court has mainly disbelieved the case of the complainant on the ground that the person, who has deposed before the Court, on the basis of Power of Attorney, was not having any knowledge with regard to the transaction taken place prior to the date of their authorization and thus, the impugned judgment and order passed by the trial Court is erroneous, unjust and illegal.
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4.2 In view of the above, Mr. Patel, learned Counsel for the applicant complainant urges before the Court that present application for Leave to Appeal my be allowed and the Appeal may be Admitted.
5. I have perused the material available on record as well as the documents appended thereto. I have also gone through the impugned judgment and order of acquittal passed by the trial Court. I have also examined the evidence recorded by the trial Court.
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6. On perusal of the impugned judgment and order of acquittal, it appears that the trial Court has considered the provision of N.I. Act, and more particularly, Section 118, 138, 139 and 142 which read as under:-
"118. Presumptions as to negotiable instruments.--Until the contrary is proved, the following presumptions shall be made:--
(a) of consideration:--that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date:--that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance:--that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer:--that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements:--that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on;
(f) as to stamp:-- that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course:--that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or accept or thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
138. Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that Page 6 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024 NEUTRAL CITATION R/CR.MA/19068/2024 ORDER DATED: 12/12/2024 undefined account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years'], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.
139. Presumption in favour of holder.--It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section138 for the discharge, in whole or in part, of any debt or other liability.
142. Cognizance of offences.--[(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:
[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;] Page 7 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024 NEUTRAL CITATION R/CR.MA/19068/2024 ORDER DATED: 12/12/2024 undefined
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.].
[(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,-- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.
Explanation.--For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.]"
7. After considering the above referred Sections and after considering the facts of the case as well as the oral and documentary evidence produced before the trial Court, the trial court has discussed the provision of law and passed the impugned judgment and order. The trial Court after considering the judgment of Hon'ble Apex Court in case of Jugesh Sehgal vs. Shamsher Singh Gogi, reported in (2009) 14 SCC 683 wherein discussion of basic ingredients of Section 138 of N.I. Act is made has passed the impugned judgment and order and has observed that the applicant-original complainant failed to prove the said ingredients envisaged by the Page 8 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024 NEUTRAL CITATION R/CR.MA/19068/2024 ORDER DATED: 12/12/2024 undefined above refereed judgment by the Hon'ble Apex Court and recorded the findings in favour of the present respondent.
8. While considering the said fact, the trial Court has also considered the fact that the person who has deposed was not having any knowledge about the transaction and the hypothecation agreement executed by and between the parties, which is absolutely against the settled principle of law as enunciated by the Hon'ble Apex Court in case of A.C. Narayan vs. State of Maharashtra reported in 2014 11 SCC 790, wherein the three Judges bench of the Hon'ble Apex Court has discussed about Section 200 of the Code and held as under:-
"22) From a conjoint reading of Sections 138, 142 and 145 of the N.I. Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the Page 9 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024 NEUTRAL CITATION R/CR.MA/19068/2024 ORDER DATED: 12/12/2024 undefined form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the N.I. Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.
23) In the light of the discussion, we are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. An exception to the above is when the power of attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant-payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness.
Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous.
24) In view of the discussion, we are of the opinion that the attorney holder cannot file a complaint in his own name as if he was the complainant, but he can initiate criminal proceedings on behalf of his principal. We also reiterate that where the payee is a proprietary concern, the complaint can be filed (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the "payee"; (ii) the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and
(iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor.
25) Similar substantial questions were raised in the appeal arising out of S.L.P (Crl.) No. 2724 of 2008, which stand answered as above. Apart from the above questions, one distinct query was raised as to whether a person authorized by a Company or Statute or Institution can delegate powers to their subordinate/others for filing a criminal complaint? The issue raised is in reference to validity of sub-delegation Page 10 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024 NEUTRAL CITATION R/CR.MA/19068/2024 ORDER DATED: 12/12/2024 undefined of functions of the power of attorney. We have already clarified to the extent that the attorney holder can sign and file a complaint on behalf of the complainant-payee. However, whether the power of attorney holder will have the power to further delegate the functions to another person will completely depend on the terms of the general power of attorney. As a result, the authority to sub- delegate the functions must be explicitly mentioned in the general power of attorney. Otherwise, the sub-delegation will be inconsistent with the general power of attorney and thereby will be invalid in law. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.
9. The said decision is subsequently refereed and reiterated by the Hon'ble Apex Court in Mita India Pvt.
Ltd vs. Mahendra Jain reported in 2023 3 SCALE 18 and after considering the above referred judgment this Court, in case of Yunusbhai Adambhai Vohra vs. Gunwantbhai Harmanbhai Patel through Jaydeep Gunwantbhai Patel reported in 2023 LawSuit Gujarat 1674 has held as under:-
"15. In the case of Mita India Pvt.Ltd. (supra), it is held by the Hon'ble Apex Court in paragraphs 7, 14 and 15 as under:
"7. The Apex Court through the above decision has laid down the following principles: -
i) Filing of a complaint under Section 138 Negotiable Instruments Act, 1881 through power of attorney holder is undefined perfectly legal provided he has due knowledge about the transaction (s) in question;
ii) Power of attorney holder can depose and verify on oath to prove the contents of the complaint if he has witnessed the transaction;
iii) The complaint filed through power of attorney Page 11 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024 NEUTRAL CITATION R/CR.MA/19068/2024 ORDER DATED: 12/12/2024 undefined holder must contain an assertion/ that he had the knowledge about transactions in question;(2014) 11 SCC 790
iv) Functions under general power of attorney cannot be delegated to another person without a specific clause permitting the same in the general power of attorney.
v) The affidavits of complainant, his witnesses or his power of attorney holder are permissible and sufficient for taking cognizance on the complaint; and
vi) The complaint by power of attorney holder on behalf of the original complainant is maintainable though he cannot file a complaint in his own name.
14. Now coming to the second aspect of the matter as to whether Kavindersingh Anand could depose on behalf of the appellant company, it has to be noted that he was one of the directors of the company who has been specifically authorised to lodge the complaint and to pursue it. It has come on record that he has filed his personal affidavit dated 26.03.2018 stating that he is general power of attorney holder of the appellant company and that since he is also a undefined director, he is fully conversant with the facts of the case and hence is competent to pursue the litigation on behalf of the appellant company. The High Court has very conveniently ignored the said affidavit and for the reason that as such an averment is not contained in the complaint, held that he was not authorised to depose on behalf of the appellant company.
15. We are of the considered opinion that the High Court manifestly erred in recording the above opinion when the affidavit of the power of attorney holder was on record containing that he has personal knowledge of the transactions."
16. In the case of A.C.Narayanan (supra), it is held in paragraphs 30 to 33 as under:
"30. In the light of the discussion, we are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. An exception to the above is when the Page 12 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024 NEUTRAL CITATION R/CR.MA/19068/2024 ORDER DATED: 12/12/2024 undefined power of attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant-payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as undefined a witness. Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous.
31. In view of the discussion, we are of the opinion that the attorney holder cannot file a complaint in his own name as if he was the complainant, but he can initiate criminal proceedings on behalf of his principal. We also reiterate that where the payee is a proprietary concern, the complaint can be filed
(i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the "payee";
(ii) the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and
(iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor.
32. Similar substantial questions were raised in the appeal arising out of S.L.P (Cri.) No. 2724 of 2008, which stand answered as above. Apart from the above questions, one distinct query was raised as to whether a person authorized by a Company or Statute or Institution can delegate powers to their subordinate/others for filing a criminal complaint?
The issue raised is in reference to validity of sub- delegation of functions of the power of attorney. We have already clarified to the extent that the attorney holder can sign and undefined file a complaint on behalf of the complainant-payee. However, whether the power of attorney holder will have the power to further delegate the functions to another person will completely depend on the terms of the general power of attorney. As a result, the authority to sub-delegate the functions must be explicitly mentioned in the general power of attorney. Otherwise, the sub- delegation will be inconsistent with the general power of attorney and thereby will be invalid in law.
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33. While holding that there is no serious conflict between the decisions in MMTC (AIR 2002 SC 182 :
2001 AIR SCW 4793) (supra) and Janki Vashdeo Bhojwani (AIR 2005 SC 439 : 2004 AIR SCW 7064) (supra), we clarify the position and answer the questions in the following manner:
33.1 Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.
33.2 The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions undefined 33.3 It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.
33.4 In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.
33.5 The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney.
Nevertheless, the general power of attorney itself can be cancelled and be given to another person."
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17. Considering the above, in the present case, it is found that there is no specific averment made in the complaint about the personal knowledge of the power of attorney holder or that he is witness to the entire undefined transaction along with principal person who has executed power of attorney and he cannot be said as `payee and holder in due course' and therefore not competent to file complaint under Section 138 of the NI Act. It also transpires from the averments made in the complaint that some cheques were issued in favour of the original complainant for some dues regarding the purchase of tobacco. The transactions are of 2016-17 and 2017-18 as alleged in the notice, liability of which was also disputed in the reply given to notice and the complaint, however, there are no other documents produced on the record like statement of account, any bills or any contract to show that there are as such commercial transaction between the present applicant and the complainant. The power of attorney annexed to the complaint does not meantion teh cheque and there is no specific authorization and there is no averment in complaint or affidavit of verification with regard to knowledge to power of attorney, and thus the verification is not by the `payee and holder in due course'. There is no statement of account or income tax returns produced on the record of these applications to indicate any iota of evidence to show that there is some debt existing."
10. Considering the above referred ratio laid down by the Ho'ble Apex Court the trial Court has rightly passed the impugned judgment and order of acquittal more particularly the observations made in paragraph Nos. 13 onwards.
11. Since the applicant complainant has failed to prove the basic ingredients as required under the provision of law, the trial Court has passed the impugned judgment Page 15 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024 NEUTRAL CITATION R/CR.MA/19068/2024 ORDER DATED: 12/12/2024 undefined and order acquitting the respondent - accused from the charges levelled against him under Section 138 of the N.I. Act. Hence, in my view the trial Court has not committed any error in passing the impugned judgment and order of acquittal.
12. It is also now well settled that while exercising powers under Section 419 (2)(b) of B.N.S.S., if the trial/Special Court while passing the order has committed any illegality or any perversity or has exceeded the jurisdiction, unless and until such facts come on record, the Court is very slow while dealing with an acquittal appeal. The Hon'ble Apex Court has in a series of judgments enunciated the principles while exercising jurisdiction under Section 419 (2)(b) of B.N.S.S. against acquittal, the power of the Appellate Court is inasmuch as re-appreciate the evidence, view or re-consider the evidence and if the Court finds that there is any illegality or any irregularity in the judgment then in that case only, the Court has power to entertain the appeal and interfere with the order of acquittal. The scope and principles are Page 16 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024 NEUTRAL CITATION R/CR.MA/19068/2024 ORDER DATED: 12/12/2024 undefined enunciated by the Hon'ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415, more particularly paragraphs 42 and 43, which was subsequently re-
affirmed by the Hon'ble Apex Court Rajesh Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon'ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph 26 the general principles are set out by the Hon'ble Apex Court based upon various decisions of the Hon'ble Apex Court. Then in case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149, the Hon'ble Apex Court has dealt with the similar issue, more particularly, in paragraph Nos. 37 to 40. Hence, I am in complete agreement with the findings recorded by the trial Court.
13. It is also worthwhile to refer to the recent decision of the Hon'ble Supreme Court in the case of Ramesh vs. Page 17 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024 NEUTRAL CITATION R/CR.MA/19068/2024 ORDER DATED: 12/12/2024 undefined State of Karnataka, reported in [2024] 9 SCC 169, wherein the Hon'ble Supreme Court has held and observed in paras-20 and 21 as under:-
"20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka , regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus:
"42. .... (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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize 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.Page 18 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024
NEUTRAL CITATION R/CR.MA/19068/2024 ORDER DATED: 12/12/2024 undefined (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.
21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained."
14. The Court has framed general guild lines and principles while exercising the power under Section 419 (2)(b) of B.N.S.S. against the judgment and order of the acquittal and under the general guild lines issued by the Apex Court, this Court is of the opinion that present appeal does not deserve to be entertained and the same requires to be dismissed.
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15. Further, on perusal of the impugned judgment and order of the trial Court, it clearly transpires that the trial Court has taken into consideration all the facts while acquitting the accused. It also appears from the impugned judgment and order that the trial Court has appreciated the entire evidence in its true perspective and has come to the right conclusion in acquitting the accused.
16. For the foregoing reasons and in view of the aforesaid decisions of the Hon'ble Apex Court and this Court, present Leave to Appeal is hereby dismissed.
17. In view of the dismissal of the application for Leave to Appeal, the Appeal which is at filing stage also stands dismissed. Record and proceedings, if received, be sent back to the concerned Court forthwith.
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 20 of 20 Uploaded by SURESH SOLANKI(HC00208) on Tue Dec 17 2024 Downloaded on : Tue Dec 17 21:27:07 IST 2024