Madhya Pradesh High Court
The State Of Madhya Pradesh vs Rizwan Khan on 8 July, 2021
Equivalent citations: AIRONLINE 2021 MP 989
Author: Anand Pathak
Bench: Anand Pathak
1 M.Cr.C.No.9166/2021
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
JUSTICE SHEEL NAGU
&
JUSTICE ANAND PATHAK
MISCELLANEOUS CRIMINAL CASE NO.9166/2021
State of Madhya Pradesh
Versus
Rizwan Khan
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Shri A.K. Nirankari, learned Public Prosecutor for the applicant/State
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ORDER
{Passed on 8th day of July, 2021} Per Justice Anand Pathak, J.:
1. This is an application by State seeking leave to appeal under Section 378 (3) of the Code of Criminal Procedure, 1973 against the judgment dated 12-05-2020 passed by Fifth Additional Sessions Judge, Guna whereby the respondent/accused -Rizwan Khan has been acquitted by the trial Court in S.T. No.92/2017 for offence under Sections 420, 467, 468, 471,406 of IPC.
2. As per the case of prosecution, on 02-07-2015, in-charge Branch Manager (Smt. Mamta Agrawal) of Zila Sahakari Kendriya Bank Maryadit, Guna submitted a written complaint to the concerned Police Station alleging therein that Prathmik 2 M.Cr.C.No.9166/2021 Krishi Shakh Sahakari Sanstha through Abhishek Sen submitted a written request for release of 5 ton of DAP urea to the tune of Rs.1,25,600/-. In furtherance of the said request, Bank prepared a Release Order bearing No.H-87380 dated 02-07-2015 and Demand Draft (Bankers Cheque) bearing No.008307 of Rs.1,23,318.25 in the name of Abhishek Sen, Manager of the Committee - Prathmik Krishi Shakh Sahakari Sanstha. On the same day, Abhishek Sen told to the Bank that since he is going to attend the programme in Collectorate, Guna therefore, the requisite documents be handed over to his man Rizwan Khan (transporter). Those documents (Release Order and Demand Draft) were handed over to the respondent/accused Rizwan Khan by Computer Operator of the Bank -Ompal. Thereafter when Marketing Organization (foi.ku la?k), Guna which had released the urea, submitted the said Demand Draft and Release Order at the Head Office Guna for encashment. At that time, it was found that in those documents there was some overwriting and interpolation at the places of amount and quantity of urea as in place of Rs.1,23,389.75, Rs.3,68,389.75, in place of 5 tons, 15 tons and in place of 100 bags, 300 bags have been mentioned.
3. On the said complaint, FIR was registered at Crime No.602/2015 Ex-P/20 against the respondent/accused
-transporter. Statements of concerned witnesses were taken and 3 M.Cr.C.No.9166/2021 after due investigation, charge-sheet was filed before the competent Court of law and then case was committed to the Sessions Court, Guna.
4. Before the trial Court, core points for consideration were whether the accused cheated and dishonestly induced Store Keeper of Kendriya Sahkari Vipran Sangh and procured 15 tons urea in place of 5 tons and whether the accused forged/interpolated the requisite documents prepared for procuring the urea and committed criminal breach of trust. After considering the relevant documents and evidence in this regard, trial Court acquitted the respondents/accused. Therefore, this leave to appeal has been preferred along with appeal memo so as to challenge the order of acquittal.
5. It is the submission of learned counsel for the applicant/State that Brij Mohan Tripathi Branch Manager, Zila Sahakari Kendriya Bank (PW-1), Mamta Agrawal In-charge Branch Manager (PW-2), Ompal Singh Computer Operator (PW-4), Abhishek Sen Manager, Prathmik Sahkari Samiti, Pagara (PW-3), Satrajeet Singh Store Keeper (PW-23), Rambabu peon (PW-6), Phool Singh Porter (PW-8) are the material prosecution witnesses and they supported the case of prosecution that respondent by forging the document procured 15 tons urea in place of 5 tons. Matter pertains to interpolation in the documents which is categorically proved by the prosecution 4 M.Cr.C.No.9166/2021 through their witnesses and documentary evidence. Ompal Singh (PW-4) categorically deposed that he handed over the release order and DD to the respondent for release of 5 tons urea costing Rs.1,23,389/- but those documents were interpolated and in place of 5, 15 tons has been written and in place of Rs.1,23,389/-, Rs.3,68,389/- has been written and procured the urea three times higher on the basis of those forged and interpolated documents.
6. It is further submitted that respondent was the only person in whose possession those documents were placed and he by forging those documents procured much more quantity of DAP urea. Witnesses from Cooperative Bank, Cooperative Society and Marketing Organization supported the case of prosecution and categorically deposed that it was the respondent who forged the documents by making interpolation and procured additional urea from the Marketing Organization. Hence, the trial Court committed grave error in acquitting the respondent. Other material prosecution witnesses have also supported the story of prosecution. Thus, applicant/State prayed that the trial Court erred in recording acquittal in favour of respondent accused and caused illegality.
7. Heard counsel for the applicant/State and record perused.
8. Through this application applicant/State is seeking leave to appeal. The case in hand pertains to forgery and interpolation 5 M.Cr.C.No.9166/2021 in documents. Admittedly, respondent is an illiterate person and it is alleged against him that he made some interpolations in Release Order and Demand Draft. For the purpose of proving those interpolations, prosecution did not examine any handwriting expert. Interpolations made in the documents
-Release Order and Demand Draft Ex-D/1 and D/2 are very clear despite that on the basis of those interpolated documents, urea has been released by the Store Keeper Satrajeet Singh (PW-23). From a prudent person specially a Government servant, it is not expected that he shall release the goods on the basis of such interpolated documents. From perusal of book of delivery memos of concerned year (2013-14), it is reflected that over the delivery memos signature of receiver of goods is not available, only signature of the person who delivered the goods were available. Thus, in absence of signature or thumb impression of respondent over the delivery memo, it cannot be said that he has procured 15 tons DAP urea in place of 5 tons.
9. Abhishek Sen (PW-3) in para 10 of his examination deposed that they used to keep the signatured Release Order in advance, therefore, the documentary evidence -delivery memo No.444546 Ex-P/26 which is having signature of respondent is of no help to the prosecution and on the basis of this evidence, it is not proved that respondent procured 15 tons urea in place of 5 tons particularly when there is signature of Abhishek Sen 6 M.Cr.C.No.9166/2021 (PW-3) over Release Order in the capacity of receiver and no alleged additionally procured urea has been recovered from the possession of respondent.
10. Since role of Store Keeper Satrajeet Singh (PW-23) was found dubious by the trial Court, therefore, he was again called for examination by the trial Court but he died and on the basis of report submitted by Police Station Kotwali Guna he has been declared dead vide order dated 13-03-2020. On the basis of ocular and documentary evidence produced by the prosecution and defence, role of Abhishek Sen (PW-3) and Satrajeet Singh (PW-23) has been found to be doubtful by the trial Court. Thus, the trial Court did not commit any error in reaching to the conclusion that prosecution failed to prove its case against the respondent accused beyond reasonable doubts.
11. It is oft repeated that graver the charge is, greater should be the proof required, to bring home the analogy that till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing the accused does not arise. Trial Court has rightly appreciated the necessary contours of the controversy and thereafter passed a reasoned judgment recording acquittal in favour of accused person.
12. It is settled principle of law that if the trial Court after due appreciation of the evidence comes to the conclusion about the 7 M.Cr.C.No.9166/2021 finding of acquittal then normally if the finding is not perverse, this should not be interfered with by the Appellate Court. For this, reliance can be placed on the decision of the Hon'ble Apex Court in the case of Chandrappa vs. State of Karnataka 2007 AIR SCW 1850, wherein the Hon'ble Apex Court laid down the legal principles to entertain the appeal against acquittal and held as under:-
"39. From the above decisions, in our considered view, the following general principles regarding powers of 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 question 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 8 M.Cr.C.No.9166/2021 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 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".
13. In the case of Gamini Bala Koteswara Rao v. State of Andhra Pradesh AIR 2010 SC 589, wherein it is observed as under:-
"It is open to the High Court to re-appreciate the evidence and conclusions drawn by the trial Court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" to mean "against the weight of evidence".
14. Trial Court has considered all the aspects in detail and after considering all the material evidence in this regard found the case of prosecution as doubtful. The Hon'ble Apex Court in the case of K. Prakashan Vs. P.K.Surenderan (2008) 1 SCC 258 and T. Subramanian v. State of Tamil Nadu (2006) 1 SCC 9 M.Cr.C.No.9166/2021 401 held that if two views are possible and one view is taken by the trial Court after due appreciation of evidence including the demeanor of witnesses then unless sheer perversity or illegality crept in to the judgment of trial Court scope of interference in appeal is limited.
15. Considering the same, it appears that no case for interference is made out. Therefore, leave is declined and accordingly the application is hereby dismissed. Judgment dated 12-05-2020 of trial Court stands affirmed.
16. Copy of this order be sent to the trial Court for information.
(Sheel Nagu) (Anand Pathak)
Judge Judge
Anil* 08/07/2021 08/07/2021
ANIL Digitally signed by ANIL KUMAR
CHAURASIYA
KUMAR
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474001,
CHAURASIY st=Madhya Pradesh,
2.5.4.20=8512f40a1a9eaa50b6802d068b5 1dae27e84c266b09d283f0799e67cdc7df5 A 0f, cn=ANIL KUMAR CHAURASIYA Date: 2021.07.10 07:59:17 -07'00'