Gujarat High Court
State Of Gujarat vs Sukhlal Nathalal Rathod on 11 December, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 685 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
SUKHLAL NATHALAL RATHOD
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Appearance:
MR. UTKARSH SHARMA, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
ADVOCATE NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 11/12/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1 Though served, nobody appeared for the respondent
- original accused.
2 The State has come in appeal under Sec.378 of the Page 1 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined Code of Criminal Procedure, 1973, against the judgement and order of acquittal passed by the learned Special Judge & Additional Sessions Judge, Jamnagar, in Sessions Case No. 06 of 1995 on 27.04.2000. By the aforesaid judgement and order, the Trial Court has acquitted the respondent - accused for offences punishable under Secs. 409, 465, 467, 468, 472, 471, 477(A) of Indian Penal Code and under Sec.7 of the Essential Commodities Act, 1955. 3 Brief prosecution case is as under:
3.1 The accused was running a Government approved essential commodity shop for which he was holding a license. He committed criminal breach of trust and forged the documents with regards to entitled supplies for the month of December-1991 instead of November-1991 i.e. on 12.12.1991. The stock was lifted without proper permission on the basis of false and fabricated documents by putting signature and seal of the Mamlatdar. The Mamlatdar Office sold the stock of November-1991 in the Page 2 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined month of December-1991.
3.2 The accused therefore committed breach of conditions no.2,5,7,8 and 22 and committed offence punishable under Secs. 409, 465, 467, 468, 472, 471, 477(A) of IPC and u/s. 7 of the Essential Commodities Act, 1955.
3.3 Upon committal of the case to the Hon'ble Sessions Court, Jamnagar, the learned Sessions Judge, framed charges vide Exh.4 against the respondent-accused for the aforesaid offences. The respondent-accused pleaded not guilty and was tried. The prosecution has examined 8 witnesses and also produced various documentary evidence before the learned Trial Court. The details of the evidence led by the prosecution are reproduced in a tabular form hereunder:
ORAL EVIDENCES PW Exh. Pg Name and particulars Judgement/ Pg.
No. No No. No.
1 7 33 Ashoksinh Zala- Dy.Mamlatdar acted in view Para-9, Pg.125
of authority and directions of superiors had no Page 3 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined personal knowledge of incident. 2 10 59 Dinesh Nathalal-Brother of the accused-Does not support prosecution case. 3 11 61 Mohanbhai Panchabhai - Essential Para -11, pg.147 Commodities shop owner, Haripar Village- Does not give any relevant evidence.
4 13 65 Deepsinh Banesingh - PSO, Lalpur Police Para-11-12,
Station. pg.147-149
5 15 71 P.D.Joshi-H.C., Lalpur Police Station admits Para-13,
that did not investigate the signatures by pg.149-151
seeking expert assistance or recorded sttement of Mamlatdar 6 17 77 Arunkumar Desai-Supplies Inspector- deposes Para - 14, with regards to statement of accused pg.153 7 20 111 Girdharlal Agtani - Mamlatdar, Lalpur on Para-15, 08.01.1992 - deposes with regards to pg.155-159 signature not being his on the documents used to procure commodities - no statement before police and accepts that no expert evidence is adduced with regards to signatures. 8 23 119 Bhasker Bhatt- Dist Supplies Officer- admits Para -19 pg.161 no process for verification of signatures.
DOCUMENTARY EVIDENCES Exh Pg.No. Particulars No. 4 17 Charge 8 35 Collector's order to initiate criminal proceedings. 9 41 Police Complaint 12 63 Mohanbhai's statement before Supplies Inspector 14 67 Station Diary 18 81 Statement of Dinesh Rathod before Supplies Inspector 19 87 Documents with seal and signature 21 115 Notice to accused 22 117 Statement of accused before Mamlatdar. 24 123 Show-Cause Notice Page 4 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined 25 127 Reply of accused before Dist.Supply Officer. 3.4 Thus, prosecution had examined the complainant, witnesses, Mamltadar and other officers and the police witness, which according to the prosecution have brought home the charge in support of their case. The prosecution also relied upon documentary evidences in support of the oral evidence led by them before the Trial Court. At the end of the evidence, necessary pursis was presented before the learned Trial Court declaring closure of evidence. The learned Trial Court has thereafter proceeded to record further statement of the accused under Sec.313 of the Code of Criminal Procedure. With such evidence being noticed, the learned Trial Court after evaluating the same arrived at a conclusion that prosecution has failed to prove the charge against the respondent-accused and has thereby recorded acquittal. 4 In view of the aforesaid facts and circumstances, this acquittal appeal has been preferred by the appellant- State. The brief details of the witnesses and documentary Page 5 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined evidence as discussed by the learned Trial Court is as under:
4.1 The Trial Court has considered the overall case and the deposition of numerous witnesses, including the officers serving in the office of the Collector, the Trial Court has held that there cannot be said to be sufficient evidence documentary or otherwise to convict the accused of the alleged offence, more particularly when no panch witness has been examined and the signature and the seal has not been found to be forged and fabricated in view of lack of any expert evidence in that context.
4.2 Moreover, the Trial Court has also not thought it fit to rely upon the statement given before authorities by the accused as it could not be independently established that the contents of the statement are not by way of any force or recorded by the accused without any pressure.
5 We have independently examined the judgement and Page 6 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined order of the Trial Court and the evidence minutely. One Ashoksinh Sajubha Zala, Exh.7, has been examined as Prosecution Witness No.1. He was working as a Deputy Mamlatdar (Supplies) and he, according to the order of the Collector to lodge a complaint against the original accused had filed the complaint. The complaint is at Exh.9. Reading of the evidence of Ashoksinh Zala would indicate that in his cross-examination he has admitted that he had presented the complaint before the police and except that he has no knowledge about the incident in question. Therefore, no value can be attached to this witness's evidence.
5.1 The prosecution also examined the brother of the accused, Dinesh Nathala at Exh.10, who had turned hostile. One Mohanbhai Panchabhai, Prosecution Witness No.3, at Exh.11, has been examined. What turns out from his testimony is that there was a fair price shop at village Haripar and he was the fair price shop owner where the residents of the village Aarikhana would also come as Page 7 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined there was no fair price shop at Aarikhana. It was thereafter, that the accused was given the agency to run the fair price shop at Aarikhana. This witness also, therefore, would not lead any evidence in respect of charge against the accused that the accused had committed criminal breach of trust and forged the documents with regard to his entitlement to supplies for the month of November 1991, which he lifted only in December 1991 on the basis of false and fabricated documents and by putting a signature and seal of the Mamlatdar.
5.2 The Investigating Officer, Pravinchandra Joshi, was examined at Exh.15. He was entrusted with the investigation under the Essential Commodities Act. Reading of the evidence of this Investigating Officer and the cross-examination would indicate that according to the prosecution, the accused had not only forged the signatures of the Mamlatdar, but had created rubber stamp of the office. Closer scrutiny of the cross- Page 8 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025
NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined examination of this witness indicates that the Investigation Officer made no attempt to secure the sample signatures of the accused so as to undertake their scrutiny through the opinion of the handwriting expert. Even knowing that the case was with regard to forging of signatures of the Mamlatdar, no questions were put to the Mamlatdar, nor did he take any statement of the Mamlatdar whose signatures the accused is stated to have forged.
5.3 Not only has the Mamlatdar not been examined, but no officer or employee of the Office of the Mamlatdar has been examined or statements of such individuals recorded. These omissions in the investigation led the Trial Court to come to the conclusion that the charge of forging of documents and cheating levelled against the accused could not be proved.
5.4 The District Civil Supplies Officer, Arunkumar Desai was examined at Exh.17. According to him, he carried out the checking of the fair price shop on the instructions of Page 9 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined the Mamlatdar. The accused was not present at the time when the shop was searched. The younger brother of the accused, Dinesh, was present at the shop. The Trial Court, on examination of the evidence of Shri Arunkumar found that even if the testimony of this officer is accepted, there is no document to show that the lifting of the stock of November 1991 in December 1991 was done by cheating or by fraudulent means. No questions were put to him on the forging of signatures or creating of false stamps.
5.5 Based on scrutiny of the evidence of these witnesses, the Trial Court found that it could not be proved beyond doubt that the accused lifted the stock of November 1991 in December 1991 by creating forged documents or stamps and by signing of such documents. Particularly, when these documents with forged signatures as per the prosecution case were never sent for examination at the hands of the handwriting expert, the basic case that the signatures were forged, fell flat. Page 10 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025
NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined 6 We are, therefore, in complete agreement with the judgement and order of the Sessions Court in acquitting the accused - respondent of the offences for which he was charged.
7 Scope of appeal against acquittal is well laid down in case of Chandrappa and ors. vs. State of Karnataka reported in (2007) 4 SCC 415, it was observed:
"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate 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 curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an Page 11 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined 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 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."
8 Even recently, the Apex Court in the case of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka [(2024) 8 SCC 149] has held as under:
"39. This Court in the case of Rajesh Prasad v. State of Bihar and Another, (2022) 3 SCC 471 encapsulated the legal position covering the field after considering various earlier judgments and held as below: -
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal Page 12 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined against an order of acquittal in the following words: (Chandrappa case [ Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] " 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, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise 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 Page 13 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined 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."
40. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: -
"8.1.The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the Page 14 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-
41.1 That the judgment of acquittal suffers from patent perversity;
41.2 That the same is based on a misreading/omission to consider material evidence on record;
41.3 That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
42. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
9 Considering these set of evidences on record and in Page 15 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025 NEUTRAL CITATION R/CR.A/685/2000 JUDGMENT DATED: 11/12/2024 undefined light of the latest decisions of the Apex Court as reproduced hereinabove, which deals with the law on acquittal, we are of the opinion that no error has been committed by the learned Additional Sessions Judge, Jamnagar in acquitting the respondent.
10 The appeal is accordingly dismissed. Resultantly, the impugned judgment and order of the trial court is hereby confirmed. Bail bond, if any, shall stand cancelled.
Record and proceedings, if called for, be sent back to the concerned Trial Court forthwith.
(BIREN VAISHNAV, J) (MAULIK J.SHELAT,J) BIMAL Page 16 of 16 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Jan 02 2025 Downloaded on : Fri Jan 03 21:49:28 IST 2025