Punjab-Haryana High Court
State Of Punjab vs Parbhash Chand Jain And Others on 11 March, 2013
Author: Jasbir Singh
Bench: Jasbir Singh
CRA- 661-SBA of 1997(O&M) 1
In the Punjab and Haryana High Court at Chandigarh
CRA- 661-SBA of 1997(O&M)
Date of decision: 11.03.2013
State of Punjab
......Appellant
Versus
Parbhash Chand Jain and others
...Respondents
Coram: Hon'ble Mr.Justice Jasbir Singh
Present: Mr.Rajesh Bhardwaj, Additional Advocate General, Punjab
for the appellant
Jasbir Singh, J. (Oral)
State of Punjab has filed this appeal against judgment dated 25.5.1996 vide which respondent Nos.1 to 3 were acquitted of the charges framed against them. All the respondents were named as accused in FIR No.282 dated 18.9.1983 police station Division No.3 Jalandhar for commission of offences under Sections 406/ 420 IPC.
It was an allegation against them that they, by playing a fraud with New Bank of India and Laxmi Commercial Bank, had raised a loan to the extent of Rs.17 lacs approximately. The above FIR was recorded on the basis of applications sent by the Managers of the above said Banks. The investigating officer recorded statements of the witnesses and on completion CRA- 661-SBA of 1997(O&M) 2 of investigation, final report was put in Court. The accused were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution produced seven witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence separate statements of all the respondents-accused were recorded under Section 313 Cr.P.C. Incriminating circumstances appearing against them on record were put to them which they denied, claimed innocence and false implication. However, they led no evidence in defence.
The trial Judge on appraisal of evidence found them not guilty and accordingly they were acquited of the charges framed against them. Hence, this application.
The trial Judge has noticed that the prosecuiton has failed to prove commission of offences under Sections 406 and 420 IPC by the respondents. When giving benefit of acquittal it was observed as under:-
"16. I have gone through the file and considerd the arguments advanced by the ld. APP for the State and the ld. Counsel for the accused. As far as charge under section 406/420 IPC is concerned, it is clear from the cross-examination of the PW's, that before taking the chassis as hypothecation, the bank satisfied himself that it belongs to M/s Raj Motors and P.S. Jain Motors and loan was given. Here, I fail to understand that when the chassis were taken in to possession by the bank as hypothecation and that do not know. They placed it under their own possession not their own godown. Why they have not posted there chowkidar at the godown. From the evidence, it is not clear that how section 406 IPC is attracted. Section 406 CRA- 661-SBA of 1997(O&M) 3 IPC is criminal breach of trust and section 420 IPC is not made out. From the evidence both the sections are not attracted. As per the version of the PW's in their cross- examination the bank satisfied himself before giving the loan for the chassis, were belonging to the accused and the loan was sanctioned. Similarly the section 406 IPC will be proved as per section 380 IPC.
17. Now coming to the section 380 IPC, which reads as under:-
"Theft in a building, tent or vessel."
From the evidence, there is not even a single iota of statement that the accused persons removed the chassis without the consent of the bank. There is no evidence that what action has been taken against the New Model Industries, where the chassis were found to be parked after stealing. There is no independent or direct evidence that it was Nem Chand Jain, P.C.Jain and K.K.Chhabria who in fact removed the chassis from the custody of the bank. Accordingly, the section 380 IPC is not attracted. Theft is not proved. Similarly, the section 420 IPC is not proved. It will not out of question to be mentioned here that, in fact the bank has acted in a negligent manner. They have not taken any step to protect their property. They simply put lock and key over the godown of the accused. In fact, the possession was with the bank, they have not protected it and they found the chassis were missing, they named the accused persons. As far as the theft is concerned, the CRA- 661-SBA of 1997(O&M) 4 prosecution has failed to prove its story beyond reasonable doubt, so section 380 IPC and 420 IPC are not proved. As far as the section 406 IPC is concerned, the bank satisfied itself as per the versions of PW's before granting the loan. It was not the duty of the accused to inform but it was the duty of the bank to protect their possession over the chassis which they miserably failed from the above noted evidence." This Court feels that the view taken by the trial Court is perfectly justified. By placing reliance on evidence of the prosecution, it was said that no offence is made out under Section 420 IPC. It was further rightly noted that there is nothing on record to prove that Nem Chand Jain, P.C. Jain and K.K.Chhabria had removed the chassis of the vehicle from custody of the bank. The view taken is as per evidence on record.
The law to interfere in a judgment of acquittal is well settled. It is only in those cases where there are compelling circumstances and judgment under challenge is perverse, the appellate Court can interfere with an order of acquittal. The appellate Court is supposed to bear in mind the presumption of innocence of the accused and that the trial Court's acquittal order further strengthen that presumption. Interference in a routine manner, where other view may be possible, should be avoided unless there are good reasons to do the same.
Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in State of Punjab v. Hansa CRA- 661-SBA of 1997(O&M) 5 Singh, 2001(1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
Similarly, in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
In Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479, decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"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." CRA- 661-SBA of 1997(O&M) 6
Similarly, in the case of State of Rajasthan v. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602, the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the CRA- 661-SBA of 1997(O&M) 7 other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Counsel for the applicant has failed to indicate any misreading of oral as well as documentary evidence on record by the trial Court. No case is made out for interference.
Dismissed.
11.03.2013 (Jasbir Singh) gk Judge