Gujarat High Court
Narendra Mohanlal Mehta vs State Of Gujarat & 4 on 16 February, 2016
Author: M.R. Shah
Bench: M.R. Shah, Mohinder Pal
R/CR.MA/19649/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION
(FOR LEAVE TO APPEAL) NO. 19649 of 2015
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NARENDRA MOHANLAL MEHTA....Applicant(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR PRADEEP PATEL, ADVOCATE for the Applicant(s) No. 1
MR KP RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 16/02/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] The present application has been preferred by the applicant herein-original complainant for leave to appeal against the impugned judgment and order of acquittal passed by the learned Additional Chief Judicial Magistrate, Ankleshwar (hereinafter referred to as "the trial Court") in Criminal Case No.473/2013 by which the learned trial Court has acquitted the original accused for the offences punishable under Sections 409, 418 and 114 of the Indian Penal Code.
[2.0] We have heard Shri Pradeep Patel, learned advocate appearing on behalf of the applicant herein-original complainant and Shri K.P. Raval, learned APP appearing on behalf of the respondent-State at length. To satisfy ourselves prima facie whether there is any substance in the main Appeal Page 1 of 5 HC-NIC Page 1 of 5 Created On Sat Feb 20 00:45:10 IST 2016 R/CR.MA/19649/2015 ORDER or not, we have heard Shri Pradeep Patel, learned advocate appearing on behalf of the applicant. He has placed the entire evidence on record for perusal of the Court.
[3.0] Shri Pradeep Patel, learned advocate appearing on behalf of the applicant has vehemently submitted that in the facts and circumstances of the case, more particularly, when the respondents nos.2 to 5 herein illegally transferred the funds lying in the account of the applicant in the reserve account of the bank without prior permission and authority of the applicant, the learned trial Court ought to have convicted the original accused for the offences for which they were tried i.e. Sections 409, 418 and 114 of the Indian Penal Code. It is vehemently submitted by Shri Patel, learned advocate appearing on behalf of the applicant that the learned trial Court has materially erred in not properly appreciating the fact that while framing the charge against the original accused for the offences under Sections 409, 418 and 114 of the Indian Penal Code, the learned Joint Judicial Magistrate First Class, Ankleshwar in its order dated 06/09/2003 had passed an order having found prima facie case of embezzlement of funds against the original accused. It is submitted that therefore the learned trial Court has materially erred in acquitting the original accused.
[3.1] It is submitted that even the original accused filed Criminal Revision Application No.465/2003 before this Court challenging the order passed by the learned Magistrate framing the charge against them for the offences punishable under Sections 409, 418 and 114 of the Indian Penal Code and at the time of hearing of the aforesaid Criminal Revision Page 2 of 5 HC-NIC Page 2 of 5 Created On Sat Feb 20 00:45:10 IST 2016 R/CR.MA/19649/2015 ORDER Application, original accused, more particularly, original accused no.2 had made a statement that the amount, which was lying in the account of the applicant i.e. Rs.33,508.30 shall be returned to the applicant. It is submitted that if the original accused would not have committed any offence, in that case, they would not have agreed to return the said amount to the applicant. It is submitted that therefore the aforesaid aspect has not been properly appreciated by the learned trial Court.
Making the above submissions, it is requested to grant leave to appeal as prayed for and admit the main Criminal Appeal.
[4.0] We have Shri Pradeep Patel, learned advocate appearing on behalf of the applicant. We have also perused and considered the impugned judgment and order of acquittal passed by the learned trial Court. At the outset it is required to be noted that the original accused were charged for the offences punishable under Sections 409, 418 and 114 of the Indian Penal Code. It was alleged by the applicant against the original accused that the original accused illegally transferred the funds lying the account of the applicant in the reserve account of the bank without permission and authority of the applicant, and therefore, the original accused have committed the offence under Sections 409, 418 and 114 of the Indian Penal Code.
[4.1] However, it is required to be noted and it is an admitted position that there was some dispute between the employer and the employee i.e. Bank and the applicant. Some disciplinary proceedings were pending against the Page 3 of 5 HC-NIC Page 3 of 5 Created On Sat Feb 20 00:45:10 IST 2016 R/CR.MA/19649/2015 ORDER applicant and the applicant was reverted to the lower post, which was held by him. It is not the case on behalf of the applicant that the original accused transferred the funds lying in his account in the bank account of any one of the accused and / or any of the accused utilized the said funds / amount. The entire amount, which was lying in the bank account of the applicant i.e. Rs.33,508/- was transferred by the management in the reserve account of the Bank. Considering the aforesaid facts and circumstances of the case, none of the ingredients of Sections 409 and 418 of the Indian Penal Code can be said to have been satisfied. From the aforesaid, it cannot be said that any of the accused had committed any criminal breach of trust as defined under Section 405 of the Indian Penal Code.
[4.2] Similarly, in the present case, it cannot be said that any case was made out under Section 418 of the Indian Penal Code. Considering the aforesaid facts and circumstances of the case, it cannot be said that the learned trial Court has committed any error in acquitting the original accused for the offences punishable under Sections 409, 418 and 114 of the Indian Penal Code.
[4.3] Now so far as the submissions of Shri Patel, learned advocate appearing on behalf of the applicant that while framing the charge the learned trial Court observed that there is a case made out against the original accused for the offences punishable under Sections 409, 418 and 114 of the Code of Criminal Procedure, and therefore, the learned trial Court ought to have convicted the original accused for the aforesaid offences is concerned, it is required to be noted that merely because some observations are made by the learned Page 4 of 5 HC-NIC Page 4 of 5 Created On Sat Feb 20 00:45:10 IST 2016 R/CR.MA/19649/2015 ORDER Magistrate at the time of framing the charge the same are not conclusive and on the basis of the same there cannot be any conviction.
[4.4] Now so far as the submissions on behalf of the applicant that even of the accused agreed to return the amount to the complainant, and therefore, original accused no.2 can be said to have admitted having commission of the offence is concerned, the aforesaid has no substance and cannot be accepted. At the outset it is required to be noted that as such at the time of hearing of Criminal Revision Application before this Court, original accused, more particularly, accused no.2 stated that without prejudice to the rights and contentions in the trial they are ready and willing to transfer the amount to the account of the applicant and / or return the amount to the applicant. Under the circumstances, on the aforesaid ground original accused cannot be convicted.
[4.5] Under the circumstances, when no fault can be found with the impugned judgment and order of acquittal, the present application for leave to appeal deserves to be dismissed and is accordingly dismissed.
(M.R. SHAH, J.) (MOHINDER PAL, J.) Siji Page 5 of 5 HC-NIC Page 5 of 5 Created On Sat Feb 20 00:45:10 IST 2016