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2011 DIGILAW 582 (GUJ)

Bhupendrabhai Punjabhai Patel v. State of Gujarat

2011-08-02

Z.K.SAIYED

body2011
ORDER : Z.K. Saiyed, J. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 21.4.2009 passed by the learned 8th Additional Senior Civil Judge and Judicial Magistrate First Class, Nadiad, in Criminal Case No.1786 of 2007, whereby the accused has been acquitted from the charges leveled against him. 2. The brief facts of the prosecution case are as under: 2.1 Present appellant - complainant was having an account with Santram Bank at Nadiad. Against the said deposits at Santram Bank, which were under various schemes, a certificate was issued in the name of the present appellant and his family members amounting to Rs. 3 Lacs, on maturity date, the amount would have fetched to the tune of Rs. 4 Lac. The respondent No.2 - accused issued a cheque No.482710 in favour of the present appellant on 25.12.2006 of Rs. 2,86,447/of Indian Bank, Nadiad. The said cheque was deposited with Bank of Baroda, Narsanda Branch on 17.1.2007, which was returned back with the endorsement of "Insufficient Fund" on 23.1.2007. After following due process like notice, the appellant filed complaint under Section 138 of the Negotiable Instruments Act against the accused. The same was registered as Criminal Case No.1786 of 2007 before the learned 8th Additional Senior Civil Judge and Judicial Magistrate First Class, Nadiad. 2.2 Necessary investigation was carried out and statements of several witnesses were recorded. The trial was initiated against the respondent No.2 accused. 2.3 To prove the case against the present accused, the prosecution has examined 1 witness and on behalf of defence side, three witnesses have been examined and also produced various documentary evidence. 2.4 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence side, the trial Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 21.4.2009. 2.5 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant has preferred the Criminal Appeal No.49 of 2009 before the Sessions Court, Nadiad. After considering the record of the case, the learned Additional Judge and Presiding Officer, 2nd Fast Track Court, Nadiad vide order dated 15.6.2010 disposed of the Appeal on the ground that the Sessions Court has no jurisdiction to adjudicate the Appeal. 3. After considering the record of the case, the learned Additional Judge and Presiding Officer, 2nd Fast Track Court, Nadiad vide order dated 15.6.2010 disposed of the Appeal on the ground that the Sessions Court has no jurisdiction to adjudicate the Appeal. 3. It is contended by learned advocate Ms. Jyoti Mehta for Mr. Vijay Patel, learned advocate for the appellant, that the judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondent. Learned advocate has also taken this court through the oral as well as the entire documentary evidence. She further submitted that there are major contradictions between the deposition of Narhari Reva Shanker of defence witness and his crossexamination. Said witness deposed that he had given cheque to the appellant without any knowledge of respondent No.2 - accused and he also deposed that there was no legal outstanding of the respondent No.2. This witness admitted in his cross-examination that he was only accountant of respondent No.2 - accused and he never issued any cheque without instructions of respondent No.2. Even the said witness did not produce accounts, which were called upon. Learned advocate also read the complaint and oral evidence of complainant at Exhibit 12 and documentary evidence. She also submitted that learned Judge has not considered both the evidence. The accused has examined three witnesses and produced documentary evidence, but the learned trial Judge has wrongly considered the oral evidence of the defence side and has discarded the documentary and oral evidence of the complainant. Therefore, the learned trial Judge has committed grave error in acquitting the respondent No.2 - accused. She also prayed to allow this Appeal by quashing and setting aside the judgment and order passed learned trial Court. 4. Learned APP Mr. Jani submitted that in this matter, the State is a formal party and he has only assisted the Court. 5. Heard both the sides and perused the judgment and order passed by the trial Court. I have also perused the contents of Exhibit 41, certificate issued by the bank to the complainant and Exhibit 17 Cheque. 4. Learned APP Mr. Jani submitted that in this matter, the State is a formal party and he has only assisted the Court. 5. Heard both the sides and perused the judgment and order passed by the trial Court. I have also perused the contents of Exhibit 41, certificate issued by the bank to the complainant and Exhibit 17 Cheque. From the deposition and crossexamination of complainant at Exhibit 12, it clearly proves that the complainant has failed to prove legal dues against the accused. It appears from the admission of the complainant that he had no fixed deposits in his his own name. From Exhibit 41, the certificate, it clearly appears that appellant - complainant has no locus standi to file the complaint. Learned trial Judge has also considered the issue and the fixed deposits in the bank, wherein there were name of Vinitkumar, Jalpaben, Nishaben and Snehalben, who are family members of the complainant. Therefore, there is no ground on which the complainant has claimed that he has evidence to say that the said amount, which would be recovered from the accused, by way of this complaint, his legal dues. Learned trial Judge has also observed in para 19 of his judgment that in the cross-examination of the complainant, it was asked to the complainant that whether the complainant has any evidence of outstanding amount against the accused and the complainant replied that there is only cheque for which the complaint was lodged. Therefore, it is clear that the complainant has no right to file the complaint against the accused as there was no legal dues against the accused. 6. In a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran & Anr., Reported in (2007) 3 SCC 755 , the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under: "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 7. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs v. 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. 8. It is also a settled legal position that in acquittal appeal, the appellate court is not required to rewrite the judgment or to give fresh reasonigns, 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 v. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under: "This court has observed in Girija Nandini Devi v. Bigendra Nandini Chaudhary, AIR 1967 SC 1124 that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 9. 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. 10. I have gone through the judgment and order passed by the trial court. 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. 10. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned advocate for the appellant. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. 11. Ms. Jyoti Mehta, learned advocate is not in a position to show any evidence to take a contrary view of 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. 12. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. 13. 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. 14. 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 reasons to interfere with the same. Hence the appeal is hereby dismissed. Bail bond, if any, stands cancelled. Record and proceedings to be sent back to trial Court, forthwith.