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2002 DIGILAW 214 (RAJ)

State of Rajasthan v. Jugal Kishore

2002-01-25

SUNIL KUMAR GARG

body2002
JUDGMENT 1. - This appeal has been filed by the State of Rajasthan against the judgment and order dated 17.1.1987 passed by the learned Judicial Magistrate, Loonkaransar camp Bikaner in Cr. Case No. 397/86 by which the learned Magistrate acquitted the accused-respondent for offence under section. 409 Indian Penal Code in the alternative Section. 379 Indian Penal Code. 2. This appeal arises in the following circumstances:- (i) On 26.1.1981, PW-2 Sundar Lal, Branch Manager, State Bank of Bikaner and Jaipur, Nokha lodged a written report Ex.P/24 at the Police Station, Nokha, Distt. Bikaner stating that on 12.11.1980, Shri R.K. Mittal PW-6, Head cashier of the branch went to Jaipur with the remittance of soiled and non issuable currency notes to the Reserve Bank of India, Jaipur Branch. The packets of soiled and non issuable notes of the Branch were being counted in RBI, Jaipur. On 12.12.1980, a shortage of Rs. 7,400/- (Rupees Seven Thousand Four Hundred only) was detected by RBI. Shri R.K. Mittal, PW-6 had gone to Jaipur with the remittance of cash and on detection of shortage gave the telegram on 12.12.1980 to the Branch Manager, Nokha Branch which was received on 13.12.1980. On receipt of the telegram, PW-2 Sundar Lal tried to find out as to by whom the packets in which the shortage has been detected, have been prepared and checked and stamped and who were the cashiers at the relevant time. PW-2 Sundar Lal also counted the cash in the running almirah and found 5 notes of Rs. 100/- each short in the packet prepared by accused-respondent and 5 notes of Rs. 100/- each short in a packet prepared by Shri B.D. Gehlot. The accused-respondent and Shri B.D. Gehlot were appointed as temporary cashier in the Nokha Branch. The accused-respondent had worked as temporary cashier from 7.8.1980 to 27.10.1980 and Shri B.D. Gehlot from 12.8.1980 to 4.11.1980. Both of them were entrusted with the cash receipt counter and had opinion over it. For payment of the aforesaid amount, the members of the Bank went to the house of accused-respondent and ultimately Rs. 9,000/- were deposited by the accused-respondent and he also admitted his guilt before PW-10 Shri Ram Prakash Chhabra. 3. That after usual investigation, the police submitted challan against the accused-respondent and one more accused B.D. Gehlot. 4. For payment of the aforesaid amount, the members of the Bank went to the house of accused-respondent and ultimately Rs. 9,000/- were deposited by the accused-respondent and he also admitted his guilt before PW-10 Shri Ram Prakash Chhabra. 3. That after usual investigation, the police submitted challan against the accused-respondent and one more accused B.D. Gehlot. 4. Vide order dated 2.9.1982 another accused B.D. Gehlot was discharged by the learned Judicial Magistrate and on the same day, charges were framed for offence under sections. 409 & 379 Indian Penal Code against the accused-respondent who pleaded not guilty and claimed trial. 5. During trial, as many as 12 witnesses were examined on behalf of the prosecution and statement of accused-respondent was recorded under section. 313 Criminal Penal Code and no witnesses was examined in defence. 6. After conclusion of the trial, the learned trial Magistrate acquitted the accused-respondent through his judgment and order dated 17.1.1987 inter alia holding that : (i) The confession Ex.P/6 made by the accused-respondent in presence of bank employees was not voluntary one as they got it written by the accused-respondent on the pretext that he would be saved by them and further more the persons before whom he admitted the guilt were the bank officers and, therefore, from this point of view extra-judicial confession is of no value. (ii) That the case of the accused-respondent is similar to the case of B.D. Gehlot who was discharged by the learned Judicial Magistrate. 7. Aggrieved from the said judgment and order this appeal has been filed by the State. 8. In this appeal, it has been argued by the learned Public Prosecutor that the findings of acquittal recorded by the learned Judicial Magistrate are erroneous one and therefore, this appeal should be allowed and the accused-respondent should be convicted for the offence charged against him. 9. On the other hand, the learned counsel for the accused-respondent submits that the judgment and order of the trial Magistrate are based on correct appreciation of evidence and the same do not call for interference by this Court. 10. I have heard both and perused the record. 11. 9. On the other hand, the learned counsel for the accused-respondent submits that the judgment and order of the trial Magistrate are based on correct appreciation of evidence and the same do not call for interference by this Court. 10. I have heard both and perused the record. 11. The report Ex.P/24 itself speaks that the accused-respondent deposited the amount before the report Ex.P/24 was lodged and his services were terminated and, therefore, in my considered opinion, if amount alleged to have been embezzled by the accused-respondent was deposited before instituting the case, he could not be convicted for offence under section. 409 Indian Penal Code. Since in this case the amount was deposited before the report Ex.P/24 was lodged, from this point of view also, the case of the prosecution cannot be said to have been proved. 12. The position of law with respect of hearing appeal against acquittal has been made clear by the Hon'ble Supreme Court in so many judgments and for that the important judgment of Ajit Samant v. State of Karnataka, reported in AIR 1997 SC 3251 may be referred to. 13. While hearing appeal against acquittal, no doubt the High Court possesses all the powers, but the High Court has to keep in view the fact that presumption of innocence is still available in favour of the accused and if the High Court on scrutiny of material available on record is of the opinion that there is another view which can reasonably be taken, then the view which favours the accused should be adopted. 14. In my considered opinion, the judgment of the learned Magistrate is based on correct appreciation of evidence and the reasons which has been assigned by, the learned Magistrate are reasonable and plausible and cannot be entirely and effectively dislodged or demolished and this Court sitting and hearing appeal against acquittal would not like to disturb the order of acquittal merely on flimsy grounds. 15. Since the learned Magistrate has arrived at the findings just quoted above and since they are based on correct appreciation of evidence, this Court should also give proper weight and consideration as the views of the trial Magistrate as to the credibility of the witnesses must be respected. 15. Since the learned Magistrate has arrived at the findings just quoted above and since they are based on correct appreciation of evidence, this Court should also give proper weight and consideration as the views of the trial Magistrate as to the credibility of the witnesses must be respected. Apart from this, the Court should be very slow in disturbing the findings of facts arrived at by the learned trial Magistrate as the Magistrate had advantage of seeing the witnesses and even if two reasonable conclusions can be drawn on evidence on record, the High Court should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the Court below.For the reasons mentioned above, the present State appeal is dismissed after confirming the judgment and order dated 17.1.1987 passed by the learned Judicial Magistrate Loonkaransar Camp Bikaner.Appeal dismissed. *******