Gujarat High Court
Vikrambhai vs Pragnaben on 13 January, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.A/40/2008 6/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 40 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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VIKRAMBHAI
PRAMODRAI MEHTA - Appellant(s)
Versus
PRAGNABEN
NARESHBHAI SHAH & 1 - Opponent(s)
=========================================================
Appearance
:
MR
HM PARIKH for
Appellant(s) : 1,
None for Opponent(s) : 1,
MR DC SEJPAL, LD.
ADDL. PUBLIC PROSECUTOR for Opponent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 13/01/2010
ORAL
JUDGMENT
The appellant has preferred this Appeal under Section 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 04th December 2007 passed by the learned Judicial Magistrate First Class, Kheda, in Criminal Case No. 1247 of 2002, whereby the learned Magistrate has acquitted the respondent-accused of the charges levelled against him.
The short facts of the prosecution case is that the complainant is a Loan Officer in The Kheda People's Cooperative Bank Limited. The Bank had given loan of Rs.10,00,000/- (Rupees Ten Lacs Only) on 28th March 2002 to the respondent-accused on hypothication. Being interest of the loan, the respondent-accused had given a cheque bearing No.007367 amounting to Rs.88,032/- to the present appellant drawn on The Kheda People's Cooperative Bank Limited. The said cheque was presented on the same day for honour, but it was returned dishonoured with the endorsement insufficient balance . Thereafter the complainant-present appellant had given a notice to the present respondent through his advocate on 18th October, 2002, which was received by the respondent-accused on 21st October, 2002. Though the said notice was received by the respondent-accused, the respondent-accused has not made the payment of cheque amount to the complainant-present appellant till date. Therefore, the complainant had filed the complaint under Section 138 of the Negotiable Instruments Act against the respondent-accused.
Thereafter the trial was conducted before the learned Magistrate. To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence. After considering the oral as well as documentary evidence, the learned Magistrate has acquitted the respondent-accused from the charges alleged against him by the judgment and order dated 04th December 2007.
Being aggrieved and dissatisfied with the said judgment and order dated 04th December 2007 passed by the learned Magistrate in Criminal Case No. 1247 of 2002, the appellant has preferred the above mentioned Criminal Appeal.
I have heard Mr. H.M. Parikh, learned counsel for the appellant. I have also gone through the papers and the judgment and order passed by the Trial Court.
Just to prove the case of the prosecution, prosecution has produced oral as well as documentary evidence. Heard Mr. H.M. Parikh, learned counsel for the appellant. He has taken me through the evidence of prosecution witnesses. He has vehemently argued that the learned Judge has not properly considered the oral as well as documentary evidence produced on record. He has also contended that learned Judge has made observation that another partner Mr. Rameshbhai Chandabhai Bharvad has not been joined as an accused with ulterior motive. Mr. Parikh has also contended that since the cheque in question was not issued by the partnership firm, but to discharge the liability of the partnership firm, the respondent-accused has issued the cheque from her personal account, partners of the partnership firm cannot be joined as an accused. He has also contended that the complainant has already proved his case beyond reasonable doubt before the learned Magistrate. He, therefore, contended that the judgment and order passed by the learned Magistrate is without appreciating the facts and evidence on record.
I have gone through the judgment of the Trial Court. I have also perused the reasons assigned by the learned Magistrate.
At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the Trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about 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 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.
Thus, it is a settled principle that while exercising appellate power, even 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.
Even in a recent decision of the Apex Court in the case of State of Goa Vs. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said 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 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.
Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, 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, reported in AIR 1981 SC 1417.
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.
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 before the Trial Court and also considered the submissions made by learned advocate for the appellant.
The Trial Court has, after appreciating the oral as well as documentary evidence, found that the complainant has failed to prove beyond reasonable doubt that cheque was issued in connection with the debt of the partnership firm. Even the prosecution has failed to produce any documentary evidence to prove that the cheque, which was issued by the respondent-accused in her personal capacity, was issued to pay up the debt of partnership firm. It is also observed by the learned Magistrate that the prosecution has failed to satisfy the main ingredient of Section 138 of the Negotiable Instruments Act. Thus, when prosecution has failed to satisfy Section 138 of the Act, assumption under Section 139 cannot be drawn. The Trial Court has observed that there are serious lacuna in the oral as well as documentary evidence of prosecution. Nothing is produced on record of this appeal to rebut the concrete findings of the Trial Court.
Thus, the appellant could not bring home the charges against the respondent-accused in the present appeal. The prosecution has miserably failed to prove the case against the respondent-accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
Learned counsel for the appellant is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Trial Court is vitiated by some manifest illegality or that the decision is perverse or that the Trial Court has ignored the material evidence on record.
In above view of the matter, I am of the considered opinion that the Trial Court was completely justified in acquitting the respondent-accused of the charges levelled against him. 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. Hence the appeal is hereby dismissed. Record and Proceedings to be sent back to the Trial Court, forthwith. Bail bonds, if any, shall stands cancelled.
(Z. K. Saiyed, J) Anup Top