Gujarat High Court
State Of Gujarat vs Narndrabhai Kanjibhai Kosambia & ... on 29 January, 2015
Author: K.J. Thaker
Bench: K.J.Thaker
R/CR.A/1313/1993 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1313 of 1993
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
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 ? No
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STATE OF GUJARAT....Appellant(s)
Versus
NARNDRABHAI KANJIBHAI KOSAMBIA & 1....Opponent(s)/Respondent(s)
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Appearance:
MS MONALI H BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
MR ADIL MEHTA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MR JM PANCHAL with MR GAJENDRA P BAGHEL, ADVOCATE for the
Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 29/01/2015
Page 1 of 14
R/CR.A/1313/1993 JUDGMENT
ORAL JUDGMENT
1. Heard learned Advocates for the parties.
2. Both the accused were charged under Section 409, 467 and 477(A) of the Indian Penal Code, whereas the accused No.2 was even charged with an Additional Section 114 of the Indian Penal Code. The offences were alleged to have been committed between 13.09.1982 to 31.12.1982.
3. We are in the year 2015. This Court cannot endlessly be waiting for the record and proceedings which might have been misplaced, destroyed or for whatever reason is not available with the learned Judge, the Trial Court or the Government Pleader's Office.
4. Be that as it may, both the accused have faced trial in Criminal Case No.1007/1989. The respondent No.2 was a Judicial Officer, aged 37 years at the time of filing of this Appeal and because of the mental trauma, he resigned and is Page 2 of 14 R/CR.A/1313/1993 JUDGMENT now no longer in service. The respondent No.1 is represented by learned Advocate Mr. Adil Mehta. The respondent No.1 is a Clerk of the Court, who has retired and who has been writing to this Court for getting his pensionary benefits because of the pendency of this Appeal since 1993 before this Court. All endeavours were made by my predecessors to see that the record and proceedings reach this Court, and those correspondences run into more than 100 pages.
5. The grounds on which judgment is challenged by the Appellant - State in this Appeal are as follows :-
i) That the judgment and order passed by the learned Chief Judicial Magistrate, Surat is against law and evidence on record.
ii) That the learned Magistrate has erred in holding that the prosecution has failed to prove its case against the respondent beyond reasonable doubt and acquitted the accused.
iii) That the learned Magistrate ought to Page 3 of 14 R/CR.A/1313/1993 JUDGMENT have held that once it is proved that the accused respondent have not credited the amount, it should be presumed that the accused have misappropriated the amount and committed the offence as aforesaid.
iv) That the learned Magistrate ought to have held that when the accused have paid the amount without identifying the concerned person, it is to be presumed that the accused committed offences u/s.
409, 467 and 477A of the Indian Penal Code.
v) The learned Magistrate has erred in discarding the evidence of prosecution witness and documentary evidence and acquitted the respondent from the offence charged as aforesaid.
vi) The learned Magistrate has erred in holding that the prosecution has failed to prove beyond reasonable doubt that accused No.2 abetted accused No.1 in committing the aforesaid offences.
vii) The learned Magistrate ought to have held that accused No.1 has misappropriated the amount of Rs.1819.80 ps. and converted the said amount for his personal use.
viii) The order of acquittal is otherwise Page 4 of 14 R/CR.A/1313/1993 JUDGMENT erroneous, improper and illegal.
6. The submissions of learned Additional Public Prosecutor Ms. Monali H. Bhatt are that the learned Judge accepted this fact that there was negligence on part of the accused and they could not have been acquitted more particularly, when the High Court on the administrative side had granted sanction to prosecute them. This fact according to learned Additional Public Prosecutor Ms. Monali H. Bhatt calls for interference by this Court under Section 378 of the Code of Criminal Procedure, 1973, when the judgment and order passed by the learned Magistrate is perverse.
7. Per contra, it is submitted by learned Advocate Mr. Adil Mehta that his client has not misappropriated within the meaning of Section 409 of the Indian Penal Code, nor has he indulged into any practice which could be said to be such which would fall within the purview of the Sections for which he was charged. Even while Page 5 of 14 R/CR.A/1313/1993 JUDGMENT giving the charge, the muddamals and records were examined and therefore, the learned Judge has not committed any error in acquitting his client.
8. Learned Advocate Mr. J.M. Panchal for the respondent No.2 has submitted that the learned Judge has also held that there was negligence but at the same time, it cannot be said that they have conspired or they have attracted the ingredients of Section 114 read with Section 409 of the Indian Penal Code read with offences for which the respondent/s were charged.
9. This Court has gone through the judgment of the learned Magistrate before this Court. Further, going through Paragraph 51 and more particularly, the finding of fact at Paragraph 56, where the complainant states that such matters were received as well as muddamal articles, it cannot be said that ingredients of Section 409 which reads as follows have been established by the prosecution.
409. Criminal breach of trust by public servant, or by banker, Page 6 of 14 R/CR.A/1313/1993 JUDGMENT merchant or agent - Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
10. This takes this Court to the other two Sections, i.e. 467 and 477(A) of the Indian Penal Code which reads as follows :-
"467. Forgery of valuable security, will etc. - Whoever forgets a documents which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or delivery any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery or any Page 7 of 14 R/CR.A/1313/1993 JUDGMENT movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
477-A. Falsification of accounts.
- Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroyes, alters, mutilates or falsifies any [book, electronic record, paper, writing], valuable security or account belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such [book, electronic record, paper, writing], valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
11. In view of the above, I am unable to persuade myself to take a different view than the one taken by the learned Magistrate, more particularly, when the Page 8 of 14 R/CR.A/1313/1993 JUDGMENT prosecution failed to establish that ingredients of these sections were attracted. Further, it cannot be said that the learned Judge or the concerned Clerk had in any way abated the commission of offences. More particularly, offences under Section 467 of the Indian Penal Code cannot be said to have been committed as there was no forgery of valuable security nor was there any falsification of accounts.
12. In a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran & Anr. reported in (2007) 3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In paragraph 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 Page 9 of 14 R/CR.A/1313/1993 JUDGMENT 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."
13. 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.
Page 10 of 14R/CR.A/1313/1993 JUDGMENT
14. Even in a recent decision of the Apex Court in the case of Mookiah and Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu (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 by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the 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 re appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on Page 11 of 14 R/CR.A/1313/1993 JUDGMENT 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 SCC 573]."
15. It is a settled legal position that in an acquittal appeal, the Appellate Court is not required to re-write the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. On the touchstone of these judgments, the principles enunciated therein go to show that the finding of fact recorded in the said paragraph of the impugned judgment cannot be said to be perverse and this view is based on facts. The prosecution having failed to prove the three main ingredients for bringing home the charge. In the instant case, this Court is in full agreement with the reasons given and Page 12 of 14 R/CR.A/1313/1993 JUDGMENT findings recorded by the trial Court while acquitting the accused and adopting the said reasons as well as the reasons aforesaid, in my view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage.
16. On the touchstone of the latest decision of the Apex Court and this Court as mentioned above, it cannot be said that the prosecution had satisfactorily brought home the charges levelled against the accused. It is not only a matter of time that this Court is taking this view, even a bare reading of the judgment reveals that the learned Judge has minutely dissected the evidence in its totality.
17. Hence, the impugned judgment and order dated 31.07.1993 passed by the learned Chief Judicial Magistrate, Surat in Criminal Case No.1077/1987 acquitting the respondents - accused is hereby confirmed. This Appeal is devoid of merits and stands dismissed. Bail and Bail Bond stands cancelled.
Page 13 of 14R/CR.A/1313/1993 JUDGMENT Sd/-
(K.J. THAKER, J.) CAROLINE Page 14 of 14