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2011 DIGILAW 114 (GUJ)

Saharbhai Ishwarbhai Desai v. State of Gujarat

2011-02-22

Z.K.SAIYED

body2011
JUDGMENT : Z.K. Saiyed, J. By way of present appeal filed under Section 378 of the Code of Criminal Procedure, 1973, the appellant has challenged the Judgment and Order of acquittal dated 28th July 2000 passed by the learned 6th Joint Civil Judge (S.D.) and Judicial Magistrate First Class, Ahmedabad (Rural), in Criminal Case No. 310 of 1998 for the offences punishable under Section 138 of the Negotiable Instruments Act, whereby the learned Magistrate has acquitted the respondent No.2-accused of the charges levelled against him by giving benefit of doubt. 2. The short facts of the prosecution case is that the appellant herein and the respondent No.2-accused are of the same caste and therefore, they knew each other. It is also the case of the complainant that the respondent No.2-original accused told the appellant herein that he has suffered huge loss in business and if some financial arrangement could not be done, his business will be closed for ever and also asked the appellant to help him. It is further the case of the appellant that on the promise and faith given by the respondent No.2-accused, on 26th November 1997, the appellant had given Rs. 7,30,000/- (Rupees Seven Lacs Thirty Thousand Only) in cash to the respondent No.2-accused, which the respondent No.2-accused had collected from the house of the appellant. It is also the case of the appellant-complainant that a Compromise Deed to the said effect was also executed before Notary Public between the present appellant-original complainant and the respondent No.2-original accused. Pursuant to the said Compromise Deed, the respondent No.2-accused had given a cheque of Rs. 4,00,000/- bearing No.008251 dated 01st January 1998 drawn on Nutan Nagrik Sahakari Bank Limited to the present appellant. When the said cheque was deposited by the present appellant with his Bank, i.e. State Bank of India, Navrangpura Branch, the said cheque was dishonoured and returned on 03rd January 1998 with endorsement "Funds Insufficient". It is also the case of the appellant that when he informed the respondent No.2-accused about dishonour of cheque, the respondent No.2-accused gave faith and promise to the appellant to deposit the cheque once again. Therefore, once again the appellant deposited the said cheque with his Bank, again the said cheque dishonoured and returned with endorsement "Funds Insufficient". Thereafter, when the appellant personally met the respondent No.2-accused and asked about his money, the respondent No.2-accused not given proper answer. Therefore, once again the appellant deposited the said cheque with his Bank, again the said cheque dishonoured and returned with endorsement "Funds Insufficient". Thereafter, when the appellant personally met the respondent No.2-accused and asked about his money, the respondent No.2-accused not given proper answer. It is further the case of the appellant that therefore, the appellant issued statutory notice dated 20th January 1998 under Section 138 of the Negotiable Instruments Act to the respondent No.2-accused through his advocate. The said notice was sent through Registered Post A.D. as well as through UPC. The said notice was duly served upon the respondent No.2-accused on 22nd January 1998, but the respondent No.2-accused has neither replied the said notice nor the respondent No.2-accused has given the cheque amount to the appellant. Thus, the respondent No.2-accused has committed offence under Section 138 of the Negotiable Instruments Act. Therefore, criminal complaint was filed against the respondent No.2-accused in the Court of learned 6th Joint Civil Judge (S.D.) and Judicial Magistrate First Class, Ahmedabad (Rural) under Section 138 of the Negotiable Instruments Act. 3. Thereafter the trial was conducted before the learned Magistrate. To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence. After considering the oral as well as documentary evidence, the learned Magistrate has acquitted the respondent No.2-accused from the charges alleged against him by his Judgment and Order of acquittal dated 28th July 2000. 4. Being aggrieved and dissatisfied with the said Judgment and Order of acquittal dated 28th July 2000 passed by the learned 6th Joint Civil Judge (S.D.) and Judicial Magistrate First Class, Ahmedabad (Rural), in Criminal Case No.310 of 1998, the appellant hereinabove, has preferred the above mentioned Criminal Appeal. 5. I have heard Mr.M.M. Tirmizi, learned counsel appearing on behalf of the appellant and Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent No.1-State. I have also gone through the papers produced before me and the Judgment and Order passed by the learned Magistrate. 6. Mr.Tirmizi, learned counsel for the appellant, has contended that the Judgment and Order of acquittal passed by the learned trial Judge is not proper, legal and it is erroneous. He has also argued that the learned trial Judge has not properly considered the evidence of the witnesses. 6. Mr.Tirmizi, learned counsel for the appellant, has contended that the Judgment and Order of acquittal passed by the learned trial Judge is not proper, legal and it is erroneous. He has also argued that the learned trial Judge has not properly considered the evidence of the witnesses. He has argued that only on the ground that notice is not served upon the respondent No.2-accused and it is not proved and not exhibited, the learned Judge has passed the order of acquittal. He has contended that from the oral evidence of the witness, the prosecution has proved his case beyond reasonable doubt against the respondent No.2-accused. He, therefore, contended that the order of acquittal passed by the learned trial Judge is without appreciating the facts and evidence on record and is required to be quashed and set aside by this Hon'ble Court. 7. It is a settled legal position that in 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. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents-accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no interference by this Court. Hence, this appeal requires to be dismissed. 8. Even in a recent decision of the Apex Court in the case of State of Goa Vs. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. 9. 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. 10. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 10. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 Supreme Court 1417. 11. Thus, in case the Appellate Court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary. 12. I have gone through the order of acquittal passed by the learned trial Judge. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned counsel. 13. The trial Court has, after appreciating the oral as well as documentary evidence, observed that prosecution has failed to prove the contents of the statutory notice. Even the prosecution has also failed to prove service of the notice to the respondent No.2-accused. Even the said notice is also not exhibited. It is also observed by the learned trial Judge that as per ingredient of Section 138 of the Negotiable Instruments Act, it is mandatory for the appellant to prove the contents of the statutory notice. It is also observed by the learned Magistrate that the prosecution has failed to prove beyond reasonable doubt the ingredient of Section 138 of the Negotiable Instruments Act. The trial Court has observed that there are serious lacuna in the oral as well as documentary evidence of prosecution. Nothing is produced on record of this appeal to rebut the concrete findings of the Trial Court. 14. Thus, the appellant could not bring home the charges against the respondent No.2-accused in the present appeal. The prosecution has miserably failed to prove the case against the respondent No.2-accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. 15. 14. Thus, the appellant could not bring home the charges against the respondent No.2-accused in the present appeal. The prosecution has miserably failed to prove the case against the respondent No.2-accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. 15. Mr.Tirmizi, learned counsel for the appellant, is not in a position to show any evidence to take a contrary view in the matter or that the approach of the trial Court is vitiated by some manifest illegality or that the decision is perverse or that the trial Court has ignored the material evidence on record. 16. In above view of the matter, I am of the considered opinion that the trial Court was completely justified in acquitting the respondent No.2-accused of the charges levelled against him. 17. 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. 18. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the trial Court and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. The Judgment and Order of acquittal dated 28th July 2000 passed by the learned 6th Joint Civil Judge (S.D.) and Judicial Magistrate First Class, Ahmedabad (Rural), in Criminal Case No.310 of 1998 is hereby confirmed. Bail bond, if any, shall stands discharged. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. Appeal dismissed.