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2015 DIGILAW 824 (GUJ)

State of Gujara v. Maheshbhai Jivanbhai

2015-08-24

G.B.SHAH, K.S.JHAVERI

body2015
Judgment K.S. Jhaveri, J. 1. These Criminal Appeals, filed by the appellant - State, have been directed against the judgment and order dated 28/05/2010 passed by the learned 5th Additional District and Sessions Judge, Surat in Sessions Case No. 135 of 2008 whereby, the learned Sessions Judge was pleased to convict the accused for the offence punishable under Section 489(C) and 114 of the Indian Penal Code, 1860 ('the IPC' for brevity) and awarded two years' imprisonment and fine of Rs. 30,000/- and in default of payment of fine, further simple imprisonment for a period of 06 months whereas, acquitted them of the offence punishable under Sections 489(A) and 489(B) of the IPC. Accordingly, Criminal Appeal Nos. 1212 of 2010 has been preferred against acquittal whereas, Criminal Appeal No. 1227 of 2010 has been preferred for enhancement of sentence. 2. Brief facts of the prosecution case are that on 09/04/2008 at about 21:30 hours, near security office in Bombay Market parking, the respondent No. 1 herein - original accused No. 1 was found with 90 fake currency notes in the denomination of Rs. 1,000/- valued at Rs. 90,000/-, the respondent No. 2 - original accused No. 2 was found with 100 fake currency notes in the denomination of Rs. 500/- valued at Rs. 50,000/- and the respondent No. 3 - original accused No. 3, who was alleged to have been providing these notes to the accused Nos. 1 and 2, was found with 80 fake currency notes in the denomination of Rs. 500/- valued at Rs. 40,000/- along with colour printer valued at Rs. 31,000/- for preparing such currency notes. Thus, all the accused with the help of each other, committed the alleged offence punishable under Sections 489(A), (B) and (C) r/w. Section 114 of the IPC and for which, complaint came to be lodged against them. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, Surat. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3 In order to bring home the charge against the accused, the prosecution has examined as many as 08 witnesses and also produced several documentary evidence. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3 In order to bring home the charge against the accused, the prosecution has examined as many as 08 witnesses and also produced several documentary evidence. 2.4 At the end of the trial and after recording Further Statements of the accused under Section 313 of Criminal Procedure Code, 1973 ('the Code' for brevity) and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused for the offence punishable under Sections 489(C) r/w. Section 114of the IPC whereas, acquitted them of the charges for the offence punishable under Sections 489(A) and (B) of the IPC, as aforesaid, by impugned judgment and order. 2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant - State has preferred the present appeals. 3. We have heard Ms. Shah, learned Additional Public Prosecutor, for the appellant - State and Mr. J.R. Dave, learned advocate appearing for the respondent No. 3 herein - original accused No. 3. Though served, the accused Nos. 1 and 2 have put in no appearance. 3.1 Ms. Shah, learned Additional Public Prosecutor for the appellant - State, submitted that for the acquittal for the offence punishable under Section 489(A) and (B) in view of the fact that PW-2 - Natvarsinh Nathabhai, examined at exh. 15 and PW-8 - Nandkishor Shravan Chaudhary, examined at exh. 44, have supported the case of the prosecution, she relied upon decision of the Calcutta High Court in the case of Narayan Prasad Sen Vs. State of West Bengal, reported in 2007 (1) CrLJ 1, more particularly, para 32 and 35 and contended that in view of huge currency and evidence on record, the accused are required to be convicted for the offence punishable under Section 489(A) and (B). She has also relied upon the decision of the Hon'ble Apex Court in the case of Shyamal Ghosh Vs. State of West Bengal, reported in (2012) 7 SCC 646 , more particularly, para 45 and also the decision of the Hon'ble Apex Court in the case of M. Sarvana alias K.D. Saravana Vs. She has also relied upon the decision of the Hon'ble Apex Court in the case of Shyamal Ghosh Vs. State of West Bengal, reported in (2012) 7 SCC 646 , more particularly, para 45 and also the decision of the Hon'ble Apex Court in the case of M. Sarvana alias K.D. Saravana Vs. State of Karnataka, reported in (2012) 7 SCC 636 and also the judgment of this Court in the case of Vahaji Ravaji Thakore & Anr. Vs. State of Gujarat, reported in 2004 (1) GLR 777 on the aspect that merely because other witnesses have turned hostile, the documents can be relied upon and accordingly, conviction in the case on hand for the offence punishable under Section 489(A) and (B) could have been based on. She also submitted that so far as conviction of the accused for the offence punishable under Section 489(C) of the IPC is concerned, the same being on lower side, this Court may consider in appeal and enhance the sentence more particularly, when such a huge amount is involved and the offence affects the public at large. Making above submissions, she requested to allow the present appeals. 4. Whereas, Mr. Dave, learned advocate for the accused No. 3, took us through the evidence of PW-2 - Natvarsinh Nathabhai, recorded at exh. 15, more particularly, the cross-examination, where it is pointed out that there is no evidence on record against the accused No. 3, save and except against accused Nos. 1 and 2. He further took us to the complaint, exh. 16 where, the name of the accused No. 3 is not there. He further took us to the evidence of PW-8 - Nandkishor Shravan Chaudhary, recorded at exh. 44, wherein, in para 11 of the same, it is mentioned that the Article No. 7, which were the alleged currency notes sought to be found from the accused No. 3 by the prosecution, were recovered from the brother-in-law of the accused. He took us to the cross-examination of this witness and pointed out that from the evidence, there appears no incriminating evidence against the accused No. 3. Therefore, he contended that in these circumstances, there is no scope for conviction for the offence punishable under Section 489(A) and (B) and for enhancement of sentence. 5. We have heard the learned advocates for the respective parties. Therefore, he contended that in these circumstances, there is no scope for conviction for the offence punishable under Section 489(A) and (B) and for enhancement of sentence. 5. We have heard the learned advocates for the respective parties. 5.1 At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Hon'ble Apex Court in catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr., reported in (2006) 6 SCC 39 , the Hon'ble Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Hon'ble Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below." 5.2 Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007) 4 SCC 415 the Hon'ble Apex Court has laid down the following principles: "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: [1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. [4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 5.3 Thus, it is a settled principle that while exercising appellate powers, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 5.4 Even in a recent decision of the Hon'ble Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007) 3 SCC 75, 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 characterized 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. 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 re-appreciate 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." 5.5 Similar principle has been laid down by the Hon'ble Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors., reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. 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. 5.6 In the case of Luna Ram Vs. Bhupat Singh and Ors., reported in (2009) SCC 749, the Hon'ble Apex Court in paras 10 and 11 has held as under: "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in a running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 5.7 Even in a recent decision of the Hon'ble Apex Court in the case of Mookiah and Anr. Vs. State rep. by the Inspector of Police, Tamil Nadu reported in AIR 2013 SC 321 , the Hon'ble Apex Court in para 4 has held as under: "4. Vs. State rep. by the Inspector of Police, Tamil Nadu reported in AIR 2013 SC 321 , the Hon'ble Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges levelled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan v. Sohan Lal and others, (2004) 5 SCC 573 : ( AIR 2004 SC 4520 : 2004 AIR SCW 4321)]" 5.8 It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Hon'ble Apex Court in the case of State of Karnataka Vs. Such principle is laid down by the Hon'ble Apex Court in the case of State of Karnataka Vs. 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 ( (1967)1 SCR 93 : 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." 5.9 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence at length is not necessary. 6. We have examined the matter carefully and gone through the evidence on record. We have appreciated, re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court. We find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence adduced before it. Further, the learned Additional Public Prosecutor for the State in these appeals is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. Moreover, in view of the fact that the accused have not preferred any appeal against conviction, we deem it proper not to disturb the findings of the trial Court. In that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. We are, therefore, of the considered opinion that the findings recorded by the trial Court in passing the impugned judgment and order which is absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court. However, in our opinion, while awarding sentence, the trial Court appears too lenient and looking to the huge amount involved in the matter that too fake currency note which is a crime against the public at large, is required to be viewed seriously and ends of justice would serve if the sentence awarded by the trial Court is enhanced to four years instead of two years, as has been imposed by the trial Court and to that extent, the impugned judgment and order of the trial Court requires to be modified. 7. In view of the aforesaid discussion and observations, the Criminal Appeal being No. 1227 of 2010 filed by the appellant - State for enhancement of sentence for the offence punishable under Section 489-C r/w. Section 114 of the IPC succeeds in part and the impugned judgment and order dated 28/05/2010 passed by the learned 5th Additional District and Sessions Judge, Surat in Sessions Case No. 135 of 2008 is hereby modified and it is held that all the accused shall have to undergo 04 (four) years' imprisonment (instead of 02 years' imprisonment imposed by the trial Court) and the Criminal Appeal being No. 1212 of 2010 filed by the State against acquittal for the offence punishable under Section 489-A and 489-B fails and is dismissed. The rest of the order shall remain unaltered. It is reported that the accused are at large on bail and hence, they are directed to surrender before the concerned jail authority to undergo the sentence imposed upon them as aforesaid, within a period of 08 (eight) weeks from today. Their bail bonds shall stand cancelled accordingly. Registry to send back the record and proceedings to the trial Court forthwith.