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Gujarat High Court · body

1995 DIGILAW 25 (GUJ)

STATE OF GUJARAT v. MAFATLAL NATHUBHAI NAYAK

1995-01-17

J.N.BHATT

body1995
J. N. BHATT, J. ( 1 ) THIS appeal under Sec. 378 of the Code of Criminal procedure, 1973 (the Code for short) is directed against the order of acquittal passed by the learned Chief J. M. F. C. Mehsana in Chief case No. 31 of 1983 passed on 30-7-1988. ( 2 ) IN order to appreciate the merits of this appeal, a few relevant and material facts may be stated first. ( 3 ) THE prosecution case is that the respondent who is the original accused was working as an Honorary Secretary of the Mehsana Telephone Engineering Division employees Co-operative Society, Mehsana at the relevant time during the period 1977-78. He was writing accounts and was incharge of the account books and the record of the said society. He had misappropriated a total amount of Rs. 3,715/ - with an intention to use the said amount for himself. He had misappropriated the aforesaid amount of the members of the said society. It is also alleged that the accused had also fabricated the documents, wrote false accounts and had misappropriated the amount of loan. It was his duty to write accounts and to recover the amount from the members of the society and to credit the said amount in the account books of the society. ( 4 ) THE complaint was lodged by the original complainant Keshavlal Maganlal patel before the Mehsana police that the accused had misappropriated the amount of Rs. 1,16,110. 00. He had of course repaid an amount of Rs. 50,000. 00 towards misappropriated amount. The account books of the society were audited and report was made to the complainant. Therefore, he had made the complaint. The misappropriated amount was spread over a period of four years from 1977-78 to 1980-81. Four charge sheets were filed by the police after the investigation covering misappropriation of each year. Thus, four cases were instituted against the accused in the Court of the learned Chief J. M. F. C. , Mehsana bearing Chief cases Nos. 31/ 83, 32/83, 33/83 and 34/83. In all the cases, the accused was charged for having committed offences punishable under Secs. 409, 465, 467, 471, 477-A of the I. P. Code. ( 5 ) ON appreciation of the facts and circumstances and the evidence on record, the trial Court acquitted the accused of all the charges levelled against him on 30- 7-1988. In all the cases, the accused was charged for having committed offences punishable under Secs. 409, 465, 467, 471, 477-A of the I. P. Code. ( 5 ) ON appreciation of the facts and circumstances and the evidence on record, the trial Court acquitted the accused of all the charges levelled against him on 30- 7-1988. Thus, the accused came to be acquitted of all the charges in all the four cases. The State of Gujarat has preferred the four acquittal appeals under Sec. 378 of the Code against the accused. Four criminal appeals Nos. 906 to 909 of 1988 are filed challenging the acquittal orders passed by the trial Court in four criminal cases Nos. 31/83, 32/83, 33/83 and 34/83 respectively. ( 6 ) IN this appeal, the amount allegedly misappropriated is of Rs. 3,715. 00. In the present appeal, the charge in relating to the period of 1977-78. The charge was framed at Ex. 7 on 11-7-1984. The accused pleaded not guilty. The prosecution relied on the evidence of the complainant Keshavlal Maganlal Patel and other witnesses. On appreciation of the facts and circumstances and the evidence on record, the trial court found the accused not guilty and acquitted him of all the charges levelled against him. Hence, this acquittal appeal against the acquittal order of the accused. ( 7 ) LEARNED APP, Mr. Dave has taken this Court through the entire record and evidence relied on by the prosecution. However, he has not been able to convince the Court to take a different view and to interfere with the acquittal recorded by the trial Court against the accused. The trial Court has observed that the prosecution has not been able to prove the culpability of the accused for the offences punishable under Secs. 409, 465, 467, 471 and 477a of the I. P. Code. In light of the facts and circumstances and the evidence emerging from the record of the present case, the view taken by the trial Court cannot be said to be improbable or unreasonable. Merely because this Court, can take a different view, that by itself is not a ground for interference with the acquittal order which is passed on appreciation of evidence which is also probable and possible. Merely because this Court, can take a different view, that by itself is not a ground for interference with the acquittal order which is passed on appreciation of evidence which is also probable and possible. ( 8 ) NO doubt, the prosecution has, successfully, proved that the respondentaccused was working as an Honorary secretary of the said society during the period of 1977-78 to 1980-81. However, the trial Court, on appreciation, found that the prosecution has not been able to prove that the accused was the only responsible person for writing of accounts and for monetary transactions and keeping the balance. The trial Court has also observed that the prosecution has failed to prove that the accused has misappropriated the alleged amount for his personal use. The allegation of writing of false accounts and fabrication of the documents is also held not proved by the trial Court, with the result, the accused came to be acquitted from all the charges levelled against him. ( 9 ) THE trial court has considered the evidence of the complainant Keshavlal meganlal Patel who was examined at Ex. 9. The complainant succeeded the accused in the office. The complainant has admitted in his evidence that he has no personal knowledge about the allegations levelled against the accused. He has also admitted that there is no resolution of the society that the accused being the Honorary Secretary at the relevant time of the society, was only responsible for writing accounts, keeping accounts for dealing with monetary transactions of the society during the relevant period. It is also admitted by him that how the management and administration of the society was run at the relevant time, is not known to him. The complainant has further admitted that he had never entrusted any amount or documents to the accused. Thus, the evidence of the complainant does not prove the charges against the accused. In fact, his evidence does not take the prosecution case any further. ( 10 ) PROSECUTION witness Kantilal Chaturdas is examined, at Ex. 29, P. W. Bhuderbhai Ramjibhai, is examined, at Ex. 37, P. W. Arvindkumar Amratlal is examined, at Ex. 38, and P. W. Ganpatbhai Punjabhai is examined, at Ex. 40. It is very clear from the evidence of these witnesses that the management of the society was in charge of the President, Secretary and other executive members. 29, P. W. Bhuderbhai Ramjibhai, is examined, at Ex. 37, P. W. Arvindkumar Amratlal is examined, at Ex. 38, and P. W. Ganpatbhai Punjabhai is examined, at Ex. 40. It is very clear from the evidence of these witnesses that the management of the society was in charge of the President, Secretary and other executive members. The financial transactions were also done by the office bearers. The witnesses have thus admitted that the management and administration including the financial transactions had been conducted not only by the Secretary, but also by the President, Secretary and other office bearers as per their convenience and availability of time. The allegation of the witnesses that different amounts were given to the accused, as a secretary of the society is not substantiated by the receipts. No. receipt was obtained and insisted by the witnesses from the accused. It is also very clear from the evidence that relevant account books and financial transactions were not only done by the accused but other office bearers including the president of the society. Therefore, the prosecution has not been able to show that the accused was the only person who was in charge of writing accounts and dealing with financial transactions of the society at the relevant time. Four witnesses out of six have admitted that the amounts given by them to the accused at different intervals came to be credited in their accounts but were not correspondingly entered in the cash book. No witness has produced the cash receipts. The hand writings of the accused are not proved beyond reasonable doubt. Resolution of the society is not produced. On the contrary, it is very clear from the evidence of the prosecution that there was no resolution of the society whereby the accused alone and nobody else was to deal with the accounts and keep them at the relevant time. In the circumstances, the trial Court has taken the view that the prosecution has not been to prove the charges levelled against the accused for the offences punishable under Secs. 409, 465, 467, 471 and 477a of I. P. Code and, therefore, the accused is acquitted from the said charges by the learned Chief j. M. F. C. Mehsana on 30-7-1988. The view taken by the trial Court has not been successfully impugned by the prosecution. 409, 465, 467, 471 and 477a of I. P. Code and, therefore, the accused is acquitted from the said charges by the learned Chief j. M. F. C. Mehsana on 30-7-1988. The view taken by the trial Court has not been successfully impugned by the prosecution. The view taken by the trial Court is not shown to be unreasonable, improbable or illegal. ( 11 ) IT is a settled proposition of law that in an acquittal appeal, the appellate court should not disturb the findings of the trial Court merely on the ground that another view is possible. In Babu v. State of U. P. AIR 1983 SC 308 , the Apex court has held that in an appeal against acquittal, the finding reached by the trial court should not be disturbed only on the ground that another view is possible. The apex Court in Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 , in para 9 has clearly held that when two views or conclusions are possible on the assessment of the evidence on record the finding of the court acquitting the accused should not be disturbed. The Supreme Court has relied on the following two decisions: 1. S. H. Hemkar v. State of Mahrarashtra, AIR 1974 SC 1157. 2. Bhimsing v. State of Mahrarashtra, AIR 1974 SC 298. ( 12 ) THE material ingredients attracting the rigours of Secs. 409, 465, 467, 471 and 477a of the I. P. Code are also not established in the present case. Having regard to the facts and circumstances and due evidence on record, the views and the findings recorded by the trial Court while passing the acquittal order are not shown to be unreasonable, improbable, perverse or illegal. Therefore, according to the settled proposition of law, it would not be appropriate to disturb the finding and reverse the acquittal merely because another view is possible. ( 13 ) SINCE this Court agrees generally with the view of the trial Court, it would not be necessary to reiterate the reasons recorded by the trial Court. This proposition is also very well settled. The Supreme Court in State of Karnataka v. Hemareddy, AIR 1981 SC 1417 has observed that no detailed reasons in appeal confirming the view of the trial Court are necessary or required. This proposition is also very well settled. The Supreme Court in State of Karnataka v. Hemareddy, AIR 1981 SC 1417 has observed that no detailed reasons in appeal confirming the view of the trial Court are necessary or required. The Supreme Court also followed the view taken by it in Girija Nandini Devi v. Bijendra Narain Nandini Choudhary, AIR 1967 SC 1124 . Therefore, it would not be necessary to reiterate the reasons, recorded by the trial Court. Nothing is successfully shown which would warrant interference of this Court in this acquittal appeal. In light of the facts and circumstances narrated hereinabove and considering the relevant legal set up, this court is left with no alternative but to dismiss this appeal. Accordingly, it is dismissed. .