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Gujarat High Court · body

2011 DIGILAW 540 (GUJ)

State of Gujarat v. Ketan Amrutlal Shah

2011-07-15

M.D.SHAH

body2011
Judgment M.D. SHAH, J.—Criminal Revision Application No. 626 of 2010 has been filed by the State-original complainant under Section 397 read with Section 401 of the Code of Criminal Procedure and under Section 482 of the Code of Criminal Procedure seeking to quash and set aside judgment and order dated 19-10-2010 passed in Criminal Appeal No. 18 of 2008 by the learned Addl. Sessions Judge, 3rd Fast Track Court, Ahmedabad (Rural) at Mirzapur whereby judgment and order of acquittal dated 7-6-2008 passed in Criminal Case No. 10056 of 2007 by the learned Chief Judicial Magistrate, Ahmedabad (Rural) at Mirzapur, was confirmed. 2. Whereas Criminal Revision Application No. 57 of 2011 has been filed by the original accused under Section 397 read with Sec.401 of the Code of Criminal Procedure being aggrieved and dissatisfied with the judgment and order dated 18-1-2011 passed in Criminal Appeal No. 70 of 2010 by the learned Addl. Sessions Judge and Fast Track Court No. 2, Ahmedabad (Rural), Mirzapur, confirming the judgment and order dated 24-12-2010 passed in Cri. Misc. Appln. No. 1776 of 2010 by the learned Chief Judicial Magistrate, Ahmedabad (Rural) at Mirzapur rejecting the application to release the muddamal. 3. Since both the revisions arise out of common facts and the parties thereto are also the same, they were heard together and are being decided by this common judgment. 4. The facts in nutshell are that in pursuance of a trial being conducted consequent upon filing of charge sheet for having filed a complaint registered as C.R. No. 201 of 2007 with Satellite Police Station for the offences punishable under Sections 406, 420, 465, 467, 468, 471, 120(B) and 114 of IP Code alleging that the accused in collusion with each other prepared fake ATM cards by taking details of the bank account holders and siphoned off huge amount from the bank, the accused were acquitted by learned Chief Judicial Magistrate, Ahmedabad (Rural) at Mirzapur vide judgment and order dated 7-6-2008. The appeal being Criminal Appeal No. 18 of 2008 preferred by the State before the Sessions Court against the said judgment and order of acquittal was dismissed by the learned Addl. Sessions Judge, 3rd Fast Track Court, Ahmedabad (Rural) at Mirzapur vide judgment and order dated 19-10-2010. Both these judgments and orders are under challenge in Criminal Revision Application No. 626 of 2010. 5. Sessions Judge, 3rd Fast Track Court, Ahmedabad (Rural) at Mirzapur vide judgment and order dated 19-10-2010. Both these judgments and orders are under challenge in Criminal Revision Application No. 626 of 2010. 5. On having acquitted at the end of trial, the original accused preferred Cri. Misc. Appln. No. 1776 of 2010 before the learned Chief Judicial Magistrate for release of muddamal seized in Criminal Case No. 10056 of 2007. However, said application was rejected by the learned Chief Judicial Magistrate, Ahmedabad (Rural) vide order dated 24-12-2010 as above referred Cri. Revision Appln. No. 626 of 2010 filed in this Court by the original complaint was pending for final disposal. Feeling aggrieved by the said order, appeal being Criminal Appeal No. 70 of 2010 preferred by the accused before the Sessions Court was also rejected by the learned Addl. Sessions Judge and Fast Track Court No. 3, Ahmedabad (Rural), Mirzapur, which is giving rise to prefer Criminal Revision Application No. 57 of 2011 by the accused. 6. Heard learned advocate, Ms. S.M. Ahuja for the original accused, learned APP, Mr. L.R. Pujari for the respondent-State and learned advocate, Mr. A.S. Asthawadi for the original accused-Shyamal Subhashbhai Patel. This Court has gone through order passed by the trial Court as well as the appellate Court. 7. It appears from both the judgments passed by the trial Court as well as the appellate Court that prosecution has failed to prove the charges against the original accused. It was rightly observed by both the Courts below that it is the case of the prosecution that the accused withdrew the amount by using fake ATM card from the ATM centre. However, nothing has come on record to show that the accused have received any amount from any ATM centre of any bank by using this fake ATM card. Therefore, no loss occurred to any bank. It was also rightly held by the appellate Court at the time of appreciating the evidence that while watching the CD of recorded portion from CCTV camera, movement of the accused was found but the alleged insertion or usage of fake ATM card by the accused was not found. It was also rightly observed that prosecution has failed to establish direct connection of the accused with the alleged crime. It was also rightly observed that prosecution has failed to establish direct connection of the accused with the alleged crime. Though important muddamals such as the machine used for preparing fake ATM cards, CD for loading the programme in said machine were seized during the course of investigation, they were not sent for FSL examination. No satisfactory explanation has been putforward by the prosecution as to why these muddamals were not sent for FSL analysis making the prosecution to fail. In view of the above, the accused were rightly acquitted by the trial Court. The appellate Court on appreciation of evidence confirmed the said judgment and order of acquittal. No illegality or irregularity has been committed by both the Courts requiring interference by this Court in revision. 8. Reliance is placed on a decision of the Apex Court reported in (2010) 2 Supreme Court Cases page 190 in the case of Sheetala Prasad and Others vs. Sri Kant and another, wherein it has been held Para 12 as under: “12. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant— (1) where the trial Court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial Court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial Court or the appellate Court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law.” 9. In view of the principles laid down as aforesaid, since the case of the applicant-State, original complainant, is not falling in any of the five categories carved out by the Hon’ble Apex Court in the above reported judgment, Criminal Revision Application No. 626 of 2010 requires to be dismissed. 10. In view of the principles laid down as aforesaid, since the case of the applicant-State, original complainant, is not falling in any of the five categories carved out by the Hon’ble Apex Court in the above reported judgment, Criminal Revision Application No. 626 of 2010 requires to be dismissed. 10. As far as Criminal Revision Application No. 57 of 2011 filed by the original accused for return of muddamal is concerned, it appears that the Courts below have rejected the application for return of muddamal in view of pendency of Criminal Revision Application No. 626 of 2010 before this Court. Now since this Court has held that said revision requires to be dismissed, the accused are entitled to get back the muddamal as per the judgment and order passed by the trial Court. 11. Thus, Criminal Revision Application No. 626 of 2010 is dismissed. Rule is discharged. 12. Criminal Revision Application No. 57 of 2011 is, however, partly allowed. It is hereby ordered that the original accused are entitled to get the muddamal as per the judgment and order dated 7-6-2008 passed by the learned Chief Judicial Magistrate, Ahmedabad (Rural), at Mirzapur in Criminal Case No. 10056 of 2007. Rule is made absolute only to the aforesaid extent. 13. This Court is taking serious note of the investigation carried out by the Investigating Officer. Though the machine used for preparing ATM cards were seized from the hotel, Investigating Officer did not send the same with CDs containing data for FSL examination. Apart from that, though the muddamal articles were seized and attached under panchnama in presence of panchas, they were not properly sealed and panch slips with signatures of panchas were not properly affixed on respective muddamal articles by the Investigating Officer. Thus, it appears that the investigating Officer has not carried out the investigation in a proper manner creating serious doubt in the mind of the Court. 14. Records and proceedings are ordered to be sent back to the Courts below forthwith. 15. Office shall keep a copy of judgment in each matter.