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2010 DIGILAW 69 (GUJ)

State of Gujarat v. Ganpatbhai Kantibhai Patel

2010-02-10

Z.K.SAIYED

body2010
JUDGMENT : Z.K. Saiyed, J. The appellant-State of Gujarat has filed this Appeal under Section 378(1)(3) of Cr. P.C. against the Judgment and order of acquittal dated 31.03.2003 passed by learned Chief Judicial Magistrate, Ahmedabad (Rural), in Criminal Case No. 2331 of 1998, whereby the respondent-accused has been acquitted from the charges levelled against him. 2. The brief facts of the prosecution case is that the respondent-accused was serving as Manager in the Fertilizer Department of Viramgam Taluka Sales & Purchase Sangh (herein after referred to as "the Sangh). It is alleged that under the instruction of the District Registrar, the audit of the said Sangh was made and the Auditor has found that during the period from 1.4.1992 to 31.3.1994 the accused, by forging and tampering the official records and documents, has misappropriated the amount of Rs. 2,51,889.85 and has also committed permanent misappropriation to the tune of Rs. 67,001.86 paise. Therefore, the complainant was instructed to file complaint against the accused for the alleged breach and illegality committed by the accused, and thereby the complaint has been filed against the accused-respondent herein for the offences punishable under Sections 406, 408, 409 and 477-A of I.P. Code, which came to be numbered as Criminal Case No. 2331 of 1998. 3. Thereafter, the trial was proceeded against the respondent-accused in the Court of learned Magistrate. To prove the case against the respondent-accused, the prosecution has examined the witnesses and also produced documentary evidence. And at the end of trial, after recording the statement of accused under Section 313 Cr.P.C. and after hearing the parties, the learned Magistrate has acquitted the respondent-accused from the charges levelled against him, vide judgment under challenge. 4. Being aggrieved by and dissatisfied with the said Judgment and order passed by the learned Magistrate, the appellant-State has filed present Appeal. 5. Learned Public Prosecutor, appearing on behalf of the appellant, has contended that the Judgment and order of trial Court is against the provisions of law. The trial Court has not properly appreciated the facts and evidence led by the prosecution and looking to the provisions of law itself it is clearly established that the prosecution has proved the whole ingredients of offence against the respondent. Learned PP has also contended that the accused has also made a confessional statement before the Auditor about the alleged breach committed by him. Learned PP has also contended that the accused has also made a confessional statement before the Auditor about the alleged breach committed by him. He has also contended that from the charge itself, it is established that the respondent-accused was serving in the firm and he was entrusted and was having dominion over the property and he has confessed before the Auditor that he has committed criminal breach of trust. Learned PP has also taken this Court through the oral as well as documentary evidence. 6. Mr. Karanjit Vadodaria, appearing for Mr. Amin, learned Counsel for the respondent-accused has vehemently contended that the prosecution has failed to prove the ingredients of criminal breach of trust as stipulated in Section 405 of I.P. Code and when the ingredient of section 405 od I.P. Code is not proved, then the prosecution has failed to prove its case beyond reasonable doubt. 7. I have perused the oral as well as documentary evidence. I have also considered the submissions made by the learned Public Prosecutor as well as the learned Advocate, appearing for the respondent-accused. It is true that the accused has made a statement before the Auditor, but, it cannot be said that by said statement the accused himself has confessed the alleged breach committed by him. In the said statement it was also not mentioned by the accused that the alleged amount was used by him or by some others. When this Court has put a specific query to the learned PP as to under which provisions of Law the Auditor has any power to record the so called confessional statement of the accused and whether the Auditor is empowered to record the said so called confessional statement, the learned PP is unable to give answer to the query raised by this Court. I have also gone through the ingredient of Section 405 of I.P. Code. The said Section 405 of I.P. Code is reproduced, as under : "405. I have also gone through the ingredient of Section 405 of I.P. Code. The said Section 405 of I.P. Code is reproduced, as under : "405. Criminal breach of trust-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust". Learned Public Prosecutor is unable to show as to under which provision of law the statement of the accused was recorded by the Auditor. Even he is unable to show as to under which provision of Evidence Act the said statement can be considered as "confessional statement". When the main ingredient of Section 405 of I.P. Code is not proved by the prosecution, then the whole charge can be washed out by the oral as well as documentary evidence which is produced on the record. 8. So far as so called confessional statement which is read over by the learned Public Prosecutor is concerned, it is established law by the Hon'ble Apex Court that the evidence of confessional statement is a weakest evidence and it cannot be considered without any corroboration. From the oral as well as documentary evidence which is produced on record the learned PP is unable to say that the said statement is fully corroborated by other evidence and the same is a reliable piece of evidence. Learned PP has also relied upon a decision of the Hon'ble Apex Court in the case of "Shiva Karam Payaswami Tewar v. State of Maharashtra", reported in AIR 2009 SC 1692 . The facts of the case before the Hon'ble Apex Court are different than the facts in the present case. In the present case when the prosecution is unable to prove the ingredient of Section 405 of I.P. Code, then in that case the accused cannot be held guilty for the offences alleged against him. Therefore, the decision cited above, would be of no avail in the present case. 9. In the present case when the prosecution is unable to prove the ingredient of Section 405 of I.P. Code, then in that case the accused cannot be held guilty for the offences alleged against him. Therefore, the decision cited above, would be of no avail in the present case. 9. I have gone through the Judgment and order passed by the trial Court and have also perused the oral as well as documentary evidence produced before me and also considered the submissions made by the learned Advocates. The trial Court has clearly observed that looking to the evidence of complainant (Exh.8), he is a formal complainant. He has no personal knowledge about the alleged breach of trust committed by the accused. The evidence of other witnesses also do not support the case of the prosecution. The trial Court has also found that the evidence of Auditor is not helpful to the case of prosecution. The trial Court has also observed that the Auditor is not empowered to record the statement of the witnesses. Thus the prosecution has failed to establish the main foundation or base of the offence alleged against the respondent. The prosecution has failed to establish entrustment or dominion over the property by the respondent-accused nor the fact of dishonest misappropriation nor the conversion of the property for his own use. Further, the so called confessional statement has no evidentiary value in the eyes of law and the same is not supported by independent, legal and trustworthy evidence. On going through the Judgment and order passed by the trial Court and the papers placed before me, I am of the opinion that the trial Court has not committed any error in not believing the case of the prosecution. I find that the findings recorded by the trial Court are absolutely just and proper and in recording the said findings no illegality or infirmity has been committed by it. The learned Judge has rightly come to the conclusion that the prosecution has miserably failed to prove the case against the respondent-accused. 10. Thus, in my opinion, looking to the evidence on record, from the evidence itself it is it clearly established that the prosecution has not proved its case beyond reasonable doubt. 11. The learned Judge has rightly come to the conclusion that the prosecution has miserably failed to prove the case against the respondent-accused. 10. Thus, in my opinion, looking to the evidence on record, from the evidence itself it is it clearly established that the prosecution has not proved its case beyond reasonable doubt. 11. At the out-set it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Hon'ble Apex Court in catena of decisions. Thus, the powers which this Court may exercise against an order of acquittal are well settled. Thus, in case the appellate Court agrees with the reasons and the findings given by the lower Court, then the discussion of evidence is not necessary. 12. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Court below and hence find no reason to interfere with the same. Hence, the Appeal is hereby dismissed. 13. In view of above the Appeal is dismissed. The Judgment and order dated 31.3.2003 passed by the learned Chief Judicial Magistrate in Criminal Case No. 2331 of 1998 is hereby confirmed. Bail bond, if any, shall stands cancelled. Appeal dismissed.