Bombay High Court
Kantilal S/O. Sahebrao Sonwane vs Dilip Dangalrao Chavan And Anr on 18 September, 2018
Author: V. K. Jadhav
Bench: V. K. Jadhav
crirevn194.17
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 194 OF 20017
Kantilal s/o Sahebrao Sonwane ...Applicant
versus
Dilip Dangalrao Chavan and others ...Respondents
.....
Smt. Ranjana D. Reddy, advocate for the applicant
Mr. U.S. Patil, advocate for respondent No.1.
Mr. B.V. Virdhe, A.P.P. for respondent No.2-State
.....
CORAM : V. K. JADHAV, J.
Date of Reserving
the Order :12.09.2018
Date of pronouncing
the Order : 18.09.2018
ORDER:-
1. This criminal revision application is preferred by the original complainant against the judgment and order of acquittal dated 19.9.2011 passed by learned Chief Judicial Magistrate, Jalgaon in R.C.C. No. 471 of 2007 and confirmed by the Additional Sessions Judge, Jalgaon in criminal appeal No. 14 of 2014, by judgment and order dated 4.7.2017.
2. Brief facts giving rise to the present revision application are as follows:-
crirevn194.17 -2-
a) P.W.4 Kantilal Sonwane/original complainant had taken on rent a saloon shop from one Suryawanshi and the same was taken on rent of Rs.600/- p.m. by the intervention of respondent no.1/accused.
On 12.1.2006, P.W.1 Anil Patil had assured the complainant Kantilal that with the intervention of respondent/accused, he would convince the owner of saloon shop to sell the same to the complainant/revision petitioner. Consequently, on the same day, P.W.4 Kantilal Sonwane had paid the amount of Rs.18,000/- to the accused in presence of P.W.1 Anil Patil and his own mother Kamalbai Sonwane. Even the owner of the shop has also given his affidavit to the effect that under the intervention of the accused, he would sell his shop to the revision petitioner/original complainant. The revision petitioner/original complainant has taken entry of payment of the said amount of Rs.18,000/- in the register which bears his signature and the signature of the accused. It is the case of the prosecution that the revision petitioner/original complainant has paid the amount from time to time and total amount paid is to the tune of Rs.1,78,000/-. On 23.6.2007 at about 8.30 a.m., the revision petitioner/original complainant had been to the house of respondent no.1/accused asking him to complete the transaction or to return back the amount, however, he was beaten by the accused and also forcibly removed the revenue stamps affixed on the receipts. The complainant/revision petitioner has therefore, lodged the complaint. After due crirevn194.17 -3- investigation, the concerned police station has submitted charge sheet. The learned Chief Judicial Magistrate, Jalgaon framed the charge against respondent-accused for the offences punishable under Sections 420, 323, 504, 506 of I.P.C. The respondent accused pleaded not guilty to the charge and claimed to be tried.
b) The prosecution has examined in all four witnesses to substantiate the charges levelled against the accused. After recording the statement under Section 313 of the Code of Criminal Procedure, 1973 and after hearing the prosecution and the defence counsel, the learned Chief Judicial Magistrate, Jalgaon by the impugned judgment and order dated 19.9.2011, acquitted the respondent/accused of the offence punishable under Section 420, 323, 504 and 506 of I.P.C.
c) Being aggrieved by the same, the revision petitioner/original complainant has preferred criminal appeal No. 14 of 2014 and the Additional Sessions Judge, Jalgaon, by judgment and order dated 4.7.2017 dismissed the said appeal. Hence, this criminal revision application.
3. Learned counsel for the petitioner submits that the courts below have not considered the documentary evidence in its proper crirevn194.17 -4- perspective. The courts below have discarded the oral evidence of revision petitioner/original complainant. The petitioner has produced on record the documents Exh. 35 to 42 in respect of payments made to the respondent/accused form time to time and also the documents of transaction of loan obtained from the Maharashtra Bank as well as the Raisoni Co-operative Credit Society, which are marked at Exhibits 43 and 44 respectively. Even the revision petitioner-original complainant has placed on record the consent deed executed by the original owner of Saloon Shop Sarlabai Suryawanshi. Learned counsel submits that even though there is sufficient evidence that the petitioner/original complainant has paid Rs.1,78,000/- in total to the respondent/accused, the trial court has not considered the same. Learned counsel submits that there is sufficient evidence to conclude that the respondent/accused cheated the complainant and induced him to pay Rs.1,78,000/- under a false promise.
4. Learned counsel for respondent No.2/original accused submits that except the revision petitioner-original complainant, other prosecution witnesses have not supported the prosecution case in any manner. P.W.1 Anil Patil, who is the star witness in the matter, has not supported the prosecution case at all. Learned counsel submits that the report of hand writing expert is against the complainant. The petitioner/original complainant has also instituted a crirevn194.17 -5- Regular Civil Suit for recovery of the said amount, however, the said suit came to be dismissed. Learned counsel submits that so far as the extract of loan account of Maharashtra Bank and Raisoni Co- operative Credit Society are concerned, nothing can be concluded on its basis. The revision petitioner-original complainant has improved his story a lot and most of the facts do not find place in the complaint. Learned counsel submits that the trial court has rightly acquitted the accused and the appellate court has confirmed the said order. There is no substance in this revision application. The revision application is thus liable to be dismissed.
5. In the case of Vimal Singh vs. Khuman Singh, reported in 1998 (7) SCC 223 the Supreme Court, while discussing the power of High Court in the matter of interference with the order of acquittal, by referring the decision of the Supreme Court in the case of K. Chinnaswamy Reddy vs. State of Andhra Pradesh, reported in AIR 1962 SC 1788, in para nos. 8 and 9 of the judgment, has made the following observations:-
"8. The legal position as to the powers of the High Court in revision in the matter of interference with the order of acquittal is no longer res integra, as the law in this regard is very well settled. Suffice it to refer to in this regard a decision of this Court in K. Chinnaswamy Reddy vs. State of Andhra Pradesh (AIR) 1962 SC 1788) wherein it was held, thus :
crirevn194.17 -6- "It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside the a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised.....
Where the appeal Court wrongly ruled out evidence which was admissible, the High Court would not be justified in interfering with the order of acquittal in revision, so that the evidence may be reappraised - after taking into account the evidence which was wrongly ruled out as inadmissible. But the High Court should confine itself only to the admissibility of the evidence and should not go further and appraise the evidence also".
9. Coming to the ambit of power of High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgment of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when crirevn194.17 -7- it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub- section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. In fact, Sub- section (3) of Section 401 of the Code forbids the High Court in converting the order of acquittal into one of conviction. In view of the limitation on the revisional power of the High Court, the High Court in the present case committed manifest illegality in convicting the appellant under Section 304 Part - I and sentencing him to seven years' rigorous imprisonment after setting aside the order of acquittal."
6. In the case of Sheetala Prasad and others vs. Sri Kant and Anr. reported in AIR 2010 SC 1140, the Supreme Court in para 9 has made the following observations: -
"9. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-Section (3) of Section 401 of crirevn194.17 -8- Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice require interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered."
7. Thus, by applying the above stated principle to the facts of the case in hand, I find that as per the prosecution evidence, P.W.1 Anil Patil has not supported the prosecution case in any manner. According to the prosecution story, the said P.W.1 Anil Patil has assured the revision petitioner-original complainant that under the intervention of the accused, he would manage the purchase of said saloon shop from its original owner. It is also case of the revision petitioner/original complainant that in presence of P.W.1 Anil Patil he has paid the amount from time to time to the accused. P.W.1 Anil crirevn194.17 -9- Patil has denied the portion marked "A" and "B" of his statement and though he was subjected to cross examination at length by the learned A.P.P., nothing was revealed. Thus, the prosecution has no more relied on his evidence. Thus, except the evidence of P.W.4 i.e. the revision petitioner himself, there is no other evidence against the accused. So far as the amount paid to the accused from time to time, the prosecution has relied upon the Exhibits 35 to 42, however, on perusal of the original record I find that the said receipts do not bear signature of the accused.
8. According to P.W.4 Kantilal Sonwane/complainant, the accused has forcibly removed the stamps on all receipts. However, the fact would remain that the said receipts do not bear signature of the accused. So far as the extracts of loan accounts are concerned, nothing can be concluded on the basis of entires of the said extract. There is no entry about withdrawal of amount of Rs.20,000/-. It is the case of the complainant that after obtaining loan from the Maharashtra Bank and Raisoni Co-operative Credit Society, the amount of Rs.20,000/- from each of the aforesaid loan accounts has been paid to the accused. However, there is no entry even in the account extracts about withdrawal of the said amount on the particular date, nor any entry that the amount has been transferred in the name of accused. P.W.4 Kantilal Sonwane/original complainant crirevn194.17 -10- has materially improved the story about payment of certain amount to the accused. According to P.W.4 Kantilal Sonwane, the accused has taken the amount from consideration amount of the agricultural land and the house sold by the complainant to some other persons, however, as rightly observed by the trial court, prosecution has not examined the purchasers of said properties and also there is no reference about said transactions in the complaint. It is also part of record that form the same transactions the complainant P.W.4 Sonwane had instituted a regular civil suit, however, he could not prove his case in the said civil suit and accordingly the civil court has dismissed the said suit instituted for recovery of the said amount of Rs.1,78,000/- from the accused. Lastly, the report of handwriting expert Exhibit 51 is also in negative. The prosecution has, thus, utterly failed to prove the case against the accused beyond releasable doubt and failed to prove the charges levelled against the accused. Learned Chief Judicial Magistrate, Jalgaon has rightly acquitted the accused and the said order is confirmed by the Sessions Court in appeal.
9. In the result, I do not find that any case is made out so as to cause interference in the order of acquittal by exercising revisional jurisdiction. The trial court has considered each and every piece of evidence and by a well reasoned order, acquitted the accused. The crirevn194.17 -11- revision petitioner has failed to point out that the trial court has considered irrelevant evidence and wrongly brushed aside the admissible evidence as inadmissible. In view of the same, I do not find any substance in this criminal revision application. Hence, the criminal revision application is hereby dismissed.
(V. K. JADHAV, J.)
rlj/
Digitally signed
Rangnath by Rangnath
Laxmanrao
Laxmanrao Jadhav
Jadhav Date: 2018.09.25
15:19:56 +0530