Punjab-Haryana High Court
Darshna Devi vs State Of Punjab And Others on 30 October, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
Criminal Misc. No.A-668-MA of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.A-668-MA of 2012 (O&M)
Date of Decision: 30.10.2012
Darshna Devi
.....Applicant
Versus
State of Punjab and others
.....Respondents.
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. Sushil Gautam, Advocate
for the applicant.
****
1. To be referred to the Reporters or not?
2.Whether the judgment should be reported in the Digest? RAMESHWAR SINGH MALIK J.
Crl. Misc. No. 46778 of 2012 The applicant seeks condonation of delay of 117 days in filing the application under Section 378 (4) Cr.P.C, for leave to file an appeal against the judgment of acquittal.
After hearing the learned counsel for the applicant, we are satisfied that the reasons given in the application are sufficient to condone the delay.
In view of the above, the instant application is allowed for the reasons stated therein and delay of the 117 days is condoned. Criminal Misc. No.A-668-MA of 2012 (O&M) 2 Criminal Misc. No. A-668-MA of 2012 This application has been filed under Section 378 (4) Cr.P.C., seeking leave to file appeal against the judgment dated 24.10.2011, vide which the accused-respondent No.2 to 4 were acquitted of the charge under Section 195 of the Indian Penal Code ('IPC' for short) read with Section 120-B IPC.
The criminal law was set into motion by the applicant- complainant namely Darshna Devi, by way of her complaint filed under Sections 196, 467, 478, 469, 471 IPC read with Section 120-B IPC.
In order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the factual background of the matter, recorded by the learned trial court, in para 1 of the judgment and the same reads as under:-
"The complainant Darshna Devi filed a criminal complaint before the Ilaqa Magistrate under Sections 196, 467, 468, 469 and 471 read with Section 120-B of the Indian Penal Code, on the allegations that the complainant Darshna Devi along with accused Sanjay Saini, Sona Devi and one Ashok Kumar son of Ram Rattan were the partners of the firm in the names and style M/s Saini Rice & General Mill, Rajpura. The firm was dissolved on 8.9.89. The complainant Darshna Devi took over the rights and liabilities of the said firm, whereas one Gurnam Singh son of Kishan Criminal Misc. No.A-668-MA of 2012 (O&M) 3 Singh resident of village Uksi Jattan, Tehsil Rajpura had filed a complaint under Section 138 of the Negotiable Instruments Act against the firms M/s Saini Rice & General Mills as accused No. 1 sole proprietor Darshna Devi as accused No.2 and Sanjay Saini as accused No.3 on the basis of cheque No. 272785 for a sum of Rs. 62146.66 paisa, allegedly issued by Sanjay Saini drawn on State Bank of Patiala Rajpura, in favour of Gurnam Singh. The complaint was decided by the trial court vide judgment dated 3.12.1997 resulting into acquittal of the accused including the complainant in the present case. According to the complainant Darshna Devi, the said cheque No. 272785 was issued by accused Sanjay Saini in favour of Gurnam Singh only to harass the complainant in a false complaint under Section 138 of the Negotiable Instrument Act. No amount was due against Gurnam Singh. The firms M/s Saini Rice and General Mills, Rajpura was dissolved with the consent of all the partners on 8.9.89. The balance sheet was prepared on 7.9.89. In the balance sheet, cheque books of the previous firm was in the custody of accused Sanjay Saini. Taking advantage of that, accused Sanjay Saini falsely issued the cheque on 1.9.89 by mentioned a wrong Criminal Misc. No.A-668-MA of 2012 (O&M) 4 date on the cheque. The accused No.1 hatched a conspiracy with his father, his mother Sona Devi and Gurnam Singh, so as to prepare a false and forged cheque. Gurnam Singh, the complainant of complaint under Section 138 of the Negotiable Instruments Act subsequently died and before his death, he had executed a "Will" in favour of accused No. 4 to 6. After the death of Gurnam Singh, they had prosecuted the complaint under Section 138 of the Negotiable Instrument Act. On these allegations, the complainant Darshna Devi sought prosecution of all the accused persons on the allegations that they have fraudulently and dishonestly used the cheque as a genuine account knowing the same to be forged document and in order to do so, they had hatched a criminal conspiracy.
Preliminary evidence was adduced by the complainant. Thereafter, vide order dated 5.4.2011, accused-respondents were summoned under Sections 465, 467, 471, 120-B IPC by the learned Illaqa Magistrate. No case was made out for summoning the remaining accused. Thereafter, pre-charge evidence was led by the complainant. Having found a prima facie case, the learned Illaqa Magistrate, vide order dated 13.5.2004, framed charge against the accused-respondents, for the offence punishable under Section 467, 471, 120-B IPC.Criminal Misc. No.A-668-MA of 2012 (O&M) 5
Feeling aggrieved against the order dated 13.5.2004 for framing of the charge, the accused filed a revision petition. The revisional court partly accepted the revision, vide order dated 11.8.2005 and came to the conclusion that offence only under Section 195 IPC was made out against accused-respondent Sanjay, whereas the offence under Section 120-B IPC was made out against remaining accused-respondents.
Consequently, having found offence under Section 195 IPC, being exclusively triable by the learned court of Sessions, learned trial court committed the case to the learned court of Sessions, vide order dated 11.11.2005. Accordingly, respondent- accused Sanjay Saini was charge sheeted under Section 195 IPC whereas his co-accused Ram Rattan Saini and Sona Devi were charge sheeted under Section 120-B IPC, who pleaded not guilty and claimed trial.
In order to prove its case, prosecution examined the complainant-applicant Darshna Devi as the sole witness of the prosecution, besides tendering the relevant documents in evidence.
After conclusion of the prosecution evidence, statements of the accused-respondents were recorded under Section 313 Cr.P.C. All the incriminating evidence brought on record, was put to the accused persons, who pleaded false implication and claimed complete innocence. Opting to lead defence evidence, the accused examined Handwriting and Finger Prints Expert as DW-1, besides tendering some documents in defence evidence.
It is pertinent to note here that the above said order dated Criminal Misc. No.A-668-MA of 2012 (O&M) 6 11.8.2005 passed by the learned Additional Sessions Judge, Patiala, partly accepting the revision petition of the accused-respondent against the order dated 13.5.2004, framing the charge, was affirmed by this Court in revision petition, vide order dated 9.2.2006 and the Special Leave Petition was also dismissed by the Hon'ble Supreme Court, observing as under:
"As far as the Special Leave Petition filed by Darshana Devi is concerned, we are equally convinced that the High Court did not commit any error in dropping the charges under sections 467 and 471 IPC on the materials before the court. However, we must also point out at this stage that the order dated 9th February, 2006, passed by the High Court in Criminal Revision No. 2043 of 2005, filed by Darshana Devi, wherein certain observations have been made, were not challenged or questioned by Sanjay Saini and others or even Darshana Devi. Accordingly, the same has attained finality. However, we also make it clear that such observations will be deemed to have been revision and will not stand in the way of any evidence that may be brought or adduced with regard to the transaction in question."
After hearing the counsel for the parties and appreciating the evidence, the learned trial court, vide its judgment dated 29.5.2011, acquitted the accused-respondents holding that the Criminal Misc. No.A-668-MA of 2012 (O&M) 7 prosecution has failed to prove its case to substantiate the charge under Section 195 read with Section 120-B IPC.
Feeling aggrieved against the above said judgment, the applicant has filed the present application under Section 378 (4) Cr.P.C., seeking leave to file appeal. That is how, this Court is seized of the matter.
Learned counsel for the applicant vehemently contended that the learned trial court has proceeded on a misconceived and perverse approach, while recording acquittal of the accused- respondents. He further submits that sufficient evidence was brought on record, bringing home the guilt against the accused-respondents. He also contended that the learned trial court has failed to appreciate the evidence in the right perspective, because of which the impugned judgment was not sustainable in law.
We have heard the learned counsel for the applicant and with his able assistance, have gone through the record of the case.
After giving our thoughtful consideration to the contentions raised and keeping in view the peculiar fact situation of the present case, we are of the considered opinion that present one is not a fit case for granting leave to file appeal. We say so for more than one reasons, being recorded hereinafter.
Firstly, so far as the charges under Sections 467, 471 IPC read with Section 120-B IPC are concerned, the matter has attained finality in favour of the accused-respondents by dismissal of the SLP of the applicant by the Hon'ble Supreme Court, making the observations reproduced above. Thus, no scope was left for the Criminal Misc. No.A-668-MA of 2012 (O&M) 8 applicant to re-agitate the matter, which has already become final in favour of the accused-respondents.
Secondly, so far as the other charges are concerned, the learned trial court recorded cogent findings in the impugned judgment and the same read as under:-
"It is the admitted case of the defence that the cheque dated 01.9.1989 in question Ex.P- 3 bears the signatures of Sanjay Saini. Accused Sanjay Saini has owned this documents. He admitted to have executed this cheque in favour of Gurnam Singh. Though it is the case of the complainant that the cheque in question is an antedated cheque and although it bears the date 01.9.1989 but it was issued subsequently and given a wrong date as 01.9.1989 so as to create a liability of the firm in favour of Gurnam Singh though the firm did not owe any liability towards Gurnam Singh. I am unable to accept this contention. The most important document which would resolve this controversy is Ex. DA. This document is the balance sheet drawn by the firm on 31.3.1989. The name of Gurnam Singh of village Uski fund at Sr. No.2. The firm was owing a sum of Rs. 62146.55 to Gurnam Singh as on 31.3.1989. Accused Sanjay Saini has been able to convince this court that the cheque in question Criminal Misc. No.A-668-MA of 2012 (O&M) 9 was issued in order to discharge the liability of the firm. The complainant Darshna Devi was duly confronted with the said balance sheet Ex. DA in her cross-examination. She identified her signatures on the first leaf, third leaf, fourth leaf, fifth leave and sixth leaf at points Mark 1, Mark 2, Mark 3, Mark 4 and Mark 5, though she stated that she had no knowledge with regard to the preparation of this balance sheet and the balance sheet used to be prepared by Sanjay Saini. Therefore, the execution of the balance sheet stands duly proved on the record. The complainant had admitted her signatures on every leaf of the balance sheet. She did not deny the factum of the loan raised by the firm from Gurnam Singh. She feigned ignorance about that loan. She admitted that after dissolution of the firm, she had taken over the liability to repay the loan. She had received the cheque books. She had not moved any application intimating the bank that the accused had not handed over the cheque book pertaining to the firm. In view of this admission so made by complainant Darshna Devi the stand of the prosecution that accused Sanjay Saini had stolen the cheque book and forged the cheque in question does not hold any ground.Criminal Misc. No.A-668-MA of 2012 (O&M) 10
As result of the aforesaid discussion, I have arrived at confirmed and considered conclusion that the cheque in question is not proved to be a forged and fabricated document."
XXXXX............................................................. It is abundantly clear from the bare provision of section 195 of IPC that this offence would be attracted only in those cases where the false evidence is fabricated with intention or knowledge that if used it would cause any person to be convicted of an offence which is not capital but punishable with imprisonment for life or imprisonment for a term of seven year or upwards. The case of the prosecution is that the cheque in question was forged and fabricated by the accused so as to secure the conviction of the complainant Darshna Devi in a complaint under Section 138 of Negotiable Instruments Act. The offence under Section 138 of Negotiable Instruments Act is punishable with imprisonment up to two years and find. So keeping in view the punishment prescribed for the offence U/s 138 of Negotiable Instrument Act, I am of the confirmed and considered view that the charge under Section 195 of IPC cannot be sustained."
Thirdly, after scanning the impugned judgment, we are of Criminal Misc. No.A-668-MA of 2012 (O&M) 11 the view that the learned trial court has committed no error of law, while recording the above said findings in favour of the accused- respondents. The learned counsel for the applicant could not point out anything substantial, persuading this Court to take a different view than the one taken by the learned trial court. Further, it is the settled proposition of law that whenever two views are possible, the view which goes in favour of accused, is to be followed.
Having said that, it is unhesitatingly held that the view taken by the learned trial court was based on the sound reasoning and cogent findings, while passing the impugned judgment of acquittal.
The view taken by this Court also finds support, from the judgment of the Hon'ble Surpeme Court, in the case of Arulvelu & anr.vs. State represented by the Public Prosecutor and anr. 2009 (4) RCR (Crl.) 638. The relevant observations made by the Hon'ble Supreme Court in para No.39, 40 and 41 in the case of Arulvelu's case (Supra) read as under:
In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:Criminal Misc. No.A-668-MA of 2012 (O&M) 12
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.
40. This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009 Criminal Misc. No.A-668-MA of 2012 (O&M) 13 (11) SCALE 699 again examined judgments of this Court and laid down that "An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases."
41. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.
In `Mrinal Das & others, V.The State of Tripura', 2011(9) SCC 479, decided on September 5, 2011, the Hon'ble Supreme Court, after referring to many earlier judgements, has laid down parameters, for interference against a judgement of acquittal, by observing as under :-
An order of acquittal is to be interfered with only when there are "compelling and substantial Criminal Misc. No.A-668-MA of 2012 (O&M) 14 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."
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, Criminal Misc. No.A-668-MA of 2012 (O&M) 15 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 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 Criminal Misc. No.A-668-MA of 2012 (O&M) 16 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."
No other argument was raised.
Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that no patent illegality or perversity in the impugned judgment has been pointed out. Glaring illegality or perversity is sine qua non for interference by this Court, in the impugned judgment of acquittal.
In view of the above, the present application is bereft of any merit and without any substance. No case for interference has been made out.
Resultantly, the application under Section 378 (4) Cr.P.C., seeking leave to file appeal against impugned judgment of acquittal, is ordered to be dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
30.10.2012
Ak Sharma