Himachal Pradesh High Court
State Of Himachal Pradesh vs Purshotam Lal Gupta & Ors on 22 December, 2022
Bench: Sabina, Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Criminal Appeal No. 160 of 2009
Decided on: 22nd December, 2022
.
_____________________________________________________
State of Himachal Pradesh
.....Appellant
Versus
Purshotam Lal Gupta & Ors
.....Respondents
______________________________________________________
Coram
The Hon'ble Ms. Justice Sabina, Judge
The Hon'ble Mr. Justice Sushil Kukreja, Judge
1
Whether approved for reporting?
_____________________________________________________
For the Appellant: Mr. Ashwani Sharma, Additional
Advocate General.
For respondent No.1: Mr. N.S. Chandel, Senior Advocate
with Mr. Pranav Sharma, Advocate.
For respondent No. 2, 4
16 & 17 : Mr. J.S. Bhogal, Senior Advocate with
Mr. Satish Sharma, Advocate.
For respondent No.6: Mr. Sunny Modgil, Advocate.
For respondent No. 7 to 10 Mr. Ankit Dhiman, Advocate.
For respondent No. 11 : Mr. Aman Sood, Advocate.
For respondents No. 12
& 13: Mr. Hamender Singh Chandel,
Advocate.
1
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 23/12/2022 20:33:04 :::CIS
2
Sabina, Judge (Oral)
Appellant-State has filed the appeal challenging the .
judgment dated 16th August, 2007 passed by the trial Court, whereby respondents were acquitted of the charges framed against them.
2. Learned Additional Advocate General has submitted that the trial Court has erred in ordering the acquittal of the respondents. In fact, the respondents in connivance with each other had caused huge loss to the State. The sintex water storage tanks had been sold to the State at a much higher rate.
3. Mr. J.S. Bhogal, learned Senior Counsel, assisted by Mr. Satish Sharma, Advocate has submitted that the trial court has rightly ordered the acquittal of the accused as it was not established on record that the water storage tanks had been sold at a higher rate. Moreover, in arbitration proceedings, specific issue was dealt by this Court with regard to the fact as to whether the contract had been obtained by way of cheating, misrepresentation, fraud and undue influence. This Court vide order dated 24th July, 1997 Ext.D-6 had held that there was no material on record to show that initially the contract was void, being obtained by cheating, misrepresentation or undue influence.
4. Learned counsel for respondent No.6 has submitted that the trial Court has rightly held that the land had not been sold by accused No.4 to father of accused No.6 at a throw away price.
::: Downloaded on - 23/12/2022 20:33:04 :::CIS 35. Learned counsel for respondents No.12 and 13 has submitted that the trial Court has rightly held that there was no material .
on record to suggest that the said respondents had manipulated the letter dated 30th March, 1985.
6. Learned counsel for respondent No.11 has submitted that the trial Court after appreciating the evidence on record has rightly held that the said respondent was never aware of the tenders invited by the Horticulture Department. There was no meeting convened between respondent No.11 and accused Purshottam Lal Gupta or his representatives. The prosecution has examined PW-76 Rajeev Sharma to establish that a meeting between the said accused persons but he could not produce any record as he had already left service of Hotel 'Asia The Dawn'.
7. Prosecution story, in brief, is that in the year 1985-86 accused P.C. Gupta was posted Senior Technical Officer in the office of Controller of Stores, Shimla. Accused Purshotam Lal Gupta contacted accused P.C. Gupta for supply of Sintex water storage tanks of the capacity of 500 liters and 1000 liters. As per the prosecution story, the said accused persons in conspiracy with each other initiated sale of property belonging to accused Smt. Krishna Gupta, wife of accused Purshotam Lal Gupta to accused Inder Chand Gupta, father of accused P.C. Gupta, at a throw away price. In view of this sale deed, accused ::: Downloaded on - 23/12/2022 20:33:04 :::CIS 4 Purshotam Lal Gupta managed to get tenders for supply of sintex water storage tanks at a higher rate. There was no agenda for tender of water .
storage tanks, but later accused P.C. Gupta introduced the same with a view to help his co-accused.
8. After completion of investigation and other formalities, challan was presented against the respondents-accused persons.
9. Learned trial Court, vide judgment dated 16th August, 2007 ordered the acquittal of the respondents. Hence, the present appeal by the State.
10. We have heard the learned counsel for the parties and have carefully gone through the record available on the file.
11. Ext. DX is the copy of judgment dated 24th July, 1997 passed by this Court, in Civil Suit No. 80/83, titled M/s Gupta Pipes vs. State of H.P. with OMP Nos. 342 and 343 of 2019. The plaintiff had filed the suit for making the award passed by the Arbitrator as rule of the Court. Objections were preferred by the State as well as the plaintiff.
Issue No.3 was framed on the basis of objections raised by the State to the effect as to whether the initial contract was void as alleged. It was the case of the State that the contract between the parties was void ab initio as the same was based on cheating, misrepresentation, fraud and undue influence. While dealing with the said issue, this Court held that the evidence on record did not show that initially contract was obtained ::: Downloaded on - 23/12/2022 20:33:04 :::CIS 5 by the plaintiff as a result of fraud, misrepresentation, cheating or undue influence. None of the witnesses examined by the State had stated in .
this regard. Hence, this issue was decided against the State. As a result, the objection-petition filed by the State was dismissed. The objection-
petition filed by the plaintiff was also dismissed and the award dated 30th April, 1993 passed by the Arbitrator was made 'rule of the Court'. Thus, in civil proceedings finding was given by this Court that the contract in question was not a result of fraud or misrepresentation. Admittedly, the judgment Ext. DX has attained finality. Hence, learned trial Court rightly based reliance, inter-alia, on the said decision, while coming to the conclusion that the prosecution had failed to prove its case.
12. So far as the allegation of the prosecution to the effect that sale deed with regard to land had been executed by accused Krishna Gupta, wife of accused Purshotam Lal Gupta in favour of accused Inder Chand Gupta, father of accused P.C. Gupta at a throw away price is concerned, the learned trial Court after appreciating the evidence on record has given the finding that the said allegation was not proved on record. It has been noticed by the trial Court that it was admitted by PW-
22 Sham Lal that average sale price was Rs.76.95 paisa and the average sale price mentioned in Ext. PW-22/A as Rs. 237.06 paisa per square yard, was not the average price of the land in the area for 5 years average price. He also stated that he had calculated the average ::: Downloaded on - 23/12/2022 20:33:04 :::CIS 6 price of the land as mentioned in Ext. PW-22/A at the asking of the police. He also stated that the plot in question was situated on a slop .
and was an uncultivated and rocky land. It has also been noticed by the learned trial Court that as per PW-98 Gurbax Singh, accused P.C. Gupta and I.C. Gupta were residing separately. In view of the material on record, thus, the learned trial Court has rightly come to the conclusion that the prosecution had failed to establish that accused Krishna Gupta, wife of accused Purshotam Lal Gupta had sold land to accused I.C. Gupta at a throw away price.
13. It was the case of the prosecution that for supply of sintex water storage tanks, only two tenders were submitted i.e. one by the company of accused Purshotam Lal Gupta and the other by M/s National Steel Works, Dharampur, owned by the mother of accused Purshotam Lal Gupta. It was the case of the prosecution that the matter was taken up for consideration only with regard to rates for 45 litre barrels and since only one party had participated for supply of 45 litre barrels and even the said party was unable to supply 45 liter barrels.
Consequently, the said offer was not taken in consideration. Thus, as only one party had participated to supply 45 litre barrels and even that party also could not supply the same, then it was probable that only two tenders were received for supply of 500 litres and 1000 litres water storage tanks. It was the case of the prosecution that wide publicity had ::: Downloaded on - 23/12/2022 20:33:04 :::CIS 7 been given for inviting tenders for purchase of water storage tanks of the capacity of 500 liters and 1000 liters, but any such advertisement had .
not been proved on record. Thus, the prosecution has failed to establish that the advertisement had been issued only vis-à-vis 45 litre barrels only and not for water storage tanks.
14. It was also the case of prosecution that accused P.C. Gupta had made change in the notings. However, in this regard, it was noticed by the trial Court that as per Ext.PW-34/A and Ext. PW-34/B, note-
sheets were duly signed by R.C. Singh (Quality Control Officer), Department of Horticulture. The said observation of the learned Trial Court is correct as per record. Hence, from the note-sheets Ext. PW-
34/A and Ext. PW-34/B, it was duly established that the tenders for HDPE tanks and water storage tanks have been taken in consideration.
15. It was also the prosecution story that the rates given by accused P.C. Gupta for supply of water storage tanks were high.
However, it has been noticed by learned trial Court that the witnesses examined by the prosecution in this regard i.e. PW-19, PW-20, PW-21, PW-24 and PW-25, had not supported the prosecution case during trial.
So far as PW-73, Arbind Sharma is concerned, he had deposed that he was running the business under the name and style of M/s Agro-Deal and was the Manager of the firm. He had sent letter to Director Horticulture in response to the tender dated 18th March, 1983 for supply ::: Downloaded on - 23/12/2022 20:33:04 :::CIS 8 of HDPE tanks. They had not received the supply order for the sintex water storage tanks. He proved letter Ext. PW-73/A and clarification of .
rates quoted in Ext. PW-7/D. As per Ext. PW-73/A, it was confirmed that the rate of 500 liters water storage tank was Rs.1,500/- and rate of 1000 litres was Rs.2,500/-, exclusive of local sale tax and surcharge, which was approximately 11% in total of the price. However, the rates mentioned by PW-73 relate to LDPE tanks and not HDPE tanks, which were ultimately offered by accused Purshotam Lal Gupta. So far as PW-
73 is concerned, he has not quoted the rates for HDPE material as is evident from Ext. PW-7/D and PW-73/A. However, the prosecution had failed to examine any official of Sintex Company to establish the rates of the water storage tanks in question. In the above background, learned trial Court rightly held that it could not be said that with certainty that the rates charged by accused Purshotam Lal Gupta were on a higher side.
16. It has also been held by the learned Trial Court after appreciating the evidence on record that there was no material available on record to suggest that accused I.S. Azad and accused Satya Dogra have manipulated the letter dated 30th March, 1985, as none from Amar Nath Khandelwal agencies Private Limited had been examined during trial.
17. It has also been noticed by the learned Trial Court that as per evidence on record, appellant K.C. Azad was never informed about ::: Downloaded on - 23/12/2022 20:33:04 :::CIS 9 the tenders invited by the Horticulture Department. It could not be established during trial that any meeting had taken place between .
accused K.C. Azad and accused Purshotam Lal Gupta. So far as the statement of PW-33 Rakesh Mahajan is concerned, he has deposed that he was working as Accountant with 'Asia The Dawn Shimla'. As per record, R.N. Kashyap had stayed in the hotel, but in his cross-
examination, he deposed that he was not personally known to R.N. Kashyap. He had joined as an Accountant on 16th July, 1985. The original of the documents which were marked by him were available in the office of the Hotel. PW-76 Rajiv Sharma, who was Assistant Mananger in Hotel "Asia the Dawn' in the year 1985 had not brought the record. In this view of the matter, learned trial Court has rightly held that any meeting suggested by the prosecution between accused K.C. Azad and accused Purshotam Lal Gupta was not established on record.
18. Thus, in the present case, learned trial Court after appreciating the evidence on record rightly came to the conclusion that the prosecution had failed to prove its case against the accused persons beyond the shadow of reasonable doubts. Learned Additional Advocate General has failed to point out any misreading of evidence on record by the trial Court.
19. Moreover, it is settled preposition of law that where, in an appeal against acquittal, if two views are possible, the view taken by the ::: Downloaded on - 23/12/2022 20:33:04 :::CIS 10 trial Court, is liable to be upheld. It has been held so by Hon'ble the Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002(1) .
RCR (Criminal) 748.
20. Similarly, in Mrinal Das & others v. State of Tripura, (2011) 9 Supreme Court Cases 479, the Hon'ble Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"13) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court.
If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal.
14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The ::: Downloaded on - 23/12/2022 20:33:04 :::CIS 11 appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the .
State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."
21. Keeping in view the totality of circumstances discussed above, we are of the opinion that the view taken by the learned trial Court in the present case is a possible one.
22. Hence, no ground for interference is made out.
Accordingly, the appeal is dismissed.
Pending application(s), if any, also stand disposed of.
(Sabina) Judge (Sushil Kukreja ) Judge December 22, 2022 (himani) ::: Downloaded on - 23/12/2022 20:33:04 :::CIS