Jharkhand High Court
Bhikha Bhai Patel vs State Of Bihar And Anr. on 13 June, 2003
Equivalent citations: [2003(3)JCR216(JHR)]
Author: Hari Shankar Prasad
Bench: Hari Shankar Prasad
JUDGMENT Hari Shankar Prasad, J.
1. This revision is directed against the order dated 24.9.1996 passed in G.R. No. 1249/82, whereby the learned Judicial Magistrate, Ist Class, Daltonganj acquitted O.P. No. 2, who was an accused in that case.
2. The prosecution case in brief is that the petitioner as informant lodged an FIR on 17.9.1982 against O.P. No. 2 for the offence under Section 406 of the Indian Penal Code (hereinafter to be referred as 'Code') for committing, criminal breach of trust. The petitioner who is informant in the case was a manager of J.B. Company, Rehala and O.P. No. 2, against whom FIR was lodged, was working as driver since long and he used to deliver goods in different godowns of the company and likewise he went to Katihar office with Tobacco bundles in the truck. On 13.9.1982 O.P. No. 2 became seriously ill, thereafter he stopped the truck in the way in between Sankha and Ketat and went for taking medicine and the truck was brought back to the office and two packets were recovered containing Rs. 7,000/- in cash and draft of Rs. 2,500/-. O.P. No. 2 accused was conveyed to meet the informant but he disobeyed; thereafter one Chiman Bhai was sent to Katihar office and when he returned on 17.9.1982 gave him a letter then he came to know that cost of Rs. 1,17,539/- draft and other papers, which were given by Katihar office, was not given and Rs. 7,000/- in cash was in the truck and he took Rs. 1,17,539/-. O.P. No. 2 accused was charged under Section 406 of the Code, which he denied and trial proceeded and in the course of trial the learned Court below came to a finding on the, basis of oral and documentary evidence that charge under Section 406 of the Code has not been proved against the O.P. No. 2 accused and accused was acquitted.
3. Judgment of the teamed Court below was assailed on the ground that PWs have corroborated the statement and proved the case that O.P. No. 2 has committed the offence under Section 406 of the Code. The prosecution witnesses have supported the case but the case ended in acquittal. The judgment was also assailed on the ground that Mahabir Sharma, driver and Khalasi of the truck were not examined and no paper was produced on behalf of the prosecution showing entrustment of the amount to the opposite party No. 2 and these are flimsy grounds for justifying the acquittal. The judgment was also assailed on the ground that number of witnesses is not necessary for arriving at a conclusion in favour of the prosecution but it is the quality of witnesses and not the number of witnesses which should be taken into consideration and further that conviction can be based on the solitary evidence of a witness but in the instant case all these facts have been overlooked by the learned Trial Court. The judgment was also assailed or the ground that facts, which are admitted, need not be proved and, therefore, when the opposite party No. 2 did not deny that he was not an employee of J.B. Company, Rahla, therefore, production of documentary evidence and so called letter, which was sent from place of departure, cannot be a ground for acquittal. Non-examination of IO cannot be another ground for acquittal of the opposite party No. 2.
4. On the other hand, the opposite party No. 2 appeared in the case through vakalatnama.
5. The learned counsel appearing for the petitioner, submitted that there is sufficient evidence in the case, by which accused-opposite party No. 2 could have been convicted but the learned Court below ignored that evidence and passed an order of acquittal. It was also pointed out that opposite party No. 2, who is accused in the case, was an employee of J.B. Company, Rehla where the informant was acting as Manager and opposite party No. 2 accused has not denied that he was not an employee of that company and, therefore, he has accepted that he was in employment at the relevant point of time and, therefore, whatever allegations were levelled against him, he has accepted those allegations and, therefore, the learned Court below should have come to a conclusion otherwise than to the conclusion which the learned Court below has arrived at and should have convicted the opposite party No. 2 accused. It was also pointed out that entrustment of money was made to opposite party No. 2 accused and he pretended that he is suffering from some disease and brought the vehicle from the place of departure but before reaching the destination he contended that he had developed some trouble and, therefore, he left the vehicle and the vehicle was plied by another driver and from the vehicle some papers and cash amount were found. It was further pointed out that in revision there is scope for appreciation of evidence.
6. On the other hand, learned counsel appearing for the opposite party No. 2 accused, submitted that in revision against acquittal the jurisdiction of the High Court is very limited and it cannot re-appreciate the evidence. It was further contended that High Court can interfere in revision against acquittal only in extraordinary circumstances and when it finds that there is perversity and as a result of non-interference there will be miscarriage of justice then only High Court can interfere and in the instant case there is no scope for interference by the High Court because learned Court below has come to a finding that charges under Section 406 of the Code have not been proved and the learned Court below has assigned reasons for coming to such a finding. It was also pointed out that from the very beginning it will appear that case was based on a very weak point and there is only oral evidence and not documentary evidence, although there was a correspondence but no papers of correspondence have been proved and, therefore, when there is a documentary evidence that documentary evidence should be brought on record and that documentary evidence has not been brought on record and, therefore, learned Court below has come to a correct finding.
7. I have gone through the judgment and also gone through the evidence of witnesses. The settled principle of law is that the jurisdiction of the High Court in revision against acquittal is very limited but High Court has got Jurisdiction to interfere where extraordinary circumstances exist and when it is held that there is perversity and as a result of non-interference there will be miscarriage of justice and in that situation the High Court can Interfere in revision. In the instant case ingredients of Section 406 of the Code have not been proved as learned Court below has come to a finding that entrustment of money to the opposite party No. 2 accused has not been proved and there is no documentary evidence that a sum of Rs. 1.00 lac and odd was given to this man. The learned Court below has also come to a finding that paper or letter, which was written by the Manager, J.B. Company, Katihar Branch to the Manager, J.B. Company, Rehla Branch and that letter has not been produced, which could have thrown some light on the matter. For proving the case under Section 406 of the Code, it is necessary for the prosecution to prove entrustment of money but here there is only a vague statement that a sum of Rs. 1.00 lac and odd was given to the opposite party No. 2. Further the register, which shows that a sum of Rs. 1.00 lac and odd was given to the opposite party No. 2, has not been brought on record and the learned Court counsel failed to show any extraordinary circumstances or that there will be miscarriage of justice if High Court does not interfere in this revision and no such ground has been made out by the learned counsel for the petitioner. The learned counsel for the petitioner also failed to point out the illegality or perversity in the judgment and merely saying that the learned Court below has n