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2014 DIGILAW 2078 (BOM)

State of Maharashtra v. Pundlik

2014-09-29

S.B.SHUKRE

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JUDGMENT : S.B. Shukre, J. 1. This is an appeal against the judgment and order of acquittal of the respondents delivered on 28/6/2001 in Regular Criminal Case No. 196 of 1996 by the Court of Judicial Magistrate, First Class, Nagpur. Briefly stated, the facts of the appeal are as under.: "One Mrs. Ratnamala Indal Meshram had approached Magasvargiya Vikas Mahamandal Limited, Nagpur to obtain loan for her Beauty Parlour at Nagpur. It appears that the said institution had stipulated a condition of issuing part of the loan amount by cheque in favour of the concerned supplier, who would supply articles required for running of beauty parlour, directly and for that purpose quotation was to be obtained from the supplier and submitted to the said financial institution. Ratnamala was conversant with respondent No. 1 and, therefore, she asked him for the quotation. According to her, respondent No. 1 was running a proprietary concern in the name of "Nagsen Enterprises", Handloom Market, Gandhibagh, Nagpur, and was dealing in supply of beauty parlour articles. Respondent No. 1 gave quotation regarding supply of the beauty parlour articles to Ratnamala, who, in turn, submitted it to the said financial institution. On its basis the loan was sanctioned and three cheques were issued, one of which was in the name of "Nagsen Enterprises" and it was for the sum of Rs. 47,000/-. This cheque was given by Ratnamala to respondent No. 1 which was encashed by him by depositing the same in his account in Bank of Maharashtra, Nandanvan Branch, Nagpur. Even though the cheque was encashed by respondent No. 1, beauty parlour articles were not supplied to her and, therefore, she felt cheated by the respondent No. 1. She, therefore, filed a complaint with Lakadganj Police Station, Nagpur against the respondents. On its basis, offences punishable under Sections 406,420, 468, 471 read with Section 34 of the Indian Penal Code came to be registered against the respondents vide Crime No. 211/1996. After completion of the investigation, charge-sheet was filed against the respondents." 2. As the respondents pleaded not guilty to the charge framed for the afore-stated offences against them and claimed to be tried, they were tried by the learned Magistrate, in accordance with law. After completion of the investigation, charge-sheet was filed against the respondents." 2. As the respondents pleaded not guilty to the charge framed for the afore-stated offences against them and claimed to be tried, they were tried by the learned Magistrate, in accordance with law. As the evidence brought on record by the prosecution was found to be inadequate, the learned Magistrate recorded a finding of not guilty in respect of the respondents and accordingly acquitted them of the said offences by his judgment and order dated 28/6/2001. Being aggrieved, the State is before this Court in this appeal filed under Section 378(3) of Code of Criminal Procedure. 3. I have heard Mrs. Deshmukh, learned Additional Public Prosecutor for the appellant-State, Mr. Gandhi, learned Counsel for the respondents and also perused the record. 4. It is seen from the evidence available on record that the ingredients for making out the offences of cheating and criminal breach of trust by making of false representation knowing it to be false with an intention to cause wrongful gain or wrongful loss to some person and entrustment of property have not appeared in the prosecution evidence. 5. It has been alleged that respondent No. 1 -accused No. 1 was a proprietor of "Nagsen Enterprises" in whose name the quotation was allegedly issued by respondent No. 1 and given to the complainant. It is also alleged that the cheque for Rs. 47,000/- was deposited by respondent No. 1 in his account with Bank of Maharashtra, Nandanvan Branch. But, the original quotation has not been produced in evidence by the prosecution. Two witnesses, P.W.-1 Dilip Joshi and P.W.-3 Manohar Fulsunge, the officials of the Bank, have not stated that the account in which the cheque for Rs. 47,000/- was deposited, stood in the name of respondent No. 1 or was operated by respondent No. 1 as a proprietor of "Nagsen Enterprises". Their evidence discloses that one Premkumar Zibalji Shamkuwar was the proprietor of "Nagsen Enterprises". The name of respondent No. 1 is Pundlik Zibal Somkuwar and of respondent No. 2 is Mrs. Prema Pundlik Somkuwar. Thus, some evidence was required to be brought on record by the prosecution to establish that although the account was opened in the name of proprietary concern, "Nagsen Enterprises", it was, in fact, run by either of the respondents on behalf of it's proprietor or as its proprietor. Prema Pundlik Somkuwar. Thus, some evidence was required to be brought on record by the prosecution to establish that although the account was opened in the name of proprietary concern, "Nagsen Enterprises", it was, in fact, run by either of the respondents on behalf of it's proprietor or as its proprietor. There is absolutely no evidence brought on record by the prosecution in this regard. P.W.-4 is the Investigating Officer who has stated that he had made enquiry with the staff members of the Bank in this behalf which revealed that respondent No. 1 was operating the said account with the said Bank. However, he did not record statements of those Bank officials and consequently, no admissible evidence on this aspect of the case could be made available by the prosecution. 6. It is further seen from the record that even the articles, which have been allegedly recovered at the instance of respondent No. 1 namely Articles 'F'- cash memo and 'G' - letter head, have not been shown to be reliably recovered at the instance of respondent No. 1 as per Section 27 of the Evidence Act. No panch witnesses have been examined and the learned Magistrate has taken a view that as the discovery memo contains statements which are vague in nature and which do not show that they were voluntarily made, the recovery allegedly made at the instance of respondent No. 1 cannot be relied upon and the evidence of independent witnesses was required in the matter and as it was not forthcoming, the learned Magistrate did not find the recovery to be as inspiring confidence. This view is based upon the evidence available on record and is a possible view and, therefore, it cannot be substituted by another view just because it is possible to take an other view while exercising jurisdiction in an appeal filed against acquittal. 7. The record also shows that there is absolutely no evidence available against respondent No. 2 and the learned A.P.P. also could not show to me anything as going against respondent No. 2. With such evidence available on record, I do not think that there was any scope for the learned Magistrate to take a view that the prosecution has proved its case against the respondents beyond reasonable doubt. With such evidence available on record, I do not think that there was any scope for the learned Magistrate to take a view that the prosecution has proved its case against the respondents beyond reasonable doubt. The learned Magistrate has rightly recorded innocence of the respondents in this case and rightly acquitted them for the offences punishable under Section 406, 420, 468, 471 read with Section 34 of the Indian Penal Code. This is not a fit case for interfering with the impugned judgment and order in which neither any perversity or arbitrariness has been seen. The appeal, therefore, deserves to be dismissed and it is accordingly dismissed.