State Of U.P. vs S.P. Singh And Another on 20 September, 2024

[Cites 23, Cited by 0]

Allahabad High Court

State Of U.P. vs S.P. Singh And Another on 20 September, 2024

1- At the very outset, it is apt to delineate here that this is a bunch of Government Appeals, with the prayer to grant leave to file these appeals, on behalf of the appellant / State, under section 378(4) Cr.P.C. arising out of various criminal cases, bearing separate case numbers, but common crime number no. 112 of 1995, P.S. Nawabad, District Jhansi, with almost identical facts and circumstances and decided on the basis of common evidence, by learned trial court (the court of CJM, Jhansi) by judgment and order dated 07.01.2005. A brief description of these appeals is being scribed here, as under:-

SL. No. Govt Appeal No. Respondent/accused Case No. in trial court Crime no.

i ii iii iv v

1.

4147 of 2012 S.P. Singh &M.C Arya 4637-B/01 112/1995

2. 4360 of 2012 S.P. Singh &M.C Arya 4637-C/01 112/1995

3. 2241 of 2005 S.P. Singh &M.C Arya 4637-D/01 112/1995

4. 2240 of 2005 S.P. Singh &M.C Arya 4637-F/01 112/1995

5. 2318 of 2005 S.P. Singh &M.C Arya 4637-G/01 112/1995

6. 2317 of 2005 S.P. Singh &M.C Arya 4637-H/01 112/1995

7. 2319 of 2005 S.P. Singh &M.C Arya 4637-I/01 112/1995

8. 2926 of 2005 S.P. Singh &M.C Arya 4637-L/01 112/1995

9. 2911 of 2005 S.P. Singh &M.C Arya 4637-M/01 112/1995

10. 2871 of 2005 S.P. Singh &M.C Arya 4637-N/01 112/1995

11. 2908 of 2005 S.P. Singh &M.C Arya 4637-L/01 112/1995 i ii iii iv v

12. 2851 of 2005 S.P. Singh &M.C Arya 4637-Q/01 112/1995

13. 1183 of 2005 S.P. Singh &M.C Arya 4637-T/01 112/1995 14 3018 of 2005 S.P.Singh & M.C. Arya 4637-W/01 112/1995 15 3019 of 2005 S.P. Singh &M.C Arya 4637-X/01 112/1995

16. 3017 of 2005 S.P. Singh &M.C Arya 4637-Y/01 112/1995

17. 3933 of 2013 S.P. Singh &M.C Arya 4637-R/01 112/1995

18. D- 203 of 2005 S.P. Singh &M.C Arya 4637-.../01 112/1995

19..

D- 204 of 2005 S.P. Singh &M.C Arya 4637-U/01 112/1995

20. D- 181 of 2005 S.P. Singh &M.C Arya 4637-V/01 112/1995

21. D- 191 of 2005 S.P. Singh &M.C Arya 4637-E/01 112/1995

22. D- 185 of 2005 S.P. Singh &M.C Arya 4637-J/01 112/1995

23. D-183 of 2005 S.P. Singh &M. C.Arya 4637-O/01 112/1995

24. D- 184 of 2005 S.P. Singh &M.C Arya 4637-S/01 112/1995 During pendency of these appeals, in some of them, this Court has passed orders for connecting and propose to decide them by passing common judgement and order. In view of the above, for the sake of brevity and convenience, after being connected together all these Govt Appeals, are being decided by a common judgment, considering Govt. Appeal no. 4147 of 2012, to be leading case.

2. All the above stated appeals are directed against the impugned common judgment dated 07.01.2005, passed by the learned trial court, whereby the learned CJM acquitted accused/ respondent no. 1- S.P. Singh of all the charges, levelled against him. However, accused/ respondent no. 2- M.C. Arya is convicted under Sections 406, 420, 468, 477-A I.P.C. and sentenced him 02 years RI for the offence under Sections 406 I.P.C. and 04 years R.I. for the each offence under Sections 420, 468, 477-A IPC separately and a fine of Rs. 10,000/-. Out of which half of the amount will go to complainant u/s 357 Cr.P.C., as compensation, and remaining half was directed to be deposited in favour of state. In default of this rest half amount (to be deposited in favour of state), he has to undergo an additional imprisonment for six months. Respondent no. 2 M.C. Arya was acquitted of the charges under Sections 409, 467 and 471 I.P.C. All the sentences were directed to run concurrently. To be precise operative part of impugned judgment and order dated 07.01.2005 may be extracted as follows:-

आदेश "अभियुक्त एस. पी. सिंह को अंतर्गत धारा 406, 409, 420, 467, 468, 471, 477-A IPC सन्देह का लाभ देते हुए दोषमुक्त किया जाता है तथा अभियुक्त एम.सी.आर्या को धारा 409, 467, 471 IPC के अंतर्गत दोषमुक्त करते हुए, अंतर्गत धारा 406 दो वर्ष व 420, 468, 477-A IPC चार-चार वर्ष कठोर कारावास से दंडित किया जाता है तथा 10,000/- रुपये के अर्थदंड से दंडित किया जाता है जिसमें आधी धनराशी परिवादी अंतर्गत धारा 357 दण्ड-प्रक्रिया-संहिता बतौर मुआवजा पाने का अधिकारी होगा । आधी धनराशी अर्थदंड के रूप में राजकीय कोष में जमा होगी अर्थदंड जो राजकीय कोष में जमा होना है के ना अदा करने पर छह महीने का अतिरिक्त कारावास होगा सभी कारावास से संबंधित सजाएं एक साथ चलेंगी क्योंकि सभी अन्य मामले एक ही अपराध संख्या से संबंधित हैं। अत: ये भी स्पष्ट किया जाता है कि यह सजाएं उक्त अपराध संख्या के सभी मामलो में एक साथ count की जाएगी।अभियुक्त एस. पी. सिंह जमानत पर है। उसके जमानत नामें निरस्त किये जाते हैं तथा उसके जामीनॉन को उन्मोचित किया जाता है। अभियुक्त एम.सी. आर्या को निर्णय की प्रति नि:शुल्क, नियमानुसार, तुरंत उपलब्ध कराई जाए।"

3. Learned AGA, representing the appellant/ State, has submitted that during the pendency of these appeals, accused/ respondent no.-1 S.P. Singh has expired. The material available on record, substantiate this fact. The record transpires that the learned C.J.M. Jhansi, has informed the court vide his letter dated 03.10.2012, mentioning the police report, prepared after due inquiry and verification of the factum of death of respondent no.-1 S. P. Singh, submitted to him, that accused/ respondent No.-1, S.P. Singh has passed away on 07.01.2010. The said letter is available on the record of Govt. Appeal D- 181 of 2005. Thus, during the pendency of these appeals, accused / respondent no.-1, S. P. Singh has expired. Therefore, all the appeals against accused / respondent no.-1, S. P. Singh, stand abated. Now, accused / respondent no.-2, M C Arya, remains the only surviving respondent before us.

4. At this juncture, it would be imperative and apt to delineate the entire factual matrix of the case, including the appreciation of evidence seeking special leave to appeal.

5. The prosecution case, in a short compass, is that the complainant Udit Kohli, a partner of the firm Auto Centre, Jhansi, engaged in the business of auto-mobiles, lodged a written complaint, Ext Ka-3, at P.S. Nawabad, District Jhansi, unfolding the fact that his firm have a C.C. Limit Account in Union Bank of India, Sadar Bazar, Jhansi since July, 1987. The complainant/ firm used to deposit and draw money, time to time, from this account, as per its requirement. In the course of time, he smell some discrepancies and irregularities in his account and apprehended that some fraud or cheating is being played by the Branch Manager S.P. Singh and accountant M.C. Arya in respect of his account. He immediately directed his Chartered Accountant (C.A.), U.N. Modi to enquire into the matter and to check and scrutinize the account thoroughly. He provided him the copies of all the relevant documents, in his possession, for the purpose and also requested the bank to permit access to him to peruse his account and to provide all the relevant documents for inquiry and scrutiny, but the bank paid no heed to his requests. Despite persistent efforts, record was not produced by the bank, rather they adopted dilatory and stalling tactics to swing the matter on one pretext or the other. He was highly upset as having got no efficacious remedy for redressal of his grievance. Meanwhile his C.A. submitted a report dated 19.06.1993, apprehending that a sum of about Rs. 39,28,139./21 has been misappropriated from the account of his firm, in some unauthorized way. This amount has not been withdrawn by the complainant or any person authorized by him, in this behalf. He immediately informed the bank and prayed to get conducted an inquiry and seal all the relevant papers for necessary action. He approached the Hon'ble High Court Allahabad also, in this regard. Hon'ble High Court vide its order dated 14.12.1993, passed in Writ Petition No.- NILL of 1993 directed the respondent Union Bank of India (U.B.I.), inter alia, to file inquiry report and results of investigation. Above stated bank officials after manipulation in the record, misappropriated Rs. about 40/- lacs from his account by cheating and playing fraud. Due to lack of desired action by the bank officials, he lodged a written complaint, Ext Ka-3, at the P.S. Nawabad, with respect to embezzlement/ usurpation and misappropriation of aforesaid amount.

6. On the basis of the written complaint entries were made in to kaimi G.D. and Chik FIR and Case Crime No. 112 of 1995, P.S. Nawabad, against Branch Manager S.P. Singh and Accountant M.C. Arya, was registered under Section 420 and 406 I.P.C. Initial investigation of the case was entrusted to S.I. Jagat Pal Singh(PW-5).

7. Investigating officer swung into motion. I.O. collected credible and clinching material showing complicity of the accused/ opposite parties in the aforesaid crime. After due investigation, the I.O. submitted 26 charge sheets separately under Section 406, 420, 409, 467, 468, 471, 477-A against accused/ respondent S.P. Singh and M.C. Arya, in the court of CJM, Jhansi. It is pertinent to mentioned that out of 26 appeals, the record of the criminal case no. 4637-A of 2001 and 4637- K of 2001 and concerned Govt. appeals, is not before us.

8. The learned CJM, Jhansi took cognizance of the case. Explained substance of the offence under sections 406, 409, 420, 467, 468, 471,477-A I.P.C. to the accused. After hearing learned District Govt. Counsel (D.G.C.)- (Criminal) and learned counsel for the accused in extenso, he framed charges against accused/ respondents under Sections 406, 420, 409, 467, 468, 471, 477-A I.P.C. The accused abjured the charges, pleaded not guilty and claimed to be tried.

9. In order to bring guilt home, prosecution besides, documentary evidence, adduced and examined following witnesses in ocular evidence:-

Sl. No. PW No Name of witnesses Remarks i ii iii iv 1 PW-1 Udit Kohli Informant/complainant 2 PW-2 Ali Hasan H.M. 3 PW-3 U.N. Modi, C.A. 4 PW-4 Durga Prasad Part I.O.

5 PW-5 Jagatpal Singh, I.O.

6 PW-6 Durga Prasad Part I.O. Recalled 7 PW-7 Bhagwan Agarwal Branch Manager UBI 8 PW-8 Madan Mohan Ex. Chief Manger UBI 9 PW-9 Roop Singh Rajawat Bank employee

10. On conclusion of prosecution evidence respondent/ accused were confronted with the evidence on record adduced by prosecution to explain it and put-forward his defence. They were examined on 18.08.2004 and 21.12.2004, under Section 313 Cr.P.C., wherein they renounced prosecution evidence. Accused/ respondent M.C. Arya has stated that he has been falsely implicated due to departmental politics. He has not committed any offence. He has neither played any fraud, misappropriation of money, nor made any cheating in complainant's account. He is innocent.

11. The accused/ respondent submitted written arguments and examined following defence witnesses, in ocular evidence:-

Sl. No. D.W. Nos.

Name of Witnesses Remarks i ii iii iv 1 DW-1 S.P. Khare Employee I. T. department 2 DW-2 V.P. Saxena Manager NII, Insurance Co.

3 DW-3 Kailash Gautam Manager CB of India 4 DW-4 Jai Prakash Saxena Sr. clerk S.T. department 5 DW-5 Mahendra Singh Br. Manager S. E. Corp.

6 DW-6 Anil Arora C.A. 7 DW-7 Ansar Ahmad Employee U.B.I.

12. Learned trial court (the court of CJM, Jhansi), after hearing both the parties in extenso and after marathon analysis and scrutiny of the entire evidence on record, has acquitted the accused/ respondent no. 1 S.P. Singh of all the charges levelled against him, but convicted accused/ respondent no. 2 M.C. Arya under Sections 406, 420, 468, 477-A IPC and sentenced him as stated herein above but acquitted him of charges under Sections 409, 467, 471 IPC, by the impugned judgement and order dated 07.01.2005.

13. Being dissatisfied and aggrieved by the conviction and sentence order dated 07.01.2005, passed by the trial court (of CJM, Jhansi), accused/ respondent no. 2 M. C. Arya filed Criminal Appeals pertaining to all the 24 cases, as Appeal Nos. 07 of 2005 to 31 of 2005, before the learned Sessions Judge, Jhansi, who in turn transferred them to the court of Special Judge E. C. Act/ A.D.J., Jhansi for disposal. Learned Appellate court (Court of Sessions) after hearing the appellant and D.G.C. (Criminal), scrutinized and evaluated the entire evidence on record and eventually dismissed all the appeals by a common judgment and order dated 04.11.2006 and affirmed the order of conviction and sentence passed by the learned trial court dated 07.01.2005.

14. It is worth noticeable here that State, or accused/ surviving respondent no. 2 has not preferred any further appeal/ revision or any other remedy, against the judgement dated 04.11.2006 passed by learned appellate Sessions Court, at High Court or in any other forum, rather State/ appellant proffered present appeals against the acquittal order dated 07.01.2005 passed by learned Trial court (CJM, Jhansi), in respect of acquittal of respondent no. 1 S.P. Singh of all the charges levelled against him and acquittal of respondent no. 2 M.C. Arya of charge under Section 409, 467 and 471 I.P.C. It may be mentioned that none of the present government appeals, questions the appellate court's (Court of Sessions) order dated 04.11.2006.

15. Heard learned A.G.A. for the State/ appellant and perused the record.

16. Learned A.G.A. on behalf of the State/ appellant, assailing the impugned judgment, contended that the impugned acquittal order dated 07.01.2005 rendered by learned CJM, Jhansi, is erroneous and suffers from legal and factual vulnerability and perversity, in as much as, the learned trial court (Court of CJM, Jhansi) mis-scrutinized, misconstrued and misappreciated, the entire evidence of prosecution, in acquitting the accused/ opposite parties and drew adverse inference. Learned A.G.A. further submitted that the order of the trial court acquitting the accused/ respondent no. 2 of the charges under Section 409, 467, 471 I.P.C. is against the weight of evidence on record. Learned trial court has convicted one accused under Section 406 IPC whereas on the same evidence, it has acquitted him under Section 409 IPC, as such the judgment and order of acquittal, is wholly illegal and deserves to be set aside and reversed, to convict him for the offences charge under Section 409, 467, 471 I.P.C. also. He audaciously urged that the learned Magistrate ignored the overwhelming and material evidence adduced by witnesses as such the impugned acquittal order dated 07.01.2005 is based on conjectures, surmises and apparent perverse finding. Hence, the same requires to be interfered with and for such reasons special leave to appeal needs to be granted so as to allow the State / appellant to assail the impugned acquittal order dated 07.01.2005 through the related appeal under the provisions of Section 378 (4) Cr.P.C.

17. In view of the peculiar facts, circumstances and evidence adduced and argument advanced by the learned A.G.A., before scrutinizing and evaluating the arguments on behalf of the appellant, on the touchstone of the evidence on the record, it is pertinent to scan at a glance, the legal scenario regarding the scope and Jurisdiction of the High Court/ Appellate court's in respect of interference, pertaining to the issue of judgment of acquittal, passed by the trial court in appeal or revision.

18. Hon'ble Apex Court in a catena of decision has dealt with scope of interference in an appeal or revision against acquittal. There is a plethora of case law on this proposition and we need not burden the judgement by referring all those decisions. Our purpose would be served by referring some of the reasoned and latest pronouncement. The court has laid down the principles governing the scope of interference by high court in appeals filed by the state challenging acquittal of the accused recorded by the trial court.

19 -(i) - In, State of Karnataka V/s. K. Gopalkrishna reported in (2005) 9 SCC 291, Hon'ble Supreme Court, while dealing with an appeal against acquittal, observed as under:

"In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal."

(ii)- The Apex Court in Chandrappa v. State of Karnataka, 2007 (4) SCC 415, dealing with an appeal against acquittal has considered the scope of power and jurisdiction of appellate court to interfere in a virdict of accquittal by the trial court, held that an appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. The Court curled out five principles in this behalf. We would like to reproduce them hereunder:-

"39 (1)- The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. (2)- The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court. (3)- The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses. (4)- The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. (5)- If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction- the High Courts/appellate courts, must rule in favour of the accused.

(iii)- In Sudershan Kumar V/s. State of Himachal (2014) 15 SCC 666 the Hon'ble Supreme Court observed thus;-

"31. It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State which is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to.

(iv)- In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal. The court held as follows:-

"26 .....the High Court should not have re-appreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities....."

(v)- In Sanjeev v. State of H.P. (2022) 6 SCC 294, the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:

"7. It is well settled that:

7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka, (Anwar Ali v. State of H.P.) (2020) 10 SCC 166).

7.2. Atley v. State of U.P. AIR 1955 SC 807) With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced.

7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal. ( Sambasivan v. State of Kerala (1998) 5 SCC 412.

(vi)- Further, in the case of H. D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581, this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal, under Section 378 of CrPC as follows: -

"8.1. The acquittal of the accused further strengthens the presumption of innocence;

8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."

(vii)- Yet, in an other very recent verdict dated 12.02.2024 in Criminal Appeal No 1162 of 2011, Mallappa and others Vs. State of Karnataka [2024] 2 S.C.R. 288, the Apex Court held as under:-

"24.... It is the cardinal principle of criminal Jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concertized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal."

25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re- appreciate or re-visit the evidence on record. However, the power of the High Court to re-appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.

26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The 'two-views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by re-appreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law......''

(viii)- It will be beneficial to delineate the principles enunciated by Hon'ble Apex Court in Mallappa (Supra) in para 36 of the judgment regarding deciding an appeal against acquittal. The supreme Court has summarized the principles as under---

"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as under:-

(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;

(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."

20. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court, and in favour of the accused has, to be exercised within the four corners of the following broad principles:-

(a)-      That the judgment of acquittal suffers from patent perversity;
 

 
               (b)-     That the same is based on a misreading/omission to consider 
 
                           material evidence on record;
 

 
                (c)-     That no two reasonable views are possible and only the view 
 
                    consistent with the guilt of the accused is possible from the             	         evidence available on record.

21. The appellate Court, in order to interfere with the judgment of acquittal, would have to record pertinent findings on the above factors, if it is inclined to reverse the judgment of acquittal rendered by the trial Court. In view of the legal scenario, discussed above, let us examine and testify the contentions of the learned A.G.A., on the anvil of the relevant evidence, referred by him.

22. Prosecution has examined PW-1, Udit Kohali, who is the complainant. He is one of the partners in the firm, Auto-Center, Jhansi, engaged in the business of sale and delivery of auto-mobiles to government employees, as well as private customers. He has deposed that the firm has C.C. Limit Account in Union Bank of India, Branch Sadar Bazar, Jhansi. The complainant used to credit and debit money from time to time as desired and required from this account. His mother and he himself was the authorised to draw the amount from the bank. Except them, none other was authorised to draw the amount from the bank in their signatures. At the relevant time, one accused S.P. Singh was the Branch Manager and accused M.C. Arya, was the Accountant, in the said bank. In June 1993 he suspected that there is some foul play with his bank account. Willing purchaser of a vehicle from his firm after compliance of certain formalities along with the consideration (purchase amount) of the vehicle places his request after receiving the amount the firm delivers the vehicle to the customer. In this process the firm has to get prepared pay order in favour of the firm. The pay order was issued by the bank after the payment of sale amount by way of cheque or cash. There was no other way for this process. In June, 1993 when he apprehended some fraud or cheating in his bank account, he persistently requested the bank officials to provide relevant papers of his account to find out the real fact, whether any discrepancy or irregularity has crept in his account. He appointed a C.A. (PW- 3 U.N. Modi) to enquire, examine and scrutinize his account for the purpose. He repeatedly requested bank to provide access to his account and furnish the relevant papers of his account, but bank did not pay any heed nor co-operated in any way, although he himself has provided all the relevant documents of his account, in his possession, to his C.A. Seeing the inaction and non co-operation of the bank, he also approached to High Court and obtained orders to enquire the matter expeditiously. His C.A. U.N. Modi reported that a sum of amount Rs. about 39,281,39.21/- has been embezzled from his account in an unauthorized way. He further stated that he used to get prepared the pay orders from the bank after the payment of sale amount by way of cheque and sometime in cash. For this he directed the Bank under his signature. During the relevant period of the incident M.C. Arya was dealing with the account of the firm, by misappropriation of the cash payment, debited the sale amount from his account to prepare pay order. The witness further stated that he used to receive pay order amount in advance from the willing customers for which he used to issue the receipt to them. A slip was issued by him for the purpose of getting prepared the pay order duly signed by him. In such cases, accused issued many slips for the purpose and these were signed by the accused M.C. Arya in his writing and signature. He debited the amount from the account of firm and grabbed the cash amount and thus committed breach of trust and fraud and misappropriation. The witness has proved FIR as Ext. Ka-3 by stating that it is his hand writing and his signature. Apart he has proved bank papers delivered to him by the bank vouchers and copy of pay orders, debit voucher and withdrawal voucher etc. as Ext. Ka-29 to Ext Ka- 42. Thus in his examination he has supported prosecution case.

23. PW- 1 Udit Kohli, in his cross examination specifically deposed that he do not remember any instance where he authorized to prepare pay order in any other way except by way of sending cheque or cash. Similarly, he do not remember any instance where he had instructed the bank in writing to issue the pay slip wherein it is mentioned that this amount be debited from the firms account, nor he ever issued any such instruction to prepare the pay order for debiting the amount from his account, by telephone etc. He has also stated that in many of slips shown to him accused M.C. Arya has admittedly signed at the back of the slip, with intention of debiting the amount from the account of the firm. He further averred that bank did not furnish him relevant detail of his account and the accused persons did not mention the cash amount received in any registered maintained by the bank for making such entries. Thus, necessary information was concealed by the accused. While folios of cheques or cash which he used to furnish to the bank was kept in record. All these circumstances, has not been denied or disputed.

24. PW-2 Ali Hasan, is the head moharrir who proved chik FIR Ext ka-7 and kaimi G.D Exta Ka- 7. He has testified that he registered case crime no. 112 of 1995 against S.P. Singh and M.C.Arya. On the basis iof the written report presented by Udit Kohali. Thus he is formal witness who has denied the suggestion , in cross examination, that tehrir was written as per his advise in police station by the complainant.

25. U.N. Modi, PW-3, is the Chartered Accountant, who scrutinized the bank account and other papers furnished by the bank and found that about Rs. 39,28,139.21/- has been misappropriated from the account of the complainant firm. He has also stated that bank has not shown many of the vouchers despite firm's repeated demands. This indicates that the accused who was the accountant of the bank was hiding something about the firm account and concealed the truth from being unevolved. The same was reported by the P.W-3 to the firm and the bank. He proved his audit report as Ext. Ka-12. He has mentioned in his report that there is a difference of a sum of rupees 39,28,139/ 21 paise in the account of the firm. In his cross-examination accused / respondents could not elicit any fact which could be helpful for him.

26. PW-4 S.I. Durga Prasad, is the part I.O of the case. He has also been examined as PW- 6 by recalling him second time.

27. PW-5 Jagatpal Singh (S.I.) is the initial I.O. of the case who sated that he recorded the statement of Ali Hasan under Section 161 Cr.P.C. he has also referred a letter written by him to Bank. He was ill and could not depose any further due to health reason therefore PW-6 PW-4 S.I. Durga Prasad, was recalled as secondary evidence.

28. PW- 4 S.I. Durga Prasad, has conducted further investigation of the case. He has stated that he has recorded statement of the then Bank Manager who has furnished information in writing to him that amount has been debited from the account of the firm without any permission of the account-holder. He has proved it as Ext. Ka- 12 thereafter he recorded the statement of the accused M.C. Arya and other witnesses. He has proved the orders issued by the accused S.P. Singh as Ext. Ka- 16. He has also proved the written information of accused M.C. Arya about his arrest as Ext. Ka- 20 and Ka- 21. In his cross-examination he has stated that he has recorded further statements of the witnesses in order to affirm their previous statements. He has also proved the written tehrir given by Roop Singh Rajawat as Ext. Ka- 14. He travelled various places to record the statements of accused. After collecting evidence strongly indicating complicity of the accused persons in the crime. After thorough investigation reached to the conclusion that pay orders were wrongly prepared, from the account of firm. After thorough investigation he has submitted 26 charge sheets, against accused S.P. Singh and M.C. Arya under Sections 406, 409, 467, 468, 471 and 477-A I.P.C., although initially the case was registered u/s 420 and 406 I.P.C. only.

29. PW-7 Bhagwan Agarwal succeeded S.P. Singh/ respondent no. 1 S.P. Singh (since deceased) as Branch Manager of the Union Bank of India. He has admitted in his deposition that he has not shown vouchers to the I.O. because from 1.1.1988 to 26.7.1988 vouchers have already been shown to the I.O. In his cross-examination he has stated that he has not given 90 vouchers prepared in between 01.01.1988 to 16.07.1988 because these were not debited in bank account.

30. PW-8 Madan Mohan Baldua, who is the Retired Chief Manager of the bank, has proved a letter given to the Union Bank of India, Zonal Office, Lucknow in his signatures. In this letter he has mentioned the facts averred by the Fact Finding Committee. He has stated that the matter is very very old, therefore, he do not remember all the things.

31. PW-9 Roop Singh Rajawat, who was posted in Union Bank of India, Sadar Bazar, Jhansi at relevant time of incident. He has stated that he has furnished all the papers which were known to him to the I.O. Jagat Pal Singh. Theses papers were proved by him as Ext. Ka-22, Ext. Ka-28, Ext. Ka-33, Ext. Ka-40. In his cross examination he stated that he has provided all the papers to the court of CJM Jhansi, which were desired by Ext Ka-28 these papers were not given to I.O. There is no mention that any amount has been debited from the account of the firm without the permission of the account holder. PW-9 is a formal witness, thus, he neither support prosecution, nor to accused.

32. Now, it is apt to delineate defence evidence on record, also.

33. DW-1 S.P. Khare, who was Income Tax Officer. He has served assessment of tax of the firm, from the year 1987, 1988, 1988 to 1989, 1991 to 1992. He has also submitted balance sheets and proved them. The witness was not cross-examined by the complainant.

34. DW-2 B.P. Saxena was the Branch Manager of New India Assurance Company. Who has done Bima Policy of the firm. He stated that premiums of different installments were deposited by the firm through cheque but he do not know from which account the premium amount was debited.

35. DW-3 Kailash Gautam was the Manager of Central Bank of India The witness has produced attested copies of documents for the year 01.01.1988 to 26.07.1990 and proved it as Ext. Kha- 59 and laser files who has not been cross-examined by the complainant.

36. DW-4 Jai Prakash Saxena was the Senior Clerk in the Commercial Department. He has produced tax assessment order of the firm for the year 1987 to 1993 but he failed to produce original of the same.

37. DW- 5 Mahendra Singh was the Branch Manager, Uttar Pradesh State Employees Corporation, Jhansi. He has stated about the process of the purchase and delivery of the vehicle by the firm through mini depot. He has produce material Exhibits 1 to 18, in the form of register and receipts.

38. DW-6 Anil Arora was the Chartered Accountant who has conducted audit of the firm and confirmed audit report. The witness was not subjected to cross-examination.

39. DW-7 Ansar Ahmad Qureshi is the inspector. He stated that he has given a notice to the firm auto centre after inspecting it in the month of July, 1993 and a civil suit no. 122 of 1995 was also instituted. He has produced copies of the suit and verified it. He has also produced debit vouchers, instruction slips of complaint, pay order and proved them pertaining to all the charge sheets.

40. Learned AGA submits that impugned judgment and order of acquittal of respondents, passed by the trial court (CJM Jhansi) dated 07.01.2005 is erroneous and suffers from legal and factual vulnerability and perversity in as much as the learned trail court misscrutinized, misconstrued and misappreciated the entire evidence of prosecution. It has committed gross error in reaching its conclusion. The impugned order of acquittal of respondents is against the weight of evidence on record. It has convicted accused respondent no.-2 under section 406 IPC, where as on the same evidence it has acquitted him under section 409 IPC, it is wholly illegal and deserves to be reversed to convict him under section 409, 467, 471, IPC also. Similarly acquittal of respondent no.-1 S.P. Singh of charges under all the section is not tenable and deserves to be reversed. Therefore, the same requires to be interfered with and for the same reason special leave to appeal, is prayed for.

41. A keen scrutiny of testimonies of PW-1 complainant Udit Kohali, PW-3 C.A. U.N. Modi, PW-4 I.O. Durga Prasad reveal that all these witnesses has supported prosecution version. PW-1 Udit Kohali, very emphatically has deposed that the bank issue the pay order at the, at the request of the complainant firm on a slip signed by complainant and some times on cash payment and some times directed bank to debit the particular and required amount from account of the firm. Accused M. C. Arya, who was dealing with the complainants account in the bank, prepare pay orders for the customers in his hand writing on cash payment by customers. Whenever he was directed to prepare pay order on the cash payment, he instead of mentioning that cash amount in relevant records, debit it from his account, grabbing the paid cash amount. Thus, he misappropriated an amount of Rs. 39,28,139/ and 21 paise, during relevant transaction period, by way of cheating and committing fraud. In June 1993 he suspected that there is some foul play in his account, he tried to verify and scrutinized his apprehension through his C.A. and requested the bank, to permit excess to relevant record pertaining to his account to him / C.A., conduct inquiry in the matter but bank did not pay any heed to his request and tried to conceal the facts. They adopted dilatory and stalling tactics to swing the matter on the one pretext or the other. He also stated that he obtained pay order/ drafts from bank in different ways e.g. signing on back of the debit voucher, by cheque or by cash on obtaining cash amount from its customers. He and his mother were only authorized persons to sign withdrawal or debit pay slips. Thus, Rupees about 40,00,000/- from his bank account were illegally debited. He also confirmed that this amount has been debited illegally by bank officials. As there were many pay slips to debit the amount from account in the hand writing of the accused him self. PW-4 (I.O.) Durga Prasad has collected detailed clinching and credible evidence oral and documentary, which go to prove to prosecution case under sections 406, 420, 468, 477-A IPC only. Nothing has been elicited from the cross examination of witnesses which go against prosecution case or could be beneficial in any way. Rest of the witnesses PW-2 Ali Hasan, PW-5 Jagat Pal Singh, PW-7 Bhgwan Agrwal, PW-8 Madan Mohan Baldua and PW-9 Roop Singh Rajawat has stated that whatever documents were in their hands they have delivered them to the I.O./ C.A.

42. Learned trial court upon the elaborate analysis and appreciation of the entire evidence and material on record, has come to very right conclusion that prosecution has proved charges under sections 406, 420, 468 and 477-A IPC, beyond all reasonable doubts, against accused/ respondent no.-2 M.C. Arya, but it has failed to prove offence under sections 409, 467, 471, IPC against him beyond all reasonable doubts. Hence, in these sections he is acquitted. Again prosecution has failed to prove all the charges leveled against respondent no.-1 S.P. Singh, beyond reasonable shadow of doubts. Hence he was acquitted of all the charges.

43. Since no appeal/ revision etc. has been preferred against the judgment and order dated 07.01.2005 of the trial court and order dated 04.11.2006 passed by the appellate court. Hence, it has become final in respect of acquittal of respondent no. 2, in sections 409, 467 and 471 I.P.C. It evinces that no illegality or perversity has surfaced on the face of impugned acquittal orders. Testimonies of each and every witnesses has been thoroughly and carefully scanned by the learned trial court and after being the satisfied with the factual and legal propositions, as projected in the deposition of witnesses, has arrived at right conclusion. Thus, impugned judgment and order as per according to law and not erroneous in any way and there exist no ground to interfere in the impugned acquittal order.

44. In the circumstances, we find that the view taken by the trial court to acquit the accused persons is a permissible view and merely because a different view could have been taken, cannot be a ground to interfere with the judgment of acquittal. Otherwise also, the accused- appellant- M.C. Arya has served the entire sentence and fine was also deposited for the offence under Sections of I.P.C. in which he has been convicted and sentenced. The Prayer made for grant to leave, to challenge the judgment, is therefore, not tenable.

45. Apart from above, as we have already discussed earlier that these appeals are directed against the acquittal order dated 07.01.2005, passed by the learned trial court (Court of CJM, Jhansi). Even at the cost of repetition, it is imperative to delineate following facts:-

(I)- Accused/ respondent no.-1, S.P. Singh has expired during the pendency of these appeals. Therefore, the present appeals stood abated against him.

(II)- These appeals are instituted against the acquittal order of respondent No.-1, S. P. Singh (since deceased) under all the charges leveled against him and acquittal of respondent No.-2, M. C. Arya of charges under sections 409, 467, 471 IPC, passed by learned trial court (CJM Jhansi) vide its judgment and order dated 07.01.2005. (III)- Noticeable feature of this case is that appellant / state has not instituted any appeal / revision etc against the impugned order of acquittal of the respondents dated 07.01.2005. These appeals challenge the above stated acquittal order dated 07.01.2005, passed by learned trial court. While felt aggrieved by the judgment and order/ of the trial court passed on 07.01.2005 respondent no.-2, M.C. Arya has filed appeal nos. 7 to 31 of 2005, before the Court of Sessions, who by its reasoned and well discussed judgment and order dated 04.11.2006, dismissed all the appeals and affirmed the judgment and order of the learned trial court dated 07.01.2005. (IV)- It is worth mentioning here that State, or surviving respondent no.-2 have not preferred any further appeal/ revision or any other remedy, against the judgment and order of the Special Judge E. C. Act/ ADJ dated 04.11.2006 passed by learned appellate (Sessions Court), at the High Court or any other forum, rather State/ appellant proffered present appeals against the acquittal order dated 07.01.2005 passed by learned trial court (CJM, Jhansi). Accused/ respondent no.-1, S.P. Singh has expired during the pendency of these appeals. Therefore, the present appeals stood abated against him.

(II)- These appeals are instituted against the acquittal order of respondent No.-1, S. P. Singh (since deceased) under all the charges leveled against him and acquittal of respondent No.-2, M. C. Arya of charges under sections 409, 467, 471 IPC, passed by learned trial court (CJM Jhansi) vide its judgment and order dated 07.01.2005. (III)- Noticeable feature of this case is that appellant / state has not instituted any appeal / revision etc against the impugned order of acquittal of the respondents dated 07.01.2005. These appeals challenge the above stated acquittal order dated 07.01.2005, passed by learned trial court. While felt aggrieved by the judgment and order/ of the trial court passed on 07.01.2005 respondent no.-2, M.C. Arya has filed appeal nos. 7 to 31 of 2005, before the Court of Sessions, who by its reasoned and well discussed judgment and order dated 04.11.2006, dismissed all the appeals and affirmed the judgment and orn respect of acquittal of respondent no. 1(since deceased) and acquittal of respondent no. 2 M.C. Arya of charges under Section 409, 468, 471 IPC. (V)- Thus, none of the present government appeals questions the appellate court's (Court of Sessions) order dated 04.11.2006. Therefore, the order dated 04.11.2006 has become final, so far as accused, / including surviving respondent no. 2 M.C. Arya, is concerned. (VI)- The accused / respondent no.2 also did not file any appeal against his conviction. He has served out the entire period of sentence which is evident from the custody certificate dated 21.03.2024, issued by Senior Jail Superintendent, Jhansi. (VII)- In the circumstances, stated above the judgment and order dated 04.11.2006 has attain finality and is binding all the parties. (VIII)- Assailing the acquittal order dated 07.01.2005 passed by the learned Chief Judicial Magistrate Jhansi arising out of Case Crime No. 112 of 1995 under sections 406, 409, 420, 467, 468, 471, 477-A IPC Police Station Nawabad District Jhansi whereby the respondent no.-1 has been acquitted of all the charges levelled against him under sections 406, 409, 420, 467, 468, 471, 477-A IPC, and accused/respondent no.2 (M.C.Arya) has been acquitted of the charges under sections 409, 467, 471 and convicted for the charge under sections 406, 420, 468, 477-A IPC. Felt aggrieved by the conviction order dated 07.01.2005 passed by learned trial court, respondent no.-2 filed criminal appeal nos. 07 of 2005 to 31 of 2005, before the court of Sessions. Learned Sessions Judge E.C. Act/ ADJ vide its judgment and order dated 4.11.2006, has affirm the impugned judgment and order dated 07.01.2005, passed by the trial court (C.J.M. Jhansi), Appellant / state, and respondent no.-2 M.C. Arya has not filed further appeal, revision or review against the judgment dated 04.11.2006 passed by the Special Sessions Judge E.C. Act/ ADJ, in the High Court or any other forum. The complainant who is the informant and aggrieved person, has also not assail the orders passed by the learned trail court as well as Special Judge E.C. Act/ A.D.J. The public prosecutor has also not challenged the orders passed by the learned Magistrate as well as learned Special Judge. Thus, the impugned judgment and order remained unchallenged either by the State or the accused/respondent no.2. Therefore it has attained finality. All this also evinces that no illegality or perversity has surfaced on the face of impugned acquittal order dated 07.01.2005.

46. The prosecution through the instant set of evidence miserably failed to make out any offence under section 409, 467, 471 IPC against the accused respondent no.2. The testimony of each and every witnesses is thoroughly and carefully scanned by the learned trial and appellate courts and on being satisfied with the factual and legal proposition, as projected in the deposition of witnesses, the prosecution could not make out a case against the accused respondent no.2, for granting special leave to appeal for launching proceedings with respect to reversal of conviction under sections 406, 420, 468, 477-A IPC.

47. Considering the aforesaid legal and factual aspect of the case, we are of the view that the trial court was fully justified in acquitting the accused/ respondent no.-2 M.C. Arya of the charges under Sections 409, 467, 471 of IPC and convicting him under sections 406, 420, 463, 477-A, of IPC. By dint of appeal by respondent no.-2, against the judgment and order dated 07.01.2005, passed by learned trial court (CJM court Jhansi), the appellate court has affirmed the acquittal of charge under section 409, 467, 471, IPC by its judgment and order dated 04.11.2006. The order dated 04.11.2006 has attained finality. Consequently, prosecution has failed to made out any ground for interference in the impugned judgment of acquittal under sections 409, 467, 471, IPC. The prosecution through the instant set of evidence miserably failed to make out any offence under section 409, 467 and 471 IPC against the accused respondent no.2. and the present appeal can not be a means to revers the acquittal order, passed by the learned trial court.

48. A through analysis of the entire gamut of facts, circumstances and evidence on record, reveals that Govt Appeal No. D- 203 of 2005, D- 204 of 2005, D- 181 of 2005, D- 191 of 2005, D- 185 of 2005, D-183 of 2005, D- 184 of 2005 the are defective, as they have been filed beyond the period of limitation by 23 days. In view of the above no fruitful purpose will be served to condone such delay after about 19 years. The accused appellant no.2 also did not file any appeal against his conviction and served out the entire period of sentence, which is evident from the custody certificate dated 21.3.2024, issued by Senior Jail Superintendent, Jhansi. Hence, no fruitful purpose would be served in condoning the delay and granting special leave to appeal as prayed by the appellant state.

49. Since prosecution could not make out a case against the respondents for granting special leave to appeal for launching proceedings with the respect to reversal of conviction under Sections 420, 406, 468, 477- A I.P.C. Respondent no. 2 also did not file any appeal/ revision against his conviction and served out the entire period of sentence as mentioned above, no fruitful purpose would be served for granting special leave to appeal that too after about 19 years. Resultantly, prosecution through the instant set of evidence, miserably failed to establish offence under section 409, 467, 471 I.P.C. against respondent no. 2 M.C. Arya.

50. In the circumstances, stated above while the judgment and order dated 04.11.2006 has attain finality and is binding all the parties. So, technically there is no ground to institute these appeals. The accused / respondent no.2 also did not file any appeal against his conviction. He has served out the entire period of sentence which is evident from the custody certificate dated 21.3.2024 issued by Senior Jail Superintendent, Jhansi. In these circumstances it will not be justified to grant special leave to appeal to the appellant state, and that too about after 19 years.

51. The order dated 4.11.2006 passed by the learned Special Judge/ E.C. Act has attained finality. The appeal itself has been filed with delay. The complainant who is the informant and aggrieved person did not assail the order dated 07.01.2005, passed by the learned Magistrate, as well as, Judgment and order dated 04.11.2006, passed by Special Judge E.C. Act/ ADJ Jhansi. It evinces that no illegality or perversity has surfaced on the face of impugned acquittal order. The testimony of each and every witnesses was thoroughly and carefully scanned by the learned trial court and on being satisfied with the factual and legal aspects, as projected in the deposition of witnesses, the prosecution could not make out a case against the accused respondent no.2 for granting special leave to appeal for launching proceedings with respect to reversal of conviction under sections 406, 420, 468, 477-A IPC. He has served out the entire period of sentence which is evident from the custody certificate dated 21.3.2024, issued by Senior Jail Superintendent, Jhansi. Moreover appellant has failed to point out any error, perversity and illegality in the impugned judgment and the prosecution through the instant set of evidence, has miserably failed to make out any offence under section 409, 467, 471 IPC, against the accused respondent no.2. M.C. Arya. In all these circumstances, no fruitful purpose would be served for granting special leave to appeal agianst impugned judgnet and order dated 07.01.2005 passed by learned trial court (Court of CJM Jhansi).

52. It may be imperative to mention that accused-respondent no.1, S. P. Singh has already expired and appeal against him stood abated. So far as accused-respondent no.2, M.C. Arya is concerned, as the record transpires has already undergone the sentence and has also deposited the amount of fine, imposed upon him. The government appeals are very old. In these circumstances also, there appears no justification in interfering with the findings of the trial court.

53. In the back drop of prolix and verbose discussion, made herein-above, we are of considered view that no case has been made out for granting special leave to appeal against the impugned judgment and order dated 7.1.2005, passed by the learned trial court, specially, when the accused/ respondent no.2 M.C. Arya has also not assailed the conviction order and served out the period of sentence and deposited amount of fine, imposed upon him, and now set at liberty.

54. Resultantly, these Government Appeals sans merit. Hence, prayer made for granting leave to challenge the impugned judgment and order dated 07.01.2005 passed by the trial court, fails and is accordingly refused. Consequently, appeals are Dismissed.

54. Let a copy of the judgment be kept on each of the connected Government Appeals mentioned herein above and a certified copy of this judgment and order be forwarded to the court concerned for information and necessary compliance.

55. Let the record be consigned and the trial court record, be remitted back, at the earliest.

Date:- 20.09.2024.

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