Calcutta High Court (Appellete Side)
M/S. Triveni Sheet Glass Works Limited vs Yogesh Chandra Agarwal And Others on 13 March, 2012
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
CRA No.221 of 1999
M/s. Triveni Sheet Glass Works Limited
Versus
Yogesh Chandra Agarwal and others
For the appellant: Mr. Alok Kumar Mitra
Mr. A. N. Tewari
Mr. Avijit Pyne
For the respondents: Mr. Tirthankar Ghosh
Mr. I. C. Sharma Judgment on: March 13, 2012 Tarun Kumar Gupta, J.:-
This is an appeal against a judgment of acquittal dated 19th May, 1999 passed by learned A.C.J.M., Alipore in T. R. No.34 of 1997. By the judgment impugned learned Trial Court acquitted both the respondent accused persons.
Being aggrieved with said judgment of acquittal the complainant company has filed this appeal. The appellant complainant's case may be summarized as follows:- 2
M/s. Triveni Sheet Glass Works Limited is a company incorporated under the Indian Companies Act, 1956. Said Company is the owner of flat No.101, first floor, Saikat Apartment at 274 Parnasree Pally, P. S. Behala. Accused No.1 Yogesh Chandra Agarwal came to Calcutta some time in September, 1994 in connection with his service in a private firm and approached Mr. P. N. Agarwal, one of the directors of said company to provide him a temporary accommodation. Sri P. N. Agarwal permitted accused No.1 along with his wife being accused No.2 to live in said company's flat as a licensee without any license fee. As accused persons did not vacate said flat in spite of repeated requests there was revocation of license and filing of a Civil Case being Title Suit No.104 of 1996 in the Court of learned Assistant District Judge, 7th Court, Alipore praying for eviction. The suit was decreed ex parte on 10th of October, 1996. Execution proceeding being Title Execution Case No.31 of 1996 was filed. Writ of delivery of possession was accordingly issued. The Court bailiff in execution of said writ of delivery of possession handed over possession of the flat to the company's representative on 4th of January, 1997at 1 P. M. The company representative kept said flat under lock and key. On that day around 7 P. M. accused persons along with some other unknown persons forming an unlawful assembly broke open the padlock of said flat and criminally trespassed therein by taking forcible possession of the same and wrongfully restrained the company 3 representative to enter into said flat. The matter was reported to the nearby police station by letter dated 4th of January, 1977 which is recorded Vide G. D. entry No.334 dated 4th of January, 1977 at Behala P. S. Later on a specific complaint was filed against both the accused persons under Section 147/448/341 Indian Penal Code. Processes were accordingly issued and accused persons appeared and faced trial under Section 147/448/341 Indian Penal Code.
The defence case as it is gathered from the trend of cross-examination of relevant P. W.s as well as from the statements of accused persons under Section 313 Cr. P. C. is that accused No.1 was occupying said flat with his wife as a caretaker and that there is no incident as alleged. In order to prove this case appellant complainant adduced oral evidence of six witnesses.
P. W. 1 Meghadri Kumar Chattopadhyaya deposed that he was authorized to file the criminal case by the company through a resolution (Ext.1) and a letter of authority (Ext.2). He further deposed that accused Yogesh Chandra Agarwal was permitted to stay in said flat of the company as a licensee without any license fee at the instance of P. N. Agarwal, the then director. He further deposed that the company obtained an ex parte decree of eviction against the accused persons and that delivery of possession of the flat was given by the Court bailiff to him, being 4 representative of the company, on 4th January, 1997 at 1 P. M. He further deposed that office peons namely Uttam Mukherjee and Amit Biswas were kept in said flat to guard the same and that he went out to make arrangement for security guard for said flat. According to him, one of them informed him over phone that in the evening the accused persons along with some unknown miscreants forcibly entered said flat by breaking open the door and drove them out and that at about 10 P. M. on that day he along with those persons had been to Behala P. S. and lodged a diary.
P. W. 2 Uttam Kumar Mukherjee deposed that on 4th of January 1997 around 10 A. M. the Court bailiff delivered possession of the case flat to Mr. M. K. Chattopadyaya as representative of the company in presence of him and other employees of the company and that he and Amit Biswas, another peon of the company, remained in the flat but around 6.30 P. M. /7 P. M. the accused persons along with some unknown persons forcibly entered the flat by breaking open the door and drove them out. According to him, they informed Mr. Chattopadyaya over phone and around 10 P. M. went to Behala P. S. to lodge a G. D. P. W. 3 Sanatan Chakraborty is a police constable who produced concerned G. D. No.334 dated 4th of January, 1997 (Ext.5).5
P. W.4 Pradip Kumar Dey is a group D employee of the concerned Court who produced writ of delivery of possession (Ext.3) to show that as per report of bailiff the possession was delivered on 4th of January, 1997 at about 11 A. M. P. W.5 Amit Kumar Biswas deposed that on 4th of January, 1997 around 1 P. M. while the possession of the case flat was handed over to Mr. M. K. Chattopadyaya, the company's representative by the bailiff he along with other office personnels were present and that he and one Uttam Mukherjee were asked to stay in said flat. He further deposed that around 6.30 P. M. / 7 P. M. the accused persons accompanied by many persons forcibly entered said flat by breaking open the door and drove them out. According to him they informed Mr. M. K.Chattopadyaya around 7.15 P.M. and that they had been to Behala P. S. where Mr. Chattopadyaya also came and lodged a diary around 10 P. M. P. W. 6 Amulyadhan Bose deposed that he being a process server of Alipore Court executed the writ of delivery of possession in connection with Execution Case No.31 of 1996 on 4th of January, 1997 and delivered possession of the premises to M. K. Chattopadyaya, employee of the decree holder company. He also proved and identified his report (Ext.3).
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On the basis of said evidence on record learned Trial Court acquitted the accused persons from all the charges.
Learned counsel for the appellant submits that learned Trial Court disbelieved the oral evidence of the eye witnesses of the incident namely P.W.2 Uttam Kumar Mukherjee and P. W.5 Anil Kumar Biswas by giving unnecessary stress to some omissions and / or contradictions as came out from the written complaint as well as G. D. (Ext.5). He further submits that in the process learned Trial Court also disbelieved the evidence of P.W.6 (Court bailiff) regarding handing over possession of the flat in question to P.W.1 on 4th of January, 1997. He further submits that the report of bailiff (Ext.3) clearly goes to show that on 4th of January, 1997 the possession of the case flat was handed over to the representative of the complainant company (P.W.1). According to him, learned Trial Court wrongly held that handing over possession was a myth and a paper transaction and that oral evidence of forcible dispossession of employees of company namely, P.W.2 and P.W.5 was not believable. Accordingly, he has prayed for setting aside said order of acquittal and for passing appropriate order of conviction and sentence. In support of his contention he has referred case laws namely State of U. P. vs. Anil Singh (AIR 1988 Supreme Court page 1998) and the case of Rajesh Singh and Ors. vs. State of U. P. [2011 (2) CLJ (SC) page 173].
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Learned counsel for the private respondent accused persons, on the other hand, submits that as per G. D. made in the same night around 10 P.M. there was allegation that accused persons were trying to occupy the flat by threatening the informant with dire consequences, whereas complaint was filed alleging that after taking over possession of the flat from the Court bailiff it was kept under lock and key and that on that day around 7 P. M. the accused persons along with some unknown persons criminally trespassed into said flat by breaking open pad lock and restraining the company's representative to enter into said flat, whereas as per oral evidence of P.W.1, P.W.2 and P.W.5, all being employees of the complainant company, P. W.2 (Uttam Kumar Mukherjee) and P.W.5 (Anil Biswas) were inside the flat after taking possession and that accused persons along with other unknown persons forcibly took possession of the same by breaking open the door of the flat and by throwing out P.W.2 and P.W.5. According to him, those oral evidence of P.W.1, P.W.2 and P.W.5 relating to the alleged incident were in direct conflict with the contents of G. D. as well as written complaint and accordingly learned Trial Court was justified for not relying upon said oral evidence. He further submits that there were also contradicting versions about the time of taking possession of the said flat on the fateful date. In this connection he refers to the relevant evidence of concerned witnesses wherefrom it appears that P.W.1 as well as P.W.5 stated that on the fateful 8 date the company got possession of the flat in question from Court bailiff around 1 P. M. whereas P.W.2 Uttam Mukherjee stated said time around 10 A. M. and the Court bailiff P.W.6 stated said time of delivery as 11 A. M. According to him, in view of said discrepancy in the evidence of P.W.s learned Trial Court was justified to hold that the story of handing over physical possession was perhaps not correct. In this connection he further submits that though it came out that said flat was situated in a densely populated area having many other flats under occupation of different persons in the same building but not a single independent person of that building or even that locality was cited as a witness in this case. Accordingly, he submits that the order of acquittal passed by learned Trial Court does not call for any interference in view of those glaring discrepancies and defects in the prosecution case.
In support of his contention he referred case laws of Chandrappa and Ors. vs. State of Karnataka (2007) 2 SCC (Cri) page 325, Ghurey Lal vs. state of Uttar Pradesh (2009) 1 Supreme Court Case (Cri) page 60 and State of Uttar Pradesh vs. Banne alias Baijnath and others (2009) 2 Supreme Court Case (Cri) page 260.
At the time of hearing an appeal from the order of acquittal the Court of law has to see whether evidence on record was sufficient to prove the allegations against the accused persons beyond reasonable doubt and whether learned Trial Court passed 9 the order of acquittal on flimsy grounds disregarding cogent and believable evidence on record.
The extent of powers and duties of High Court in appeal against acquittal and mode of exercise of the same came up before Privy Council as well as Supreme Court on several occasions. As far back as in 1934 Lord Russel in the case of Sheo Swarup(39 CWN page 15) held that section 378 and 386 gave to the High Court full power to review at large the evidence upon which the acquittal was founded, and to reach the conclusion that order of acquittal should be reversed without having any limitation. However, it was stated at the same time that in exercising said power and before reaching its conclusion upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the view of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. Said view was followed in several subsequent decisions namely the case of Noorkhan reported in AIR 1964 SC286, the case of Thiagaraja reproted in 51 CWN page 732, the case of Surajpal reported in AIR 1952 SC page 42 and many other cases. In the case of Rama Bhupala reported 10 in AIR 1971 Supreme Court page 460 it was further held that if two reasonable conclusions can be reached on the basis of evidence on record, the Appellate Court should not disturb the findings of the Trial Court. The same view was endorsed and followed in some recent cases as referred by learned counsel for the respondent accused persons. Keeping in mind the principles as laid down by Hon'ble Privy Council and Supreme Court as stated above, let me examine the findings of learned Trial Court in perspective of the evidence on record.
There is no denial that there were conflicting versions about the time of giving possession to the representative of the complainant company namely P.W.1 by the process server of the Court in the execution case. According to P.W.1 M. K. Chattopadyaya as well as P.W.5 Anil Biswas it was around 1 P. M. whereas according to P.W.2 Uttam Mukherjee it was 10 A. M. while as per evidence of Court bailiff (P.W.6) and his report (Ext.3) it was 11 A. M. Prosecution failed to give any satisfactory explanation for said glaring discrepancy regarding time of delivery of possession of the case flat on the alleged date of occurrence.
Admittedly G. D. entry No.334 dated 4th of January, 1997 of Behala P. S. (Ext.5) was the earliest information regarding the alleged incident. As per Ext.5 respondent accused persons were trying to occupy the flat and threatened the 11 informant with dire consequences. Had there been the incident of forcible taking possession of case flat by the accused persons after breaking open door and throwing away men of company namely P.W.2 and P.W.5 therefrom, then the same should have been reflected in the G. D. entry. The contents of said G. D. entry (Ext.5) made on the same date around 10 P. M. after the alleged occurrence at 7 P. M. gave a fatal blow to the prosecution case as made out in the evidence of P.W.1, P.W.2 and P.W.5.
Admittedly the written complaint was filed in Court after about two months from the date of the alleged occurrence and not in hot haste. As per said complaint, after taking over possession of said flat on 4th of January, 1997 around 1 P. M. the same was kept under lock and key and that accused persons along with some unknown persons criminally trespassed into said flat around 7 P. M. on that day after breaking open pad lock. There is no whisper in said complaint about presence of employees of company namely P.W.2 Uttam and P.W. Anil in the flat or of taking possession of the same by the accused persons by breaking open door and then throwing out those two persons. No explanation is forthcoming as to why the oral evidences of P.W.1, P.W.2 and P.W.5 deviated from the written complaint on that score.
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Admittedly, there was a strained relation in between accused persons and the complainant company but no independent local witness, be it other flat owners of said building or persons of that locality, came forward to support the prosecution case of forcible taking possession of the case flat by the accused persons after breaking the door. It is true that now a days local persons are usually reluctant to be witness of a criminal case. But in view of glaring discrepancy in between the oral evidence of the alleged eye witnesses namely P.W.2 and 5 and the G. D. (Ext.5) being the earliest information in time regarding the alleged incident as well as the written complaint, the absence of independent local witness was a blow to the prosecution. Learned Trial Court cannot be said to be unjustified for putting not reliance upon said evidence of alleged eye witnesses, admittedly employees of the complainant company, in view of the discrepancies and contradictions as pointed above.
In Anil Singh's case (supra) as referred by learned counsel for the appellant it was held that as the public are generally reluctant to come forward to depose before a Court it was not correct to reject the prosecution version only on the ground that all witnesses to the occurrence were not examined or for want of corroboration by independent witnesses to the case. Unfortunately, said case law has no application in the facts and circumstances of this case, as the evidence of alleged eye witnesses 13 namely P.W.2 and P.W.5 were found to be not believable in view of the notings of the G. D. entry (Ext.5) which was admittedly the earliest information in time regarding the alleged occurrence.
In Rajesh Singh's case (supra) referred by learned counsel for the appellant complainant, it was held that when the eye witnesses stood the taste of cross-examination and the evidences were believable then the same should not be discarded for being not complete to deliver each and every detail including the names of witnesses. In the facts and circumstances of this case as discussed above in details, this case law has also no application.
In view of the above discussions, I am of opinion that prosecution has miserably failed to prove beyond reasonable doubt that on the relevant date and time there was any incident of criminal trespass into the flat by the respondent accused persons and of restraining the employees of the complainant company in the manner as alleged. As such the findings of learned Trial Court to the effect that accused persons were not guilty of committing offence as alleged do not call for any interference by this Court of appeal. As a result, the appeal is dismissed on contest.
However, I pass no order as to costs..
14Let the Lower Court records along with a copy of this judgment be forwarded to learned Trial Court at an early date.
Urgent photostat certified copy of this judgment be supplied to learned counsel / counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)