Gujarat High Court
Vinod Shantilal Raval vs State Of Gujarat on 14 February, 2020
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
R/CR.MA/1047/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1047 of 2020
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VINOD SHANTILAL RAVAL
Versus
STATE OF GUJARAT
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Appearance:
MR ISHAN MIHIR PATEL(6508) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS MOXA THAKKER ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE UMESH A. TRIVEDI
Date : 14/02/2020
ORAL ORDER
1. This application under sub-section (4) of Section 378 of Code of Criminal Procedure, 1973 is filed seeking Special Leave to Appeal challenging the judgment and order of acquittal recorded by the learned 4th Additional Sessions Judge and Judicial Magistrate First Class, Ahmedabad (Rural) dated 23.8.2019 in Criminal Case NO.4894 of 2014.
2. The applicant is original complainant whereas respondent Nos.2 and 3 are original accused Nos. 1 and 2 of the complaint. The parties are referred to as their status in the trial Court as complainant and the accused herein.
3. The case of the prosecution is that deceased brother of complainant in the year 2010 booked a flat in the scheme of Shaiwal Developers which was created by accused No.2 for a consideration of Rs.50 lakhs out of which Rs.30 lakhs were paid by cheque and Rs.20 lakhs by cash in presence of one Malavbhai Harishbhai Raval, who is Page 1 of 10 Downloaded on : Sun Jun 14 21:34:59 IST 2020 R/CR.MA/1047/2020 ORDER nephew of the present complainant and his deceased brother Kamlesh Raval. It is further asserted that the said flat, despite it is booked by his brother, for unknown reasons, sold to someone else and his deceased brother booked four different flats in his another scheme known as Binori Sonnet in lieu of the aforesaid flat booked. It is further the case of the prosecution that accused No.2 sold off the flat booked by deceased brother of the complainant for a consideration of Rs. 69 lakhs. However, his deceased brother had invested that very amount of Rs.69 lakhs by booking four flats in the scheme of accused No.2 known as Binori Sonnet adding Rs.31 lakhs obtained out of selling his bungalow known as Amantran Bungalow in presence of witness Malvabhai Harishbhai Raval, who happened to be the nephew. In short, it is the case of the prosecution that accused NO.2 had received in all total Rs.1 crore for booking of four different flats in the scheme known as Binori Sonnet. Deceased brother of the complainant and the accused NO.2 were fast friends, no writing was executed.
3.1. It is further, the case of the prosecution that, his brother died on 26.7.2010. After the death of his brother, witness Malavbhai Harishbhai Raval as also wife of deceased Kamleshbhai informed the complainant about the aforesaid facts of booking four flats in a scheme known as Binori Sonnet. Therefore, the complainant along with another witness Parimal Mehta visited the office of accused No.2 situated at Binori Sonnet, Bopal, with regard to the investment and allotment of four flats booked by his deceased brother. Initially, accused NO.2 is alleged to have responded well, however, he was whiling away the time deliberately. The accused had thereafter stopped responding and informed that they will not get any flats in the scheme and they may do whatever they want. It is further stated in the complaint that after satisfying accused No.2, a deal struck with him, accused had agreed to sell one flat in their name being Flat No.H-
Page 2 of 10 Downloaded on : Sun Jun 14 21:34:59 IST 2020R/CR.MA/1047/2020 ORDER 503 and sale agreement came to be executed on 22.6.2013 for a
consideration of Rs.26,45,000/- . Still however, the accused had not provided with possession letter, share certificate etc. of the said flat. It is further the case of the complainant that since the accused has committed criminal breach of trust and cheating with the deceased brother of the complainant, for obtaining more evidence against the accused, the complainant along with other witness Parimal Mehta as also Pragnesh Surendrabhai Amin video recorded the conversation with the accused in respect of transaction of four flats and it has been taken down over the C.D. If one may have a look at the conversation recorded in it, it is clear that accused No.2 has committed an offence of criminal breach of trust as also cheating. It is further alleged that possession of remaining three flats were never given nor any amount returned back and thereby accused has cheated his deceased brother. It is further the case of the prosecution that at the time of every transaction by his deceased brother with accused NO.2 their nephew Malavbhai Harishbhai Raval who was examined as witness also present. Thereafter his sister-in-law Lataben who was staying at Canada for initiating further or other legal proceedings, she executed one power of attorney in the name of complainant. Before four months to filing of the complaint, complainant met the accused along with witness Parimal Mehta at his office at Bopal site and on inquiring about remaining three flats either to be allotted to them or to his sister-in-law or not, the accused NO.2 had insulted them and threatened them of dire consequences. Thus, it is alleged that accused has committed the offence under Section 406 and 420 of Indian Penal Code. It is further the case of the prosecution that though on 26.11.2013, the complaint was given to Bopal Police Station in writing it was not recorded as F.I.R. and, therefore he had to file a complaint before the Court.
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4. After filing of the complaint vide order dated 1.7.2014, process for an offence under Sections 406,420 and 114 of the Indian Penal Code came to be issued against accused Nos. 1 and 2. Thereafter, recording pre-charge evidence of complainant and witnesses vide Exh.18 charge for an offence under Section 406, 420 and 114 of the Indian Penal Code came to be framed against the accused. Since accused pleaded not guilt to the charge, trial proceeded against them.
5. To prove the case against the accused, the complainant had examined in all five witnesses and produced and proved nearly five documents. On conclusion of recording evidence, the further statement under Section 313 of the Code of Criminal Procedure, 1973, came to be recorded of the accused where he has denied the charge against him and he has also denied the conversation recorded over the pen-drive and he has said that no such conversation took place to allot any flat or booking thereof. In his defence he has asserted that the sale deed is already executed for an amount for which, the bank statement is produced by the complainant. It is further the case of the defence that during the life time of deceased brother of the complainant part consideration received and since the wife of the deceased Kamleshbhai had given power of attorney to the complainant, after obtaining the remaining consideration towards flat, a sale deed came to be executed. It is further the case of the defence that the complainant has come out with false facts taking disadvantage of death of his brother, more particularly, when his deceased brother had not booked any flat in the scheme as claimed by the complainant.
5.1. Thereafter complainant as also the accused submitted their written arguments. After hearing the complainant as also the accused, the learned Magistrate has acquitted the accused as aforesaid.
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6. Mr.Ishan Patel, learned advocate for the applicant has taken me through the deposition of the witnesses and the judgment threadbare. According to his submission since the nephew of the complainant Malavbhai Raval was witness to all the transactions with the accused by deceased brother Kamleshbhai and who is examined before the Court, the deposition of the complainant is supported by that witness and, therefore, learned Magistrate could not have acquitted the accused. He has further submitted that since there was a recorded audio-video conversation on C.D. also produced proving the conversation between the accused, the complainant and the witnesses, Magistrate should not have acquitted them. Therefore, he has submitted that Special Leave to Appeal be granted and appeal be admitted.
7. As against that, Ms. Moxa Thakker, learned Additional Public Prosecutor submitted that it is only asserted in the complaint that complainant had gone to Bopal Police Station and given written complaint on 26.11.2013. However, he has failed to prove before the Court. Infact, he had not given such written complaint. She has further submitted that since the case is instituted on a private complaint and there is no appeal preferred by the State, considering the reasons assigned by the learned Magistrate while recording an order of acquittal, the Court may pass appropriate order.
8. Pursuant to the filing of this application for leave to appeal vide order dated 20.1.2020, record and proceedings of the case was called for from the trial Court. After going through the depositions of the witnesses as also the documents produced and proved by the complainant, it is clear that whatever is asserted by the complainant in his deposition is not supported by any contemporaneous record for the truth therein. Mere assertion of any transaction not supported by Page 5 of 10 Downloaded on : Sun Jun 14 21:34:59 IST 2020 R/CR.MA/1047/2020 ORDER any contemporaneous record, is normally no evidence in the eye of law, more particularly, when complainant himself is not connected with any transactions said to have been executed with the accused. However, complainant has come out with the story that his nephew was all through out there with his deceased brother when transaction took place. Still the same remains on oral assertion not supported by any documentary evidence.
9. Going through the documents produced and proved on record, it is clear that the amount which was paid by deceased brother Kamleshbhai to the accused after giving it credit and receiving rest of the consideration subsequent to the death of Kamleshbhai, a sale deed has come to be executed in favour of the wife of Kamleshbhai and the complainant, as also witness Parimalbhai Rajnikant Mehta, as power of attorney of Lataben signed that sale deed. The said sale deed executed is produced at Exh.5 on record. After going through the sale deed, it is clear that the amount of consideration of Rs.33 thousand which was paid on 31.3.2010 prior to the death of deceased Kamleshbhai has been given credit in the said sale deed. Subsequent consideration appears to have been paid through different cheques in the year 2012 I.e. much after the death of Kamleshbhai. If at all, accused had any intention to cheat or commit any breach of trust, he would not have given any credit of the amount received prior to the death of Kamleshbhai in the sale deed Exh.5. On the contrary he has been kind enough to execute the sale deed after obtaining the remaining consideration from Lataben wife of Kamleshbhai and got executed sale deed which is signed by complainant as also witness Parimal Mehta as Power of Attorney holder of Lataben.
10. So far as oral version of the witnesses is concerned, it is not supported by any contemporaneous record. Even if those assertions Page 6 of 10 Downloaded on : Sun Jun 14 21:34:59 IST 2020 R/CR.MA/1047/2020 ORDER are believed to be true, there is no whisper about any fraudulent intention of the accused at the time of entering into any transaction with deceased Kamleshbhai. Not only that even subsequent to the death of Kamleshbhai, he has given credit of the amount received by him which is apparent from sale deed Exh.5. Thus, on oral evidence led by the complainant, without anything more, cannot be believed at all. Complainant has failed to establish by leading cogent reliable evidence that the accused has dishonestly induced Kamleshbhai to part with any property or valuable security and, therefore, it falls short of an offence under Section 420 of the Indian Penal Code. The complainant or witnesses have failed to show or disclose any intention on the part of the accused from the very beginning of the transaction which holds accused guilty for an offence under Section 420 of the Indian Penal Code.
11. The person who must be most aware in financial transaction of husband would be witness Lataben, wife of deceased Kamleshbhai. Very surprisingly, Lataben has not entered the witness box. Not only that, Lataben has never complained of any of the transactions even if she is knowing about the same as claimed by the complainant and the witnesses. At the same time, for whatever amount parted by the deceased brother of the complainant it has been given credit to and therefore, it cannot be said that the accused has committed any offence under Section 406 of Indian Penal Code. In absence of any proof of such payment as asserted by the complainant, except oral version, it is not believable at all.
12. With regard to evidence in the form of audio video conversation recorded in a pen-drive, thereafter transferring the said data on a C.D. which is produced vide Exh.7, which is not the authenticated version at all. As such for any electronic evidence to be produced and proved Page 7 of 10 Downloaded on : Sun Jun 14 21:34:59 IST 2020 R/CR.MA/1047/2020 ORDER on record, there has to be certification under Section 65B of Indian Evidence Act. Not only that the original source on which it is claimed to have been audio video recorded is also not produced by the complainant and, therefore, Exh.7 C.D. can never be relied on, that too, for whatever recorded in it.
13. Not only that witness Pragnesh Surendrabhai Amin Exh.38 claimed that whatever conversation took place with complainant by the accused he was audio video recording it on the mobile phone and thereafter supplied the C.D. to the complainant. However, when the said witness was cross-examined he has admitted that the said mobile over which the conversation was recorded was of Parimal Mehta. He has further admitted in his cross-examination that only once he had prepared such audio video recording of the conversation which took place. He has further pleaded ignorance in the cross-examination that on which company mobile he has recorded the said conversation. He has further pleaded ignorance about the range of the said mobile for recording. He has further admitted that he has used computer to record on C.D. from the mobile, whereas, witness Parimal Mehta Exh.39 has asserted in his deposition that 4-5 times meeting took place with the accused and at all those times witness Pragnesh Surendrabhai Mehta was accompanying them and he was recording the conversation over the mobile for all the 4-5 times. Therefore, the story put forth by the complainant and his witnesses is not inspiring any confidence about recording of conversation over the mobile phone, even if it is certified by the person who recorded it. Over and above that as recorded by the learned Magistrate, on hearing the recorded conversation, no such facts as asserted and alleged in the complaint with particular name found in it.
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14. The learned Magistrate has at paragraph 19 of the judgment recorded nearly 11 reasons for discarding the case of the prosecution and recording an order of acquittal.
15. The prosecution has failed to prove by producing documentary evidence with regard to booking of any flat by producing either the receipt or possession letter or allotment letter etc. Not only that, vide Exh.14 one bank statement claiming to be that of Kamleshbhai again produced showing it to be original but it is found to be notarised. Not only that it has not been validly issued and signed by the bank authority where the said account is maintained, and therefore, no reliance can be placed on that Exh.4. In absence thereof, as recorded by the learned Magistrate, the assertion by complainant that Rs.30 lakhs were paid by cheque however, complainant has failed to prove it through producing any convincing documentary evidence. Except the oral assertion of booking four flats, no material is produced in support thereof by the prosecution.
16. The learned Judge has assigned very cogent and good reasons for recording an order of acquittal in favour of the accused which calls for no interference in the acquittal appeal. Since the complainant has failed to prove his case by leading reliable evidence against the accused and, therefore, I see no reason to interfere with the acquittal recorded by the learned Judge.
17. Hence, this application seeking Special Leave to Appeal under sub-section (4) of Section 378 of the Code of Criminal Procedure, 1973, is hereby refused.
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18. Since Special Leave to appeal is refused, automatically, the appeal stands dismissed.
19. Record and Proceedings be sent back immediately to the trial Court.
(UMESH A. TRIVEDI, J) NAIR SMITA V. Page 10 of 10 Downloaded on : Sun Jun 14 21:34:59 IST 2020