Bombay High Court
Ramesh S/O Bapurao Marjiwe vs The State Of Mah. Thr. P.S.O. Wardha on 23 August, 2019
Author: Manish Pitale
Bench: Manish Pitale
1 REVN172-10&ors.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Revision No.172/2010
with
Criminal Revision No.173/2010
with
Criminal Revision No.174/2010
with
Criminal Revision No.175/2010
with
Criminal Revision No.176/2010
with
Criminal Revision No.178/2010
with
Criminal Revision No.179/2010
with
Criminal Revision No.180/2010
...
Criminal Revision No.172/2010
Ramesh s/o Bapurao Marjiwe,
Aged about 60 years,
R/o Wardha, Tah. & Dist. Wardha. .. APPLICANT
(Orig. Appellant/
Accused)
.. Versus ..
The State of Maharashtra,
through P.S. O. Wardha,
Tah. & Dist. Wardha. .. RESPONDENT
(Orig. Complainant)
Mr. Adwait Manohar with Mr. S.K. Bhoyar, Advocates for
Applicant.
Mr. H.R. Dhumale, A.P.P. for Respondent/State.
....
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2 REVN172-10&ors.odt
Criminal Revision No.173/2010
Ramesh s/o Bapurao Marjiwe,
Aged about 60 years,
R/o Wardha, Tah. & Dist. Wardha. .. APPLICANT
(Orig. Appellant/
Accused)
.. Versus ..
The State of Maharashtra,
through P.S. O. Wardha,
Tah. & Dist. Wardha. .. RESPONDENT
(Orig. Complainant)
Mr. Adwait Manohar with Mr. S.K. Bhoyar, Advocates for
Applicant.
Mr. H.R. Dhumale, A.P.P. for Respondent/State.
....
Criminal Revision No.174/2010
Ramesh s/o Bapurao Marjiwe,
Aged about 60 years,
R/o Wardha, Tah. & Dist. Wardha. .. APPLICANT
(Orig. Appellant/
Accused)
.. Versus ..
The State of Maharashtra,
through P.S. O. Wardha,
Tah. & Dist. Wardha. .. RESPONDENT
(Orig. Complainant)
Mr. Adwait Manohar with Mr. S.K. Bhoyar, Advocates for
Applicant.
Mr. H.R. Dhumale, A.P.P. for Respondent/State.
....
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3 REVN172-10&ors.odt
Criminal Revision No.175/2010
Ramesh s/o Bapurao Marjiwe,
Aged about 60 years,
R/o Wardha, Tah. & Dist. Wardha. .. APPLICANT
(Orig. Appellant/
Accused)
.. Versus ..
The State of Maharashtra,
through P.S. O. Wardha,
Tah. & Dist. Wardha. .. RESPONDENT
(Orig. Complainant)
Mr. Adwait Manohar with Mr. S.K. Bhoyar, Advocates for
Applicant.
Mr. H.R. Dhumale, A.P.P. for Respondent/State.
....
Criminal Revision No.176/2010
Ramesh s/o Bapurao Marjiwe,
Aged about 60 years,
R/o Wardha, Tah. & Dist. Wardha. .. APPLICANT
(Orig. Appellant/
Accused)
.. Versus ..
The State of Maharashtra,
through P.S. O. Wardha,
Tah. & Dist. Wardha. .. RESPONDENT
(Orig. Complainant)
Mr. Adwait Manohar with Mr. S.K. Bhoyar, Advocates for
Applicant.
Mr. H.R. Dhumale, A.P.P. for Respondent/State.
....
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4 REVN172-10&ors.odt
Criminal Revision No.178/2010
Ramesh s/o Bapurao Marjiwe,
Aged about 60 years,
R/o Wardha, Tah. & Dist. Wardha. .. APPLICANT
(Orig. Appellant/
Accused)
.. Versus ..
The State of Maharashtra,
through P.S. O. Wardha,
Tah. & Dist. Wardha. .. RESPONDENT
(Orig. Complainant)
Mr. Adwait Manohar with Mr. S.K. Bhoyar, Advocates for
Applicant.
Mr. H.R. Dhumale, A.P.P. for Respondent/State.
....
Criminal Revision No.179/2010
Ramesh s/o Bapurao Marjiwe,
Aged about 60 years,
R/o Wardha, Tah. & Dist. Wardha. .. APPLICANT
(Orig. Appellant/
Accused)
.. Versus ..
The State of Maharashtra,
through P.S. O. Wardha,
Tah. & Dist. Wardha. .. RESPONDENT
(Orig. Complainant)
Mr. Adwait Manohar with Mr. S.K. Bhoyar, Advocates for
Applicant.
Mr. H.R. Dhumale, A.P.P. for Respondent/State.
....
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5 REVN172-10&ors.odt
Criminal Revision No.180/2010
Ramesh s/o Bapurao Marjiwe,
Aged about 60 years,
R/o Wardha, Tah. & Dist. Wardha. .. APPLICANT
(Orig. Appellant/
Accused)
.. Versus ..
The State of Maharashtra,
through P.S. O. Wardha,
Tah. & Dist. Wardha. .. RESPONDENT
(Orig. Complainant)
Mr. Adwait Manohar with Mr. S.K. Bhoyar, Advocates for
Applicant.
Mr. H.R. Dhumale, A.P.P. for Respondent/State.
....
CORAM : MANISH PITALE, J.
DATE OF RESERVING JUDGMENT : 13.06.2019
DATE OF PRONOUNCING JUDGMENT : 23.08.2019
JUDGMENT
1. These revision applications have been filed by the original accused challenging concurrent orders passed by the two Courts below holding him guilty under Section 408 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for one year and to pay fine of Rs.5000/-, in default of which, he would suffer simple imprisonment for three months.
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6 REVN172-10&ors.odt
2. Although these are eight revision applications pertaining to conviction and sentence imposed upon the applicant, they pertain to the same controversy concerning alleged defalcation of amounts at the District Marketing Federation Office at Wardha of the Maharashtra State Marketing Federation Ltd. Mumbai. The allegation against the applicant in these cases was that while working as Cashier- cum-Clerk in the office of the District Marketing Federation at Wardha, the applicant had caused defalcation of amounts, thereby committing criminal breach of trust and being a Clerk, he had committed offence under Section 408 of the IPC. Since the allegations against the applicant concerning defalcation of amounts pertained to the period 1980-81 to 1986-87, separate complaints were filed leading to registration of first information reports pertaining to each separate accounting year, resulting in these eight cases against the applicant.
3. According to the prosecution, it was noticed by the office of Federation at Mumbai in the year 1987, for the first time, that from 1980-81 onwards, there had been defalcation of amounts in the District Marketing Federation at Wardha. An inquiry was instituted whereby verification of accounts from the ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 7 REVN172-10&ors.odt years 1976-77 to 1986-87 was carried out and it was found in such inquiry that the applicant in his capacity as Cashier-cum- Clerk in the office of the District Marketing Federation at Wardha, was responsible for the said defalcation of amounts. On the basis of findings of such an inquiry, reports were lodged leading to registration of FIRs against the applicant for the said accounting years and the applicant was charged for offence under Section 408 of the IPC. As the applications in the present case concern similar allegations for the said accounting years, they are being disposed by this common judgment.
4. The prosecution in the present case examined eleven witnesses in support of its case. These included Officers of the District Marketing Federation at Wardha and the Officers of the Federation working in the Head Office at Mumbai. The prosecution witnesses consistently stated that the applicant caused defalcation of amounts by illegally withdrawing amounts from the account of the office of District Marketing Federation at Wardha, purportedly for preparing demand drafts and that for this purpose he also withdrew cash from the cash box of the said office at Wardha. It was claimed that while these amounts illegally withdrawn by the applicant were misappropriated, it was shown as if the said amounts had been ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 8 REVN172-10&ors.odt utilized for preparing demand drafts in connection with purchase of fertilizers from the office of the District Marketing Federation at Wardha by various parties. It is relevant to mention here that the District Marketing Federation Office at Wardha used to sell fertilizers, food grains and other agricultural produce in wholesale to licence holders and Co- operative Societies. It was claimed that such purchasers had actually made payment by demand drafts which were forwarded by the applicant to the Head Office at Mumbai and the cash amounts withdrawn were misappropriated. It was also claimed that the applicant received cash amounts from certain parties to purchase fertilizers and other agricultural produce and that he misappropriated the same, while falsely claiming that such parties had made payments by demand drafts, which were in fact never forwarded to the Head Office at Mumbai.
5. On the basis of evidence of the prosecution witnesses, the Court of Chief Judicial Magistrate, Wardha, held in all the cases against the applicant , on the basis that the accounts in the office of the District Marketing Federation at Wardha were written in the handwriting of the applicant and that the applicant had very skillfully managed to hide his modus operandi from the Accountant and the District ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 9 REVN172-10&ors.odt Marketing Officer at Wardha, as also from the Head Office at Mumbai. By holding that the ingredients of the offence under Section 408 of the IPC were made out, the said Court convicted and sentenced the applicant for offence under Section 408 of the IPC in all the cases, in the aforesaid manner.
6. The appeals filed by the applicant against such conviction and sentence were all dismissed by the Court of Additional Sessions Judge, Wardha, thereby confirming the conviction and sentence imposed on the applicant. This Court, in these revision applications while admitting the same, granted bail to the applicant, taking note of the fact that the applicant had deposited the fine amount.
7. Mr. Adwait Manohar and Mr. S.K. Bhoyar, Advocates for the applicant, submitted that the alleged defalcation of amounts from the years 1980-81 to 1986-87, was detected for the first time in the year 1987. It was submitted that such defalcation of amounts was never noticed through this period by the Head Office of the Federation at Mumbai, despite the fact that there was quarterly reconciliation of statement of accounts in each financial year carried out at the Head Office at Mumbai and also despite annual audit of the accounts of the ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 10 REVN172-10&ors.odt Federation. It was further submitted that the evidence on record, particularly the admissions given in cross-examination by PW5 Suresh Vaidya (Accounts Officer of the Federation at the Head Office at Mumbai) and PW6 Yashwant Mune (District Marketing Officer) as also PW7 Shivdas Patil (Marketing Officer), demonstrated that withdrawal of amounts by cheques from the account of the Federation was not possible without endorsement by the Accountant and the District Marketing Officer. It was also conceded by the said witnesses that the cash amounts in the cash box were verified everyday by the Accountant. It was submitted that such admissions by the crucial witnesses of the prosecution demonstrated that no defalcation was noticed despite the fact that such regular and periodic verifications, reconciliation and audit were being conducted of the accounts of the Federation. It was further submitted that the present case could be said to be a case of some difficulty in reconciliation of accounts, but the applicant could not be held responsible for the same. It was further submitted that the only reason why the Courts below convicted the applicant was that the accounts were allegedly written in the handwriting of the applicant, despite the fact that no handwriting expert was ever examined by the prosecution and no effort was made to prove the aforesaid fact. It was ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 11 REVN172-10&ors.odt submitted that the finding rendered by the Courts below that the applicant had successfully avoided detection of defalcation of amounts, was based on conjectures and surmises and the impugned judgments and orders passed by the two Courts below deserved to be set aside.
8. On the other hand, Mr. H.R. Dhumale, learned Additional Public Prosecutor, submitted that the documents on record were placed before the Courts below in original and such documents clearly revealed direct involvement of the applicant in illegal withdrawal of amounts, not only from the account of the office of District Marketing Federation at Wardha, but also illegal withdrawal of cash amounts from the cash box of the said office. It was submitted that letters sent by the applicant to the Head Office at Mumbai and the record of the accounts in the District Office at Wardha, demonstrated that the entire defalcation of amounts was done by the applicant and that the Courts below had not erred in holding him guilty under Section 408 of the IPC, particularly because the ingredients of the said offence were clearly made out in the present case.
9. Heard learned counsel for the rival parties and perused the material placed on record.
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10. The prosecution case has emphasized upon modus operandi adopted by the applicant for causing defalcation of amounts. It is claimed that the applicant who was working as Cashier-cum-Clerk in the District Marketing Federation at Wardha, was clearly entrusted in that capacity with handling cash and cheques of the Federation which he misappropriated, thereby committing offence under Section 408 of the IPC. There cannot be any doubt about the fact that the applicant was working as Cashier-cum-Clerk in the office of the District Marketing Federation at Wardha. It is also revealed from the record that the alleged misappropriation of amounts starting from the years 1980-81 was first discovered in the year 1987, when it was allegedly found that certain demand drafts sent from the office of the District Marketing Federation at Wardha to the Head Office at Mumbai, were either not received or they were shown to have been issued by a Bank wherein amounts withdrawn from the account of the District Marketing Federation at Wardha had been utilized for preparation of such demand drafts, while in reality such drafts had been prepared and submitted by the purchasers of fertilizers from the District Marketing Federation at Wardha. It the case of the prosecution that such amounts through cheques and cash were withdrawn ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 13 REVN172-10&ors.odt illegally by the applicant and this fact was suppressed by him for the long period between 1980-81 to 1987, thereby successfully misappropriating amounts of the Federation.
11. A perusal of the evidence on record shows that the manner in which the alleged misappropriation of amounts came to light and inquiry was instituted by the Federation, the main witness to prove the guilt of the applicant was PW5 Suresh Vaidya, Accounts Officer of the Federation at its Head Office at Mumbai. It is this person who actually verified all the documents pertaining to the period between 1980-81 and 1986-87, to reach the conclusion that it was only the applicant who was responsible for the said misappropriation of amounts of the District Marketing Federation at Wardha. In the deposition of this witness, in examination-in-chief, copious references have been made to the documents that became part of the inquiry and verification process conducted by the said witnesses and on the basis of such documents, it was repeatedly claimed that it was only the applicant who was responsible for such misappropriation of amounts from the account of the District Marketing Federation at Wardha, as also the cash box of the said Office. It was also claimed that cash amounts deposited by purchasers of fertilizers and other ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 14 REVN172-10&ors.odt agricultural produce with the applicant as the Cashier-cum- Clerk, were misappropriated and it was falsely claimed that demand drafts for such amounts had been sent to the Head Office at Mumbai. Details of amounts withdrawn from the account and cash box of the Federation Office at Wardha were stated in the examination-in-chief of PW5 Suresh Vaidya and references were made to various documents relevant to such claims of illegal withdrawal made by the applicant. It was emphasized by this witness that the accounts of the Federation Office at Wardha were written in the handwriting of the applicant, thereby showing his direct involvement in the misappropriation of amounts.
12. But, cross-examination of the said witness shows that he conceded to the fact that he had no occasion to see the applicant while writing and signing because he had no acquaintance with the applicant at all. It was specifically admitted in the cross-examination by PW5 that the cheque for preparing demand draft to be sent to the Head Office at Mumbai was required to be signed by the Accountant and the Districting Marketing Officer of the Office at Wardha and that without their signatures, no such cheques could be utilized for preparation of demand drafts. The said witness further ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 15 REVN172-10&ors.odt admitted that the amount in the cash box of the Federation Office at Wardha was required to be verified daily by the Accountant and the District Marketing Officer. Apart from this, it was also conceded that there was quarterly reconciliation of the accounts carried out by the District Head and the same was submitted to the Head Office at Mumbai. The annual audit of the accounts of the Federation was also admitted. It was stated by the said witness in cross-examination that entries in the account registers maintained in the office at Wardha were tallied with the entries in the registers maintained in the Head Office at Mumbai, but the registers maintained in the Head Office at Mumbai or their extracts were not placed on record. A specific admission was given by the said witness that it was the responsibility of the Accountant and the District Marketing Officer in the office at Wardha to submit accounts every year with the Head Office at Mumbai.
13. The other crucial witness for the prosecution was PW6 Yashwant Mune (District Marketing Officer) in the office at Wardha during the relevant period. Although in the examination-in-chief it was stated by the said witness that the applicant in his capacity as the Cashier used to deal with various transactions, including collecting demand drafts and ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 16 REVN172-10&ors.odt issuing receipts and that the preparation of demand drafts was to be done through cheques of the Federation, it was conceded in cross-examination that the signatures of either the Accountant or the District Marketing Officer was a must for obtaining a demand draft. As regards the claim that there were certain persons who had issued demand drafts, in respect of which the applicant had illegally withdrawn amounts from the account of the Federation Office and the cash box, it was conceded that the said witness could not even tell the names of such persons. There was no question, therefore, of the prosecution examining such persons to prove its case against the applicant. In cross-examination, the said witness also conceded that the Cashier, Accountant and Head of the concerned section of the District Office were required to carry account register to the Head Office at Mumbai and further that the said witness was the supervising authority of the Accountant and the Cashier. Despite this, it was conceded that even the Auditor never came across any defalcation of amounts.
14. The next witness PW7 Shivdas Patil was a Marketing Officer and this witness conceded that the cheque issued from the District Office at Wardha for making demand drafts used to ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 17 REVN172-10&ors.odt bear his signature and that of the Accountant. He also conceded that he used to verify the accounts everyday and that despite such verification, the alleged defalcation was never revealed.
15. Considering the fact that the aforesaid three witnesses were the main witnesses to support the prosecution case, it needs to be examined as to whether the evidence of these witnesses, read along with the evidence of the other witnesses and the documentary material on record, was sufficient to prove the guilt of the applicant. A perusal of the judgments and orders passed by the Court of Chief Judicial Magistrate shows that after taking into consideration the evidence and material on record, the said Court has mainly held against the applicant for the reason that the accounts were allegedly written in the handwriting of the applicant, although admittedly they were signed by the Accountant and the District Marketing Officer. It is then held by the said Court that the applicant skillfully managed all the accounts of the Federation and that he ensured that the defalcation in the account books and the credit and debit entries was never discovered by the Head Office at Mumbai or even in the process of verification and reconciliation of accounts and ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 18 REVN172-10&ors.odt annual audit of the accounts.
16. Similarly the Court of Additional Sessions Judge while dismissing the appeals filed by the applicant held that vouchers, receipts and accounts were proved to have been written in the handwriting of the applicant, which were also signed by him and that this was sufficient to bring home the guilt of the applicant. It is noted that although the signatures of the Accountant and the District Marketing Officer were also present on the said account, but much emphasis was placed on the fact that the accounts were written in the handwriting of the applicant. This appears to be the reason for confirmation of conviction of the applicant in all these cases.
17. A proper analysis of the evidence and material on record reveals that the witnesses for the prosecution, particularly star witnesses PW5, PW6 and PW7 conceded to the fact that such withdrawals from the account of the Federation Office at Wardha, as also from the cash box, were not at all possible without endorsement and verification by the Accountant as well as by the District Marketing Officer of the said office at Wardha. The applicant as the Cashier-cum-Clerk would be required to put up such cheques and proposals for ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 19 REVN172-10&ors.odt withdrawal, which were admittedly required to be verified and examined by the Accountant and the District Marketing Officer before demand drafts were prepared from the account of the Federation Office at Wardha. It is also admitted by these witnesses that signatures of the Accountant and the District Marketing Officer were very much present on such cheques and account statements as also verification of the cash box of the Federation Office at Wardha. In such a situation, it is difficult to understand as to how the alleged misappropriation of amounts was being carried out by the applicant alone, year after year in the Federation Office at Wardha.
18. The main ground for the two Courts below to hold that the applicant was guilty in the present case was that the accounts of the Federation Office at Wardha were allegedly written in the handwriting of the applicant. It is this factor which has weighed heavily for the two Courts below in holding that even if the signatures of the Accountant and the District Marketing Officer were present on the accounts of the office at Wardha, since the said accounts were allegedly written in the handwriting of the applicant, he alone was guilty for misappropriation of amounts. It is an admitted position that no effort was made by the prosecution to prove that the said ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 20 REVN172-10&ors.odt accounts were indeed written in the handwriting of the applicant. No handwriting expert was examined and, therefore, it appears to be an erroneous approach adopted by the two Courts below to link the applicant with the misappropriation of amounts solely on the basis that the accounts were allegedly written in his handwriting. Despite the fact that the Accountant and the District Marketing Officer admitted that they had signed and verified such accounts and such cheques utilized for preparation of demand drafts in the Federation Office at Wardha, no cognizance of the same was taken and it was held that the applicant alone was responsible for misappropriation of amounts.
19. It has also come on record that there was verification of accounts daily by the Accountant and the District Marketing Officer. The cash box was verified daily by the Accountant. The quarterly reconciliation statements were sent by the Federation Office at Wardha to the Head Office at Mumbai, for which account registers were carried physically to the Head Office at Mumbai and further that the annual audit of the accounts was undertaken. In this situation, it cannot be held that the misappropriation of amounts was not discovered through the maze of the verifications, reconciliation and auditing for years ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 21 REVN172-10&ors.odt together and that the applicant alone was carrying out misappropriation of the amounts of the Federation Office at Wardha. The finding rendered by the Court of Chief Judicial Magistrate that the applicant "skillfully" managed to avoid detection of such misappropriation of amounts is based on no evidence to support the same. In fact, admissions given in cross-examination by PW5, PW6 and PW7, go to show that there was no way in which the applicant could have got away with such misappropriation of amounts. This, coupled with the fact that the prosecution did not even examine the purchasers of fertilizers and other agricultural produce to prove its case, further shows that the two Courts below committed a grave error in rendering findings of guilt against the applicant, purely based on conjectures and surmises.
20. The applicant in his statement recorded under Section 313 of the Cr.P.C. has specifically stated that he was falsely implicated and that he had no right to withdraw the amounts from the bank account of the Federation Office at Wardha. This is clearly supported by the specific admissions given by the prosecution witnesses in their cross-examination, which was completely ignored by the two Courts below while holding against the applicant. It is also relevant that the ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 22 REVN172-10&ors.odt alleged misappropriation of amounts was first discovered in the year 1987, while the incidents allegedly pertained to the years 1980-81 onwards. In this context, there appears to be substance in the contention raised on behalf of the applicant that there could have been a serious error in accounting between the Head Office of Federation at Mumbai and the office of the District Marketing Federation at Wardha. In any case, it was for the prosecution to have proved with cogent evidence on record that the applicant was responsible for such misappropriation of amounts.
21. Although, this Court is aware that in revisional jurisdiction the scope to interfere with concurrent findings rendered by the two Courts below is limited, but when it is found that the findings rendered by the two Courts below are not supported by the evidence on record and there is a grave error committed by the Courts below, such jurisdiction can certainly be exercised in favour of the applicant.
22. In view of the above, this Court finds that the concurrent judgments and orders passed by the two Courts below in all these cases, holding the applicant guilty under Section 408 of the IPC, are unsustainable, being based on ::: Uploaded on - 23/08/2019 ::: Downloaded on - 24/08/2019 04:38:43 ::: 23 REVN172-10&ors.odt conjectures and surmises, without cogent evidence to support the case of the prosecution. Therefore, all these revision applications are allowed and the judgments and orders passed by the two Courts below against the applicant, are quashed and set aside and the applicant is acquitted in all the cases. Consequently, the bail bonds executed by the applicant stand discharged. The fine amount, if any, paid, be refunded to the applicant, after the appeal period is over.
(Manish Pitale, J. ) ...
halwai/p.s.
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