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2012 DIGILAW 1519 (BOM)

Goa Shipyard Limited v. Suresh Chandra Sharma

2012-08-10

A.P.LAVANDE

body2012
Judgment : By this appeal, the appellant/complainant takes exception to the Judgment and Order dated 23rd July, 2008, passed by the Judicial Magistrate, First Class, at Vasco-da-Gama, Goa whereby the complaint against the accused has been dismissed and the accused acquitted. 2. The complainant filed the above referred complaint under Section 630 of the Companies Act, 1956, alleging that the accused who was working as in-charge of complainant's Liaison Office at New Delhi had not accounted for Rs. 2,49,774=83. Process was issued against the accused and substance of accusation was explained to the accused on 23.4.2007. 3. In Criminal Case No.99/N/2002/B, the complainant examined three witnesses, namely PW. 1 Ram Asur, PW.2 Srinivas Samavedam and PW.3 Sunil Prasad Yadav. Besides, the oral evidence of the three witnesses, the complainant also tendered voluminous documents to prove the offence under Section 630 of the Companies Act. 4. Statement of the accused under Section 313 of Cr.P.C. was recorded. The accused did not lead any defence evidence. 5. The learned Magistrate, by Judgment and Order dated 23rd July, 2008 acquitted the accused of the offence charged. 6. I have heard learned Counsel for the parties at some length. Perusal of the record and the judgment discloses that while recording the finding of acquittal, learned Magistrate has not referred to several documents relied upon by the complainant. Moreover, in paragraph 29 of the impugned Judgment and Order, learned Magistrate has observed that the prosecution has failed to prove that the amount as claimed was entrusted to the accused beyond reasonable doubt and has proceeded to acquit the accused. 7. Mr. Dessai, learned Senior Counsel appearing for the appellant submitted that considering the approach of the learned Magistrate and the fact that the Magistrate had not made reference to several relevant documents while recording findings against the complainant, it would be just and proper to remand the matter for fresh decision, after giving an opportunity of being heard to both sides. 8. Per contra, Mr. Mendes appearing for the respondent, conceded that learned Magistrate has not made reference to several relevant documents. Mr. Mendes fairly submitted that the Magistrate ought to have considered whether the complainant had proved its case against the accused on preponderance of probabilities as in a civil case. However, Mr. 8. Per contra, Mr. Mendes appearing for the respondent, conceded that learned Magistrate has not made reference to several relevant documents. Mr. Mendes fairly submitted that the Magistrate ought to have considered whether the complainant had proved its case against the accused on preponderance of probabilities as in a civil case. However, Mr. Mendes submitted that since this is an appeal against acquittal in respect of a complaint filed in the year 2009, it would be just and proper that the appeal is decided on merits by this Court. 9. I find merit in the submission of Mr. Dessai. No doubt, in an appeal against acquittal, the Appellate Court is entitled to review the entire evidence and arrive at an independent conclusion on the basis of the evidence led by the parities, but in the present case, it is noticed that the complainant has relied upon voluminous documentary evidence and, therefore, it was expected of the learned Magistrate to critically analyse not only the oral evidence, but also the documentary evidence for the purpose of recording a finding either of acquittal or of conviction against the accused. Moreover, as rightly submitted by Mr. Mendes, learned Magistrate, though was dealing with a complaint filed under Section 630 of the Companies Act, ought to have decided the matter on the preponderance of probabilities and not on the touchstone of proof beyond reasonable doubt, as is normally done in a criminal matter, inasmuch as it is settled law that the complainant in a complaint under Section 630 of the Companies Act has to prove its case on the touchstone of preponderance of probabilities as in a civil matter. However, in the present case, the approach of the learned Magistrate seems to be like one in a normal criminal matter where the test is proof beyond reasonable doubt for recording conviction of an accused. 10. I, therefore, deem it appropriate to quash the Judgment and Order dated 23rd July, 2008, passed by the Judicial Magistrate, First Class, at Vasco-da-Gama, Goa and remand the matter to the learned Magistrate to pass a fresh Judgment and Order, after giving an opportunity of being heard to the complainant and the accused. 10. I, therefore, deem it appropriate to quash the Judgment and Order dated 23rd July, 2008, passed by the Judicial Magistrate, First Class, at Vasco-da-Gama, Goa and remand the matter to the learned Magistrate to pass a fresh Judgment and Order, after giving an opportunity of being heard to the complainant and the accused. The learned Magistrate to examine the oral and documentary evidence led by the complainant in the light of the cross examination of the accused and record a finding as to whether the complainant has proved its case on the touchstone of preponderance of probabilities, as in a civil suit, against the accused. 11. In the result, therefore, the impugned Judgment and Order dated 23rd July, 2008, passed by the Judicial Magistrate, First Class, at Vasco-da-Gama, Goa is set aside and the matter remanded to the learned Magistrate to pass a fresh Judgment and Order in the light of the observations made herein above. All the contentions on merits of the rival parties are kept open. Appeal stands disposed of. No order as to costs. 12. Parties to appear before the learned Magistrate on 10th September, 2012 at 10.00 a.m.