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2002 DIGILAW 363 (GUJ)

STATE OF GUJARAT v. BHOGENDRAPRASAD D. PANDYA

2002-04-26

RAVI R.TRIPATHI

body2002
RAVI R. TRIPATHI, J. ( 1 ) THIS appeal is filed under Section 378 of the Criminal Procedure Code against the judgement and order passed by the Ld. Sessions Judge, Kutch at Bhuj dated 19. 5. 1993 in Criminal Appeal No. 15 of 1992 arising from the judgement and order of the Ld. Judicial Magistrate First Class, Naliya in Criminal Case No. 100 of 1985. The respondent-original accused was charged of an offence under Section 409 and 406 of the Indian Penal Code alleging that during 30. 4. 1984 to 30. 8. 1984 when the accused was serving as Talati cum Mantri of Village Chadura, after having recovered the government amount did not deposit the same in time, according to the rules and had thus committed temporary misappropriation of Rs. 1397. 39 ps. ( 2 ) LD. Judicial Magistrate First Class, Naliya by his judgement and order dated 15. 2. 1992 was pleased to hold that the respondent-original accused is guilty of the offence under Section 409 Indian Penal Code and awarded simple imprisonment for 1 year and fine of Rs. 2000. 00 and in default simple imprisonment for 3 months. Being aggrieved of that, the respondent-original accused preferred an appeal before the Ld. Sessions Judge being Criminal Appeal No. 15 of 1992 wherein the Ld. Sessions Judge, Bhuj was pleased to hold that the Ld. Judicial Magistrate First Class, Naliya has erred in convicting the accused of the offence with which he was charged. The Ld. Sessions Judge was pleased to allow the appeal quashing and setting aside the order of conviction and punishment and he further ordered that the amount of fine if paid be refunded to the accused. The Ld. Sessions Judge was pleased to pass an order that the documents produced by the accused along with his statement under Section 313 of the Indian Penal Code be transferred to `c file which were ordered to be kept in `d file by the Ld. Judicial Magistrate First Class. ( 3 ) LD. Additional Public Prosecutor Shri K. T. Dave invited the attention of this court to the judgement and order of the Judicial Magistrate first Class, Naliya and also that of the Learned Sessions Judge, Bhuj. Mr. Dave, Ld. APP assailed the judgement and order of the Ld. Additional Sessions Judge by saying that the Ld. ( 3 ) LD. Additional Public Prosecutor Shri K. T. Dave invited the attention of this court to the judgement and order of the Judicial Magistrate first Class, Naliya and also that of the Learned Sessions Judge, Bhuj. Mr. Dave, Ld. APP assailed the judgement and order of the Ld. Additional Sessions Judge by saying that the Ld. Judge having recorded in Para 9 that, `taking into consideration the entire evidence placed on record, a fact clearly emerges that the amount recovered by the accused was not deposited according to the rules. Mr. Dave submitted that the Learned Judge has also erred in observing that `there is no evidence on the record that the said amount did not lie in the office of the accused and that `there is no evidence on record to establish that the amount was used by the accused for his personal use and that `such an act was committed intentionally and dishonestly. Mr. Dave submitted that the Learned Judge ought not to have accepted the defence put forward by the accused that, `he had fallen sick and therefore, he could not deposit the amount in time, and deposited later on. ( 4 ) ON the other side, Ld. Advocate Mr. Supehia submitted that in view of the decision of this court in the matter of Ladhabhai Khimji Sangar v. State of Gujarat reported in 1980 GLT Page 368 and also in view of the decision of the Apex Court in the matter between Janeshwar Das Aggarwal v. State of Uttar Pradesh reported in AIR 1981 SC 1646 , the Learned Sessions Judge was right in holding that , `the conviction recorded by the Ld. Judicial Magistrate First Class, Naliya is not in accordance with law and that, `the same is required to be quashed and set aside. He submitted that the same has been rightly quashed and set aside by the Ld. Sessions Judge. ( 5 ) HAVING gone through the evidence on record and the judgement and order of the Learned Sessions Judge, this Court is in full agreement with the reasoning given by the Learned Sessions Judge in allowing the appeal and holding that the accused cannot be held guilty of the offence. Sessions Judge. ( 5 ) HAVING gone through the evidence on record and the judgement and order of the Learned Sessions Judge, this Court is in full agreement with the reasoning given by the Learned Sessions Judge in allowing the appeal and holding that the accused cannot be held guilty of the offence. This Court is also in agreement with the reasoning of the Learned Sessions Judge set out in Para 12 of the judgement wherein the Learned Sessions Judge was pleased to observe that, `under Exh. 96 - a Yadi, the Ld. Magistrate had directed PSI, Naliya to take appropriate action regarding the Medical Certificate produced by the accused before the Court. In the said yadi, it was mentioned that the court (Court of the Ld. JMFC) had felt that the said medical certificate was produced only with a view to get out of the liabilities arising from the act committed by the accused. The Court of Ld. Judicial Magistrate First Class had felt that the accused had committed an offence under Section 472 of the Indian Penal Code and therefore, necessary investigation in that regard be carried out perusing the record of the Primary Health Centre, Nalia and a report be made to the Court of Ld. Judicial Magistrate First Class and if it found that the accused had committed a criminal act, appropriate chargesheet be filed against him. The matter was adjourned to 16. 1. 92. The Learned Sessions Judge has also observed that in the record, no report made by PSI, Naliya is found. Thereafter, on 15. 2. 92, the Ld. JMFC has delivered the judgement wherein the accused is held guilty of the offence alleged against him. The Learned Sessions Judge then proceeded to observe that, `on perusal of the Rojkam, it is found that on 12. 12. 91, Yadi-Exhibit 96 was written and the matter was kept for further argument on 16. 1. 92. Taking into consideration the aforesaid facts, the Ld. Sessions Judge has observed that "from this entire proceedings an impression is gathered that before hearing the arguments in toto on 12. 12. 91, the Ld. JMFC had come to the conclusion that certificate produced by the accused was only with a view to get rid of the lability arising from his criminal act and has thus committed an offence under Section 471 of the IPC. 12. 91, the Ld. JMFC had come to the conclusion that certificate produced by the accused was only with a view to get rid of the lability arising from his criminal act and has thus committed an offence under Section 471 of the IPC. In view of the aforesaid observations, the Ld. Sessions Judge was pleased to allow the appeal. ( 6 ) IN view of the judgement of the Honourable Apex Court in the matter of Girijanandini Devi and others V. Bijendra Narain Choudhary reported in AIR 1967 Supreme Court 1124, wherein it is held as under:-"12. . . . It is not the duty of the appellate Court when it agrees wih the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice. "relying on the aforesaid judgement, this Court does not deem it necessary to discuss the matter in detail. ( 7 ) IN view of the aforesaid discussion, the present appeal is dismissed. .