Bombay High Court
Akhil Bhartiya Andhshraddha Nirmulan ... vs Master Kalyankar @ Mohan Mahadeo ... on 22 September, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal326.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 326 OF 2002
Akhil Bhartiya Andhshraddha Nirmulan
Samiti, District Branch Yavatmal,
Regd. No.288/86, through Mahesh
Bhagwandas Dattani, Secretary. .... APPELLANT
VERSUS
1) Master Kalyankar @ Mohan Mahadeo
Janbaji Kalyankar,
R/o Sandeep Talkies, Near Temple of
Maruti, Gadge Nagar, Yavatmal.
2) State of Maharashtra. .... RESPONDENTS
______________________________________________________________
Shri A.C. Dharmadhikari, Advocate for the appellant,
None for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 22
nd SEPTEMBER, 2017
ORAL JUDGMENT :
The challenge is to the judgment and order dated 19-4-2002 in Summary Criminal Case 2826/1996, delivered by the learned Chief Judicial Magistrate, Yavatmal, acquitting the respondent 1 (hereinafter referred to as the "accused") for offence punishable ::: Uploaded on - 22/09/2017 ::: Downloaded on - 25/09/2017 10:39:24 ::: 2 apeal326.02 under Sections 2, 3, 4, 5, 7 and 9(A) of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 (hereinafter referred to as the "Act").
2. The complainant before the trial Court, in the purported capacity of Secretary of Akhil Bhartiya Andhshraddha Nirmulan Samiti, Yavatmal Branch instituted complaint under Section 9(A) and Sections 2, 3, 4, 5 and 7 of the Act, the gist of which was that the accused published an advertisement in Marathi daily newspaper Namo Maharashtra on 7, 8 and 9th April, 1996 and in daily Loksatta on 11, 12, 14, 15 and 16th April, 1996 and the said advertisements inter alia claimed that success, marriage of daughter, conception of child, prosperity in business and the like could be ensured through yantra (magic) and ratna (diamond). The complaint states that the advertisements gave the following contact, name and address.
'Master Kalyankar, Sandeep Talkies, Behind Maroti Temple, Gadge Nagar, Yavatmal."
3. The complainant alleged that the suggestion and insinuation that the accused possesses miraculous power and that yantra and ratna could be used to ensure conception of child and the ::: Uploaded on - 22/09/2017 ::: Downloaded on - 25/09/2017 10:39:24 ::: 3 apeal326.02 like is calculated to deceive and mislead the gullible people and the advertisements constitute offence under the Act. The learned Magistrate issued process, the plea of the accused was recorded vide Exhibit 14, the accused pleaded not guilty and claimed to be tried. The defence as is discernible from the trend and tenor of the cross- examination and the statement recorded under Section 313 of the Criminal Procedure Code is of total denial.
4. The learned Magistrate held that the contents of the advertisements are objectionable and do transgress the provisions of the Act. However, the accused is acquitted on the ground that the complainant failed to establish beyond reasonable doubt that the accused is responsible for the publication of the offending advertisements.
5. The learned Counsel for the appellant Shri A.C. Dharmadhikari would urge that the judgment of acquittal borders on perversity. He would urge that the complainant conclusively established that the accused was responsible for the publication of the offending advertisements. The learned Counsel would invite my attention to the depositions of P.W.3 Chandrakant Dhakulkar, the ::: Uploaded on - 22/09/2017 ::: Downloaded on - 25/09/2017 10:39:24 ::: 4 apeal326.02 Chief Sub-Editor of Loksatta, P.W.4 Suresh Giri, the Manager of Namo Maharashtra and that of P.W.6 Ulhas Athale, the Handwriting Expert.
6. P.W.3 has proved the newspapers published on 11, 12, 14, 15 and 16th April, 1996 at Exhibits 41 to 45. However, P.W.3 did not produce the application purported to be that of the accused to link the accused to the advertisements. Similarly, P.W.4 only proves the newspapers without producing any material to link the accused to the publication. P.W.4 too did not produce any documentary evidence connecting the accused to the advertisements. P.W.6, Handwriting Expert was examined to prove the signature on a document purported to be a letter dated 07-1-1997 allegedly hand delivered by the accused to P.W.1 Mahesh Dattani. This letter dated 07-1-1997 allegedly admits that the advertisements were published by the accused. The opinion of the Handwriting Expert is on the basis of the comparison of the disputed signature of the letter dated 07-1-1997 with the standard signatures of the accused on Exhibits 6, 12, 13 and 16. The opinion and the deposition in the examination-in-chief is, however, rendered of no utility to the complainant in view of the admission that the Handwriting Expert has not opined as regards the contents of handwriting in the letter dated 07-1-1997. The further admission is ::: Uploaded on - 22/09/2017 ::: Downloaded on - 25/09/2017 10:39:24 ::: 5 apeal326.02 that the signature could not be compared with the writing in the body of the letter for want of sufficient material. That, apart, it is well settled that the opinion of the Handwriting Expert is essentially a weak piece of evidence. In the absence of cogent primary evidence on record, the evidence of the Handwriting Expert, suspect as the evidence is, does not take the case of the complainant any further. The learned Magistrate has taken a possible view. The view is certainly not perverse. The limitations of the appellate Court while scrutinized the judgment of acquittal are well recognized. I do not see any reason to disturb the judgment of acquittal.
7. The appeal is sans merit and is rejected. The bail bond of the accused shall stand discharged.
The appeal is disposed of accordingly.
JUDGE adgokar ::: Uploaded on - 22/09/2017 ::: Downloaded on - 25/09/2017 10:39:24 :::