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2012 DIGILAW 1733 (PNJ)

Khushal Chand Vohra v. Gajinder Kumar Vohra

2012-12-04

JASBIR SINGH, RAMESHWAR SINGH MALIK

body2012
Rameshwar Singh Malik, J.— The instant application under Section 378 (4) of the Code of Criminal Procedure ( Rs.Cr. P. C. ' for short), has been filed by the applicantcomplainant, seeking leave to file appeal against the impugned judgment dated 24.12.2010 passed by the learned Special Judge, Gurdaspur, whereby the accused-respondents were acquitted of the charge framed against them. The applicant has also filed Crl. Misc. No. 25117 of 2011 under Section 5 of the Limitation Act, seeking condonation of delay of 37 days in filing the application under Section 378(4) Cr. P. C. Before proceeding further, it is pertinent to note at the very outset that during the pendency of this application, Gajinder Kumar Vohra (respondent No. 1) died on 17.12.2011. An affidavit of Navjot Singh, Deputy Superintendent of Police City, Gurdaspur, was filed with a request for placing on record the death certificate of Gajender Kumar Vohra-respondent No. 1 and the same was taken on record. When the case came up for hearing on 18.7.2012, the application for grant of leave to file appeal and also the application for condoning the delay of 37 days in filing the application under Section 378 (4) Cr. P. C. were ordered to be dismissed qua Gajender Kumar-respondent No.1.In view of the order dated 18.7.2012, these applications survive only against respondent Nos. 2 and 3. The criminal law was set into motion by the applicantcomplainant by moving an application Ex. PW8/A before the Senior Superintendent of Police, Gurdaspur with the allegations that the accused have committed the offence in question. However, in order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the facts as noticed by the learned trial Court, which read as under:- “Shri Khushal Chand, complainant, moved an application Ex. PW 8/A before the Senior Superintendent of Police, Gurdaspur stating therein that he was owner of M/s K. K. Rice Mills, Dera Baba Nanak. Several cases regarding family property were pending between him and his brother Gajinder Kumar, accused. PW 8/A before the Senior Superintendent of Police, Gurdaspur stating therein that he was owner of M/s K. K. Rice Mills, Dera Baba Nanak. Several cases regarding family property were pending between him and his brother Gajinder Kumar, accused. He alleged that his brother Gajinder Kumar got changed daily diary report dated 18.04.2004 of Police Station Kalanaur in connivance with the Police Station Staff in order to harass him, but he (Gajinder Kumar) did not know that a copy of the daily diary report is kept in the VRK branch of the office of Senior Superintendent of Police, after same being singed by Deputy Superintendent of Police. Now Gajinder Kumar, had come to know about this fact and he intend to change copy of the DDR in the office of SSP. He also threatened that he would get his work done by using his influence. That enquiry be got conducted regarding circumstances under which daily diary report dated 18.04.2004 was changed and case be registered. An enquiry was conducted by Superintendent of Police (H), Gurdaspur, who vide his report Ex. A-4 found that complainant are three brothers. Lalit Vohra is the elder and reside at Sikandrabad. Gajinder Vohra is younger to the complainant and reside at Amritsar. There father, named, Dharm Pal Vohra was a commission agent and he also sold land. His work was looked after by Gajinder Kumar. Dharam Pal died on 03.06.2004. A sum of Rs. 85 lacs came to the share of the complainant, out of the cash and gold, which was with accused Gajinder Kumar, and Gajinder Kumar issued a cheque of Rs. 85 lacs of Punjab National Bank, Dera Baba Nanak in favour of the complainant. Gajinder Kumar and Sita Devi signed the cheque. That cheque was dishonored. Complainant filed a case against them in the Court at Gurdaspur and the said persons were released on bail. During enquiry, daily diary register dated 18.04.2004 of Police Station Kalanaur was summoned, having three pages and 36 entries were made. Entry No. 13 was made regarding misplacement of three cheques on the basis of an affidavit on behalf of Gajinder Kumar. During enquiry, daily diary register dated 18.04.2004 of Police Station Kalanaur was summoned, having three pages and 36 entries were made. Entry No. 13 was made regarding misplacement of three cheques on the basis of an affidavit on behalf of Gajinder Kumar. Superintendent of Police (H) called lqbal Singh No. 380, who was posted as MHC at P. S. Kalanaur, who told that the first and third page of daily dairy register dated 18/19/04/2004 was written in the hand of LC Gurdip Singh No. 206 and page no. 2 on which report nos. 13 to 22 are written, including report no. 13 regarding misplacing of three cheques, are not in his hand or in the hand of any person, who was working under him. HC lqbal Singh further told that he sent duplicate copies of the entries through Gazetted Officer to VRC and VRK branch. That he handed over the charge of the daily diary register to HO Bajlit Singh No. 279. That there is no affidavit of Gajinder Kumar in the record and report no. 13 do not bear his signature. HC Sawar Singh, who was in the VRK Branch, told that the duplicate copy of the said report is not traceable in the VRK branch. Accused Prem Nath admitted before him that about 2-3 months back, at the instance of Gajinder Kumar, he got entered a false report in the daily diary register after paying Rs. 20,000/- to MHO Baljit Singh. Amrik Singh, Chairman, Market Committee Kalanaur also told that about 2 1/2 months back he came to Police Station Kalanaur were Prem Nath was also present, who told that he had come to lodge a report regarding loss of cheques of Gajinder Kumar. SI/SHO Lakhbir Singh of Police Station Kalanaur made a statement that HO Baljit Singh admitted before him that he in collusion with Gajinder Kumar and Prem Nath removed one page of the daily diary register dated 18.04.2005 and inserted a new page after making false entry regarding loss of cheques. However, HC Baljit Singh did not appear before the enquiry officer despite issuance of notices to him. Thus, Enquiry Officer concluded that accused Gajinder Kumar and Prem Nath paid Rs. 20,000/- to MHO Baljit Singh, who removed a page of the daily diary register dated 18.04.2004 and after making an entry regarding loss of three cheques, inserted new page in the register. Thus, Enquiry Officer concluded that accused Gajinder Kumar and Prem Nath paid Rs. 20,000/- to MHO Baljit Singh, who removed a page of the daily diary register dated 18.04.2004 and after making an entry regarding loss of three cheques, inserted new page in the register. After obtaining legal opinion, case was registered under various sections. The investigation was conducted by various officers, who recorded the statements of the witnesses and on completion of the investigation, accused were challaned. Learned Public Prosecutor moved an application dated 06.09.2007 for granting permission of further investigate the case in order to know who wrote daily diary register report no. 13 to 22 dated 18.04.2004 and for tracing original affidavit on the basis of which entry was made; and for other purposes, which was disposed of vide order dated 02.06.2008. Thereafter supplementary challan under Section 173(8) Cr. P. C. was presented by adding offence under Section 201 IPC. ” On presentation of the final report under Section 173 Cr. P. C., the relevant documents were supplied to the accused, in accordance with law. Having found a prima facie case to be made out, the accused were charge sheeted for the offences punishable under Sections 467, 468, 471, 218 and 201 read with Section 120-B IPC and under Section 13(d) (ii) of the Prevention of Corruption Act, 1988. The accused pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 37 PWs, besides tendering the relevant documents in its evidence. After conclusion of the prosecution evidence, separate statements of the accused were recorded under Section 313 Cr. P. C. Entire incriminating material brought on record was put to the accused. They denied the allegations and alleged false implication claiming themselves to be innocent. Opting for leading defence evidence, the accused examined two DWs, besides tendering the relevant documents in their defence evidence. After hearing the parties and appreciating the evidence brought on record, the learned trial Court came to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. Consequently, the accused were acquitted of the charge framed against them, vide judgment of acquittal dated 24.12.2010. Feeling aggrieved against the above-said impugned judgment of acquittal, the applicant-complainant has approached this Court by way of instant application. That is how, this Court is seized of the matter. Consequently, the accused were acquitted of the charge framed against them, vide judgment of acquittal dated 24.12.2010. Feeling aggrieved against the above-said impugned judgment of acquittal, the applicant-complainant has approached this Court by way of instant application. That is how, this Court is seized of the matter. Learned counsel for the applicant submits that the learned trial Court has proceeded on an erroneous approach, while not appreciating the evidence in the right perspective. He further submits that sufficient and cogent evidence was produced to record the conviction of the accused-respondents. He concluded by submitting that since the impugned judgment was based on a misconceived approach, the same was not sustainable in law. Having heard the learned counsel for the applicant, after going through the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that the present one is not a fit case for granting leave to file an appeal against the judgment of acquittal. To say so, reasons are more than one, which are being recorded hereinafter. A combined reading of the statements of the prosecution witnesses would show that they have contradicted themselves to such an extent that numerous discrepancies have come to light in the prosecution evidence which go to the root of the case. In such a situation, it was neither prudent nor safe to record the conviction of the accusedrespondents. Thus, this Court feels no hesitation to conclude that the learned trial Court has come to the right conclusion, while acquitting the accused-respondents. The prosecution has failed to prove its case by leading cogent and convincing evidence. A confession made before the police officer was sought to be put into service against the accused, which is not permissible in law, as envisaged under Section 25 of the Indian Evidence Act, 1872. Further, accused-respondent No. 1 Gajender Kumar, who has since expired, filed criminal complaint No. 158 of 20/1/2006 against the applicant-complainant Khushal Chand, which was dismissed by the learned Judicial Magistrate vide order Ex. PW6/C. It was sought to be argued that as the said complaint was dismissed, it lend credence to the prosecution case. Further, accused-respondent No. 1 Gajender Kumar, who has since expired, filed criminal complaint No. 158 of 20/1/2006 against the applicant-complainant Khushal Chand, which was dismissed by the learned Judicial Magistrate vide order Ex. PW6/C. It was sought to be argued that as the said complaint was dismissed, it lend credence to the prosecution case. However, the learned trial Court rightly held in this regard that it was not sufficient because the prosecution itself moved an application on 7.9.2007 for further investigation and that application shows that the prosecution was not sure as to who wrote the daily dairy entries no. 13 to 22 dated 18.4.2004 and who was the accused. Thus, it becomes clear that the prosecution was not sure about the involvement of the present accused-respondents. In this view of the matter, it is unhesitatingly held that the learned trial Court has committed no error of law, while passing the impugned judgment of acquittal. Further, the learned trial Court, before arriving at a judicious conclusion, recorded cogent findings which read as under:- “If Court dismissed the complaint of Gajinder Kumar regarding forging of a cheque, for which separate litigation is pending between the parties, hardly and conclusion be drawn that the page Ex. PW. 7/A, including entry no. 13, was changed by the accused party. It may be added that prosecution has moved an application to further investigate the case on 07.09.2007 mentioning therein that it want to further investigate the case regarding the fact who changed the page no. 2 containing entries no. 13 to 22 dated 18.04.2004 and tracing the accused, as well as for other facts to be investigated as mentioned in the application. This application itself shows that prosecution was not sure who wrote the daily dairy entries no. 13 to 22 dated 18.04.2004 and who was the accused and wanted to investigate the case to trace out the accused, meaning thereby that the prosecution was not clear about the implication of the present accused. It again submitted supplementary challan under Section 173 (8) Cr. P. C. without mentioning about the person, who made the entries Ex. PW. 7/A in the daily dairy register. DSP Jasdeep Singh PW-37 has stated that he moved application Ex. It again submitted supplementary challan under Section 173 (8) Cr. P. C. without mentioning about the person, who made the entries Ex. PW. 7/A in the daily dairy register. DSP Jasdeep Singh PW-37 has stated that he moved application Ex. PW37/C in order to obtain hand writing of one Gurbax Rai and it is mentioned therein that complainant suspected that the entries in the daily dairy register are in the hand or one Gurbax Rai. The handwriting Ex. PW. 37/D of Gurbax Rai was taken before the Executive Magistrate and even the same was sent to the Forensic Science Laboratory, Chandigarh. This fact further shows that prosecution was not sure who actually made the entries no. 13 to 22 dated 18.04.2004 (Ex. PW. 7/A) in the daily diary register and this fact has been cleared by Satnam Singh PW-5 when he categorically stated that these entries are in the hand of MHC Iqbal Singh. It may also be added here that during enquiry (SP(H) examined Amrik Singh, vide statement (Ex. P2), who told about presence of accused Prem Nath in the police station but said Amrik Singh has not been examined by the prosecution. It find mention in the enquiry report Ex. P. 4 that SI Lakhbir Singh told that HC Baljit Singh admitted before him that he changed the page in the daily diary register in connivance of Gajinder Kumar and Prem Nath. But SI Lakhbir Singh while appearing in the witness box is totally silent on this aspect and these facts further create dent in the prosecution case. Thus, considering the evidence led on the file it cannot be said that any circumstances are proved on the file which lead to the conclusion that accused party entered into a criminal conspiracy and in pursuance thereof HC Baljit Singh removed a page from the daily diary register dated 18.04.2004 and inserted new one therein containing entry no. 13 regarding misplacing of cheques of Gajinder Kumar and, therefore, it cannot be said that accused committed any offence. ” Learned counsel for the applicant has failed to point out any piece of cogent evidence, which might have been altogether ignored by the learned trial Court so as to convince this Court to take a different view than the one taken by the learned trial Court. ” Learned counsel for the applicant has failed to point out any piece of cogent evidence, which might have been altogether ignored by the learned trial Court so as to convince this Court to take a different view than the one taken by the learned trial Court. It is the settled proposition of law that whenever two views are possible, the view which goes in favour of the accused, is to be followed by the Court. The view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in the case of Arulvelu & anr. vs. State represented by the Public Prosecutor and anr. 2009(4) RCR (Crl. ) 638. The relevant observations made by the Hon'ble Supreme Court in para Nos. 39, 40 and 41 in the case of Arulvelu's case (Supra) read as under: In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450 , a two Judge Bench of this Court of which one of us (Bhandari, J. ) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above: 1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court. 3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses. 4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. 5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused. 40. 4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. 5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused. 40. This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009 (11) SCALE 699 again examined judgments of this Court and laid down that "An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases. " 41. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law. In Rs.Mrinal Das & others, V. The State of Tripura', 2011(9) SCC 479 , decided on September 5, 2011, the Hon'ble Supreme Court, after referring to many earlier judgements, has laid down parameters, for interference against a judgement of acquittal, by observing as under :- An order of acquittal is to be interfered with only when there are “compelling and substantial reasons”, for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed. ” Similarly, in the case of 'State of Rajasthan v. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602 ', the Hon’ble Supreme Court has observed as under:- “7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. ” Similarly, in the case of 'State of Rajasthan v. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602 ', the Hon’ble Supreme Court has observed as under:- “7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal. 8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for. ” Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:- “10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience. ” No other argument was raised. Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the prosecution has miserably failed to prove its case beyond reasonable doubt. The learned trial Court has not committed any error of law, while passing the impugned judgment. No patent illegality or perversity has been pointed out, which is sine qua non to interfere in a judgment of acquittal. No case for interference has been made out. So far as the application under Section 5 of the Limitation Act is concerned, no satisfactory explanation has been given by the applicant to explain the inordinate and long delay of 37 days. The reasons given in the application have not been found to be sufficient to condone the long and unexplained delay. Resultantly, the present application under Section 378 (4) Cr. P. C. as well as application under Section 5 of the Limitation Act read with Section 482 Cr. P. C., being bereft of any merit and without any substance, are ordered to be dismissed.