Gujarat High Court
State Of Gujarat vs Kiritsinh Mahobatsinh Brahmbhatt & 4 on 23 January, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/CR.A/648/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 648 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
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1 Whether Reporters of Local Papers YES
may be allowed to see the
judgment ?
2 To be referred to the Reporter or YES
not ?
3 Whether their Lordships wish to see NO
the fair copy of the judgment ?
4 Whether this case involves a
substantial question of law as to
the interpretation of the NO
Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to NO
the civil judge ?
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STATE OF GUJARAT....Appellant(s)
Versus
KIRITSINH MAHOBATSINH BRAHMBHATT & 4....Respondent(s)
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Appearance:
MS MONALI BHATT APP for the Appellant(s) No. 1
MR ARPIT A KAPADIA for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2 5
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 23/01/2014
ORAL JUDGMENT
1. The present Appeal is directed against the judgment and order delivered by the Learned Special Judge, Vadodara in Special Case No.9/1999 Page 1 of 25 R/CR.A/648/2000 JUDGMENT dated 11.04.2000 recording acquittal of the accused for the offence under Sections 387 and 114 of the Indian Penal Code and under Section 7 of the Prevention of Corruption Act on the grounds stated in the memo of appeal inter alia that the court below has erred in not relying upon the evidence of Shri V.M. Gaur and Shri J.J. Desai, who had investigated the matter. It is also contended that the court below has erred in coming to a conclusion the evidence of witnesses like Samir Patel and Ramesh Patel are not reliable and also erred in not believing the evidence of the complainant and one Adil Contractor on the ground that their evidence are contrary to the statements recorded of other prosecution witnesses.
2. The facts of the case briefly summarized are as follows:
2.1 The accused no.1 is said have visited the place of incident, Faramji compound, where the complainant and one Adil Contractor were discussing about the project of the land. It is alleged that the accused no.1 accompanied by other accused has threatened Adil Contractor that either 10% of the project or Page 2 of 25 R/CR.A/648/2000 JUDGMENT Rs.10.00 lacs may be given, otherwise, he would be implicated in murder or other serious offence, which led to filing of the complaint.
2.2 On the basis of the aforesaid complaint, Exh.18, the investigation was made, which culminated into the chargesheet and, thereafter into Special Case No.9/1999. 2.3 Thereafter, the Learned Special Judge, Vadodara framed charge at Exh.8 for the alleged offences and proceeded with the trial.
2.4 After hearing the learned APP as well as learned advocate for the accused and on appreciation of the evidence, the Learned Special Judge, Vadodara recorded acquittal of the accused.
3. It is this judgment and order which has been assailed on the ground inter alia that the acquittal of the accused recorded by the learned trial court is erroneously.
4. Learned APP Ms.Monali Bhatt referred to the evidence including the deposition of the complainant, Exh.16 and the deposition of Page 3 of 25 R/CR.A/648/2000 JUDGMENT prosecution witnesses, Adil Contractor, Exh.19, Samirbhai Parshottambhai Patel, Exh.32 and Rameshbhai Chanibhai Patel, Exh.34. Learned APP Ms.Bhatt submitted that the emphasis given with regard to the presence of the accused at the place of incident, Faramji compound with reference to the distance from his office cannot be a ground to be considered in isolation. She submitted that it is possible that a person like the police officer could remain in the office and during the course of visiting and supervising such bandobast could incidentally remain present at other place like the place of incident. She also referred to the evidence and tried to submit that the witnesses have stated about the telephonic call or the bandobast duty, which does not necessarily imply that the accused no.1 could not be present at the place of incident at all. She therefore submitted that the reliance placed by the court below on this aspect is erroneous and on the contrary, if the complaint/FIR at Exh.17 dated 18.08.1998 seems, it lands corroboration to the prosecution witnesses. She further submitted that because other prosecution witnesses are private persons, Page 4 of 25 R/CR.A/648/2000 JUDGMENT they cannot be labeled as interested witnesses merely because they are the Manager of the complainant or the driver or the friend of the complainant. Learned APP Ms.Bhatt submitted that the complainant and one Adil Contractor may be a good friend but it is not a ground to outright reject the testimony of such witness regarding said offence. Learned APP Ms.Bhatt has also submitted that the court below has repeatedly observed that the evidence of the complainant and Adil Contractor is contrary to the depositions of other prosecution witnesses. However, learned APP Ms.Bhatt submitted that there are no contradictions and minor discrepancy in narration or version of the prosecution case would not be a ground to discard the evidence. She submitted that all the prosecution witnesses are consistent about the accused no.1 having demanded 10% of the deal or project or Rs.10.00 lacs and Adil Contractor was put to fear that he may be either killed or he may be involved in criminal case like murder.
Learned APP Ms.Bhatt submitted that it this is the version, which is supported by the prosecution case, however, the court below has committed error Page 5 of 25 R/CR.A/648/2000 JUDGMENT in not appreciating this aspect and has only focused on the distance and the presence of the accused no.1 at the place of incident. She again submitted that it is possible that while receiving phone, the police officer like the accused no.1 in discharge of his duty like bandobast could visit the place of incidence and the trial court has given too much of the important on this aspect ignoring the entire prosecution case, which is in consistent so far as threat given to Adil Contractor. He submitted that Adil Contractor in his deposition at Exh.19 has clearly deposed on this aspect. Further learned APP Ms.Bhatt submitted that delay in lodging the FIR is also explained that he was at Kashmir couple with the fact that they had addressed a letter and, thereafter, when Adil Contractor was reluctant, the complainant is said to have explained and subsequently, the complaint has been lodged. She emphasized that Adil Contractor in his deposition has stated that he was afraid and, therefore, he was reluctant to lodge the complaint.
5. Learned APP Ms.Bhatt submitted that the observation made by the court below discarding the Page 6 of 25 R/CR.A/648/2000 JUDGMENT evidence of Adil Contractor as interested witness is erroneous and such approach is contrary to the settled legal position. In support of her submission, she has referred and relied upon the judgment of the Hon'ble Apex Court in case of Ram Kishan & Ors. Vs. State of U.P., reported (2005) 9 SCC 736 and emphasized the observation made in para nos.5, 6 and 9. Similarly, she has referred to the judgment of the Hon'ble Apex Court in case of Dani Singh & Ors. Vs. State of Bihar, reported in (2004) 13 SCC 203. Learned APP Ms.Bhatt has referred to the provision of Section 387 of the Indian Penal Code, which refers to the offence of extortion. However, she submitted that though the offence of extortion may not have been completed, the offence under Section 387 of the Indian Penal Code would be attracted. She pointedly referred to the ingredients and submitted that the victim has stated that he was put to fear of life. She has also referred to the judgments cited by learned counsel, Shri Kapdia in case of Sidi Badshah Kalu Jahangir Vs. State of Gujarat, reported in 1993 (2) GLH 75. Learned APP has further submitted that minor discrepancy cannot be a ground to discard Page 7 of 25 R/CR.A/648/2000 JUDGMENT the entire prosecution case. In support of her submission, she has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Murlidhar & Ors. Vs. State of Rajasthan, reported in (2005) 11 SCC 133. She submitted that when the eyewitness and the victim have clearly deposed about the incident and what transpires, same could not have been brushed aside.
6. Learned APP Ms.Bhatt therefore submitted that the approach of the court below is erroneous and there is no evidence with regard to animosity with the then Police Commissioner as nothing has been brought on record. She submitted that note which has been referred to is only a broad guidelines by the higher officer to the subordinates. Learned APP Ms.Bhatt has also referred to the deposition of Investigating Officer and submitted that in his deposition, he has made reference to the statement of other persons, which cannot be a direct evidence and, therefore, would not be admissible in evidence. She referred to Section 60 of the Evidence Act and also referred to the judgment of the Hon'ble Apex Court in case of Ram Kishan (supra), reported in (2005) 9 SCC 736 in support Page 8 of 25 R/CR.A/648/2000 JUDGMENT of her submission. Learned APP Ms.Bhatt has also submitted that though while deciding the acquittal appeals, the high court may be slow but there is no embargo on the high court to reappreciate and reconsider the material and evidence in the interest of justice. She has referred to and relied upon the judgment of the Hon'ble Apex Court in case of State of Andhra Pradesh Vs. M. Madhusudhan Rao, reported in (2008) 15 SCC 582 and emphasized the observations made therein.
7. Learned counsel, Shri Arpit Kapadia for the accused no.1 has referred to the deposition of the complainant viz., Gopalbhai Karshanbhai Patel, Exh.16 and also deposition of Adil Contractor, Exh.19. He has also referred to the evidence of Samirbhai Parshottambhai Patel, Exh.32 and Rameshbhai Chanibhai Patel, Exh.34. He submitted that testimonies of these witnesses have not been accepted, for which, detailed discussion has been made by the court below. He emphasized that time and presence of the accused no.1 has much relevance as to whether he might be at the place in view of his duty for bandobast of Ganesh visharjan. He therefore submitted that it requires Page 9 of 25 R/CR.A/648/2000 JUDGMENT a close scrutiny. He has also referred to the deposition of one Jigar Abdulyakub Vora, Exh.57, who is driver of Adil Contractor and also deposition of Shri V.M. Gaur, Exh.58 and Shri J.J. Desai, Exh.61, who are the investigating officers. Learned counsel, Shri Kapadia submitted that it has been specifically recorded that the accused no.1 was present in DCB Police Station between 08:30 and 10:30 on 04.09.1999. He submitted that during this time, there is evidence that he had received a telephonic calls from Rajput, who was at Rajasthan for his official work. He submitted that similarly the witness has also stated that other telephone was also received. Again it is stated that due to traffic, it takes almost an hour to reach the place of incident, Faramji compound from the DCB Police Station. Learned counsel, Shri Kapadia therefore submitted that even the prosecution witness no.2, Adil Contractor himself has stated about this aspect that it takes about almost 5060 minutes. He also submitted that as it transpires from the evidence on record, if a person or police personnel, who is given a point for bandobast, is Page 10 of 25 R/CR.A/648/2000 JUDGMENT not found then, there would be a communication, however, there is no such communication for the accused no.1 or other accused. Learned counsel, Shri Kapadia also submitted that delay in lodging the complaint is also required to be considered. For that purpose, he referred to the communication/letter dated 9th September, 1998 from Swati Land Developers and submitted that thereafter, the complaint/FIR is registered on 3rd October, 1998, for which, there is no explanation. Learned counsel, Shri Kapadia has also referred to the papers with much emphasis with regard to the background and the past history about the litigation where the accused no.1 was sought to be transferred and, thereafter, he was suspended. Learned counsel, Shri Kapadia therefore submitted that the court below while passing an order, Exh.5 has also recorded this aspect. Learned counsel, Shri Kapadia pointedly referred to this aspect and submitted that the complaint has been filed at the behest of the then Police Commissioner, Shri Kuldip Sharma. Learned counsel, Shri Kapadia submitted that the judgment has discussed this aspect and on appreciation of evidence, the court Page 11 of 25 R/CR.A/648/2000 JUDGMENT below has recorded acquittal, which is just and proper. Learned counsel, Shri Kapadia also referred to Exh.17 and submitted that the complaint was sent through post otherwise, it would have been inwarded and entry would have been made in the inward register. He submitted that no such entry has been made and, therefore, it cannot be presumed that there is any such letter or communication. He also referred to one advise or note issued by the then Police Commissioner and the reply given by the accused no.1 regarding the imputation. Learned counsel, Shri Kapadia submitted that though note is only indicating about normal guideline by the superior officer, it was hinted at the accused no.1, who was working as Inspector of DCB and, therefore, he has given reply. Learned counsel, Shri Kapadia submitted that show cause notice was issued by the Commissioner, which itself suggest about the animosity or grudge against the accused no.1. Learned counsel, Shri Kapadia therefore submitted that on the aspect of time and the presence of the accused no.1 at the place of incident and particularly when there is positive evidence Page 12 of 25 R/CR.A/648/2000 JUDGMENT recorded by the prosecution witnesses themselves that the accused no.1 was at DCB Police Station between 08:30 and 11:30 at the same day, it raises a doubt about the genuineness about the complaint. Therefore learned counsel, Shri Kapadia submitted that the court below has considered this aspect at length and on appreciation of evidence has recorded acquittal, which cannot be said to be perverse and, therefore, the present appeal may not be entertained.
8. Learned counsel, Shri Kapadia has submitted that even if two views are possible, the high court would decline to disturb the finding and conclusion arrived at by the court below. In support of this submissions, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Joginder Singh & Anr. Vs. State of Haryana, reported in (2010) 15 SCC 407 and submitted that as observed, the parameters for reversal of the acquittal are well settled. He emphasized the observations, "The jurisdiction of the appellate court in dealing with an appeal, against an order of acquittal is circumscribed by the limitation that no interference is to be Page 13 of 25 R/CR.A/648/2000 JUDGMENT made with the order of acquittal unless the apprach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to he characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous."
9. Learned counsel, Shri Kapadia has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Murugesan S/o Muthu & Ors. Vs. State Through Inspector of Police, reported in (2012) 10 SCC 383 and emphasized the observations, "In other words, the reversal the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. It must be emphasized that the inhibition to interfere must be perceived only in a situation where the view taken by the trial court is not a possible view. The Page 14 of 25 R/CR.A/648/2000 JUDGMENT use of the expression "possible view" is conscious and not without good reasons. The said expression is in contradistinction to expressions such as "erroneous view" or "wrong view" which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible."
10. Learned counsel, Shri Kapadia therefore submitted that the court below is required to consider whether the approach and correctness of conclusion is possible on the basis of the material and evidence.
11. Learned counsel, Shri Kapadia submitted that in fact the offence would not be attracted as there is no entrustment of any property. He referred to the definition of the offence under Section 383 of the Indian Penal Code and submitted that the offence would not be attracted unless the act is completed. He has referred to and relied upon the judgment of the high court in case of Sidi Badshah Kalu Jahangir (supra) (Para No.10) and submitted that "As could be seen from the aforesaid ingredients, the delivery of the property or valuable security by the person put in fear is essential to complete the offence of extortion." Page 15 of 25
R/CR.A/648/2000 JUDGMENT
12. Learned counsel, Shri Kapadia therefore submitted that in view of this evidence, when there is no evidence regarding the completion of the offence, it would not be attracted the alleged offences under Section 383 of the Indian Penal Code regarding the extortion of the judgment recorded is just and proper.
13. In view of these rival submissions, it is required to be considered whether the impugned judgment and order recording acquittal calls for any interference.
14. As it transpires from the material and evidence, the submissions with regard to the appreciation of evidence and the possible view is required to be considered. Though while considering the submissions and the findings recorded, it appears that the court below has given different version for the purpose of recording acquittal. The main defence by the accused is that due to animosity or strained relation with Kuldip Sharma, the then Commissioner, the complaint has been registered at his instance to cause harassment. However, the court below has referring to the transfer of the accused and the proceeding bearing Civil Suit Page 16 of 25 R/CR.A/648/2000 JUDGMENT No.314/1998 before the Civil Court at Vadodara, discussed based on the allegations regarding strained relations of the accused with Jaspalsingh, local leader. The charges leveled against the respondentaccused are for extortion under Section 383 of the Indian Penal Code read with alleged offences under the Prevention of Corruption Act. The offence under Section 383 of the Indian Penal Code would require the entrustment and the delivery of the property or valuable security. Therefore as observed in the judgment in case of Sidi Badshah Kalu Jahangir (supra), necessary ingredients for the offence under Section 383 of the Indian Penal Code may not be fulfilled. However as submitted by learned APP Ms.Bhatt referring to the provision of Section 385 of the Indian Penal Code which provides for offence of putting a person under fear of injury in order to commit extortion, which is lesser offence, the ingredients have been analyzed in the said judgment. Therefore again whether the ingredients for the offence under Section 385 of the Indian Penal Code are fulfilled or not is required to be examined in background of the Page 17 of 25 R/CR.A/648/2000 JUDGMENT material and evidence. For that purpose, on one hand, there is testimony of the complainant, his friend, Adil Contractor and other two persons, who are stated to be interested persons as Manager and driver of the complainant and on the other hand, the witnesses, who are examined by the prosecution including the Investigating Officer have not corroborated the evidence of other witnesses. A closer scrutiny of evidence therefore would reveal that even if the evidence of the complainant and his Manager and driver are discarded altogether, the version put forward by them has to be tested in background of other evidence. Main emphasis given by learned counsel, Shri Kapadia with regard to the possibility of the presence of the accused at the scene of offence in light of the evidence and the fact that there was a Ganesh visarjan require a close scrutiny. Though submissions may not be readily accepted that one could not remain present at another place merely because he was on a duty, at the same time, it cannot be overlooked that the prosecution witnesses including I.O., Shri V.M. Gaur, Exh.58, Shri J.J. Desai, Exh.61 and Devshankar Dhama, Exh.50 have categorically Page 18 of 25 R/CR.A/648/2000 JUDGMENT stated about the presence of the accused in the office of D.C.B. Police Station couple with the fact that there is a distance which takes about 5060 minutes to reach the place of incident leaves a possible doubt or lends support to the probable version given by the trial court regarding the presence of the accused no.1.
15. Moreover, the Investigating Officer, Shri Gaur though seems to have collected police diary of other coaccused and police personnel like accused, Mulchand Mangaldas, the Investigating Officer has not collected the log book of vehicle of DCB Police Station, which could have reflected the movement of the vehicle and the officer incharge of the vehicle like accused no.1, Shri Gaur, who in his examination, Exh.58 has admitted that there is no evidence as to which jeep was used by the accused and no evidence has been obtained. Had the logbook of the DCB Police Station been scrutinized with reference to the statement of the driver, it could have given some clue. Again as stated by the Investigating Officer in his testimony, the driver of the accused no.1 is not examined. Again very basis or foundation of Page 19 of 25 R/CR.A/648/2000 JUDGMENT the alleged threat for 10% share or amount by putting Adil into fear would require further corroboration. It leaves a doubt as to whether the accused no.1 had any such power or authority, particularly, when he was not the Investigating Officer in another case, which was investigated regarding murder. Therefore, this theory or suggestion by the prosecution that Adil Contractor was threatened that he would be implicated in serious offence by the accused no.1, is not supported by any evidence when he was not investigating officer in any such case.
16. Further, the deposition of investigating officer, Shri Gaur, wherein he has stated based on the statements recorded by him during the investigation suggesting that the witnesses have not supported the prosecution case require consideration. Though the submissions have been made by learned APP relying upon Section 60 of the Evidence Act read with the observations made by the Hon'ble Apex Court in case of Ram Kishan (supra) that it would not be admissible, same cannot be accepted and is devoid of merits. In the facts of the present case, the Investigating Officer in his deposition Page 20 of 25 R/CR.A/648/2000 JUDGMENT has made a statement on oath with regard to the course of investigation and what was revealed during his investigation. Therefore the facts are totally different from the judgment which has been pressed into service by learned APP, which does not support the contentions raised. Therefore, it would not be of any help and the submissions made by learned APP cannot be accepted. Moreover, the version or deposition of the Investigating Officer, Shri Gaur, Exh.58 is also corroborated by the deposition of other witnesses, Shri Dhamal, Exh.50, Shri Desai, Exh.61 and also Adil Contractor, Exh.19.
17. Therefore, the moot question which is required to be considered, is whether the impugned judgment and order can be characterized as perverse or whether it could be said that the approach of the court below in appreciating the evidence and recording the findings and conclusion is such, which could not have been possibly arrived at by any court acting reasonably and judiciously. The principles are well accepted by the Hon'ble Apex Court in a judgment in case of M. Madhusudhan Rao (supra) wherein it has been has observed, Page 21 of 25 R/CR.A/648/2000 JUDGMENT "There is no embargo on the appellate court to review, reappreciate or reconsider the evidence upon which the order of acquittal is founded. Yet, generally, the order of acquittal is not interfered with because the presumption of innocence, which is otherwise available to an accused under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a court of law, gets further reinforced and strengthened by his acquittal. It is also trite that if two views are possible on the evidence adduced in the case and the one favourable to the accused has been taken by the trial court, it should not be disturbed. Nevertheless, where the approach of the lower court in considering the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to the characterised as perverse, then, to prevent miscarriage of justice, the appellate court is obliged to interfere."
18. The aforesaid aspect has been very aptly considered in earlier judgment of the Hon'ble Apex Court in case of Chandrappa & Ors. Vs. State of Karnataka, reported in (2007) 4 SCC 415 and the Page 22 of 25 R/CR.A/648/2000 JUDGMENT Hon'ble Apex Court has considered and laid down the principles regarding the powers of the appellate court while dealing with the appeal against the order of acquittal, which reads as under : "(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 Page 23 of 25 R/CR.A/648/2000 JUDGMENT 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."
19. Therefore keeping in mind the provision of Section 378 of the Code of Criminal Procedure, 1973, though there may not be any embargo on the power and there could be a justification in a given case to upset or reversal of acquittal, normally the high court would be slow in reversing such decision of the trial court. It has been consistently held and observed that merely because other view is possible or when it is possible that other view could have been taken, does not necessarily justify the interference or substitution. The judgment of the Hon'ble Apex Page 24 of 25 R/CR.A/648/2000 JUDGMENT Court in a judgment in case of Murugesan S/o Muthu (supra) again reiterating the same principles has made observation, "It must be emphasized that the inhibition to interfere must be perceived only in a situation where the view taken by the trial court is not a possible view. The use of the expression "possible view" is conscious and not without good reasons. The said expression is in contradistinction to expressions such as "erroneous view" or "wrong view" which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible."
20. Therefore, considering the aforesaid settled legal position, the impugned judgment and order does not call for any interference nor it can be said that view taken by the court below on appreciation of evidence is not plausible view.
21. In the fact of the case, the present appeal therefore deserves to be dismissed and accordingly stands dismissed.
Sd/ (RAJESH H.SHUKLA, J.) Gautam Page 25 of 25