State Of Gujarat vs Balvantbhai Becharbhai Patel (Appeal ... on 10 February, 2015

[Cites 23, Cited by 1]

Gujarat High Court

State Of Gujarat vs Balvantbhai Becharbhai Patel (Appeal ... on 10 February, 2015

1. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 31.1.1995 passed by the learned Special Judge, Nadiad in Special Case No. 5/1991, whereby, the learned trial Judge acquitted the original accused - the respondents herein, of the charges for the offence punishable under Section 7,12,13(1)(d), 1,2, 3 read with section 13(2) of the of Prevention of Corruption Act.

2. The brief facts of the prosecution case are that the complainant is having a Saw Mill at Kapadvanj.In kapadvanj, there are about 32 Saw Mills and they have formed an Association of these Saw Mills and the present complainant was the President of the said Association. The accused persons are serving in Forest Department. It is alleged in the complaint that they accused persons are collecting Rs. 15000/- from the Association for not registering the offence. It is further alleged that in the year 1988, the accused have increased the amount and demanded Rs. 30,000/- from the Association. Since the said amount was higher, and ultimately, it was settled at Rs. 27000/-. Therefore, on 21.12.1988, Rs. 15000/- was handed over to accused no. 3 in the office of Asha Traders On 3.1.1989, accused no.

Page 2 of 17

         R/CR.A/543/1995                                                 JUDGMENT



1,2     and     3     had        gone       to        the    complainant           for
remaining         amount         of      Rs.          12,000/-.          Since     the

complainant does not want to pay any amount, he told the accused to come on 4.1.1989 between 6.00pm to 7.00pm at the office of Asha Traders. The complainant did not want to pay the amount and hence approached ACB Office at Nadiad on 4.1.1989 and lodged the complaint. Panchas were called. The complainant produced five currency notes of Rs. 100/- each and one currency note of rupee one. Panchas were introduced to complainant. PSI Mr. Puvar explained the anthracene powder treatment properly and working of Ultra violet lamp. Thereafter, after following necessary procedure, the Raiding party started at 4.45pm from Nadiad. Complainant, panch no. 1 accompanied the complainant to go to the office of Asha Traders. Panch no. 2 remained with the raiding staff. The complainant had received a Phone call from the Accused no. 3 who asked the complainant whether Keshubhai had come ? The complainant replied that yes, he himself is Keshubhai. The accused told him that you wait we are coming. Thereafter, the accused reached there and demanded for the remaining amount of Rs. 12000/-. Therefore, the complainant had given him Rs. 12000/- to accused no. 3, who in turn, gave it to accused no. 2, who has started counting it. Thereafter, the complainant then went out of the Page 3 of 17 R/CR.A/543/1995 JUDGMENT office and gave signal which was earlier decided and was instructed to show. On seeing the signal, the raiding party rushed there. On seeing the Raiding Party, accused no. 2 had thrown away the money. Thereafter, in presence of panchas, the said currency notes were seized. All these notes were shown in the lamp light which showed shining bluish powder. The clothes of the accused did not show any powder marks. The hands of the accused no. 2 and 3, complainant and hands of panch no. 2 when seen in lamp, showed anthracene powder marks. Detailed panchnama was drawn. The currency notes numbers were tallied with first part of the panchnama. These notes were signed by the panchas. Detailed panchnama was signed by the panchas who were there and also by the Investigating Officer. The currency notes were attached. The statements of the witnesses were recorded. Thereafter, the offence was registered and further investigation was carried out by the Nadiad ACB. During the course of investigation, respondent was arrested and, ultimately, charge- sheet was filed against him, which was numbered as Special Case No. 5 of 1991. The trial was initiated against the respondents.

3. To prove the case against the present accused, the prosecution has examined witnesses and also produced documentary evidence.

Page 4 of 17

         R/CR.A/543/1995                                         JUDGMENT




4.    At    the       end    of    trial,          after   recording       the

statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondents of all the charges leveled against them by judgment and order dated 31.1.1995.

5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court the appellant State has preferred the present appeal.

6. It was contended by learned APP Ms. Bhatt that the judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved all the ingredients of alleged charges against the present respondents. Learned APP has also taken this court through the oral as well as the entire documentary evidence and submitted that the present appeal deserves to be allowed. While threadbare discussing the evidence, Ms. Bhatt learned APP has taken this court through the evidence of the complainant and has strenuously urged that it was respondent no. 3 who had accepted the amount after reaching the Page 5 of 17 R/CR.A/543/1995 JUDGMENT place of the offence from where, he was nabbed. It is further submitted that even accused no. 2 who was accompanied and even his hands were tinted. She has further submitted that the judgment is so perverse that it requires to be upturned. The demand was proved. Just because the complainant was not owner of the Saw Mill, he could not lodge the complaint. Ms. Bhatt further submitted that this is a case where the learned trial Judge has misread the evidence as they were negotiating and on negotiations being taken place, the accused has reached the place of offence. Therefore, the impugned judgment and order requires to be quashed and set aside and the appeal be allowed.

7. As against this, Mr. Dhotre learned advocate for respondent no. 2 has submitted that the respondent no. 2 has never demanded the amount. The finding of fact cannot be found fault with. According to Mr. Dhotre, that very foundation of the fact that all the accused were demanding money so that case may not be lodged against the Saw Mill owners is not correct and the complaints were lodged by the respondents. The original complainant was accused in one of such complaint, and therefore, the present appeal deserves to be dismissed. Mr. Dhotre learned advocate has replied on the decision of the Apex Court in the Page 6 of 17 R/CR.A/543/1995 JUDGMENT case of State of Punjab vs. Madan Mohan Lal Verma, reported in (2013) 14 SCC 153 and in the case of Hari Dev Sharma v. State (Delhi Administration), reported in AIR 1976 SC 1489 Mr. Adhvaryu learned advocate has taken this Court through the judgment of the learned trial Judge and the complaint and submitted that there is nothing against accused no. 4 regarding demand, acceptance and recovery. He has submitted that just because he was a person working in the department was roped in the case with an ulterior motive, and therefore, the present appeal deserves to be dismissed.

8. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of "M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR", (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under;

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of Page 7 of 17 R/CR.A/543/1995 JUDGMENT acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

9. Further, in the case of "CHANDRAPPA Vs. STATE OF KARNATAKA", reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge;

[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

[3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of Page 8 of 17 R/CR.A/543/1995 JUDGMENT language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."

10. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views / conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.

10. Even in the case of "STATE OF GOA Vs. SANJAY THAKRAN & ANR.", reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said Page 9 of 17 R/CR.A/543/1995 JUDGMENT decision, the Court has observed as under;

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

11. Similar principle has been laid down by the Apex Court in cases of "STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS.", 2007 A.I.R. S.C.W. 5553 and in "GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

Page 10 of 17

R/CR.A/543/1995 JUDGMENT

12. In the case of "LUNA RAM VS. BHUPAT SINGH AND ORS.", reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under;

"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.

11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."

13. Even in a recent decision of the Apex Court in the case of "MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU", reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under:

"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the Page 11 of 17 R/CR.A/543/1995 JUDGMENT High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC573]"

14. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of "STATE OF KARNATAKA VS. HEMAREDDY", AIR 1981, SC 1417, wherein it is held as under;

Page 12 of 17

R/CR.A/543/1995 JUDGMENT "...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

15. In a recent decision, the Hon'ble Apex Court in "SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA", JT 2013 (7) SC 66 has held as under;

"That appellate Court is empowered to re- appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."

16. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.

17. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned APP for the appellant-State. On going through the entire evidence, the finding of facts cannot be Page 13 of 17 R/CR.A/543/1995 JUDGMENT interfered with and cannot be said to be perverse. It is to be noted that while admitting this appeal, the appeal against the main person i.e. accused no. 1 was not admitted. It would be necessary to mention that accused no. 3 and 5 have passed away during the pendency of this appeal which has taken 25 years to reach to this High Court finally. Taking the case of respondent no. 4, this Court, on the touch-stone of the decision of the Apex Court in the case of Murlidhar alias Gidda and another vs. State of Karnataka, reported in AIR 2014 SC 2200, wherein, parameters to interfere in acquittal appeals are reiterated, are kept in mind by this Court, and therefore, when there was no demand, no acceptance and evidence against the respondent no. 4 -ori. accused no. 4, the appeal qua respondent no. 4 deserves to be dismissed. I am fortified in my view by the decisions of the Hon'ble Apex Court in the case of Muralidhar alias Gidda and another v. State of Karnataka reported in AIR 2014 SC 2200, and in the case of Satvir Singh v. State of Delhi thru CBI, reported in AIR 2014 SC 3798.

18. This takes this court to the appeal against only other survival accused i.e. accused no. 2.

The    fact         that         the        complainant             himself         has
admitted       in         the    cross-examination                  that      he    has


                                       Page 14 of 17
         R/CR.A/543/1995                                               JUDGMENT



filed    the       complaint            to      bring        pressure       on     the

Forest Officials and the fact that there was no demand by respondent no. 2 and 4, and if at all, demand is made by accused no. 1, the present appeal qua accused no. 1 is not even admitted by this Court. In light of the decision of this Court in the case of Bhanushankar Popatlal vs. State of Gujarat rendered in Criminal Appeal No. 463 of 1978, I do not find any merits in the submissions made by the learned APP Ms. Bhatt to up-turn the judgment of the learned trial Judge. The impugned judgment being in consonance with the principles of Evidence Act also cannot be found fault with. The documentary evidence on record will not permit this court to take a different view that than taken by the learned trial Judge. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Even looking to the evidence on record, ld. APP is not able to bring home the charge levelled against the accused and persuaded this Court to take a different view than that taken by the learned trial Judge. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

19. In the above view of the matter, I am of the considered opinion that the trial court was Page 15 of 17 R/CR.A/543/1995 JUDGMENT completely justified in acquitting the respondents of the charges leveled against them. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same.

20. Though respondents no. 1,3 and 5 have passed away, the acquittal judgment will have to be confirmed against them, as once this Court did not even permit leave to appeal against respondent no. 1, and qua him, the acquittal stood confirmed. As far as respondents no. 3 and 5 are concerned, there is nothing brought on record to see that they have either demanded or accepted the money. Even their presence was not found, and qua them also, the appeal stands dismissed. This order is required because they have passed away and they are Government servant and their retirement dues will have to be decided and just because abatement would not held, I have decided the matter even on merits qua them also.

21. In the result, the present appeal is hereby Page 16 of 17 R/CR.A/543/1995 JUDGMENT dismissed. The impugned judgment and order of acquittal is confirmed. The respondents-accused are acquitted of all the charges levelled against them. R & P to be sent back to the trial Court. Bail and bail bond, if any, stands cancelled. Surety also, if any given, stands discharged.

(K.J.THAKER, J) mandora Page 17 of 17

Unlock Advanced Research with PRISMAI

Gujarat High Court