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2017 DIGILAW 843 (GUJ)

State of Gujarat v. Akbarali Hussainali Momin

2017-04-19

A.J.SHASTRI, S.R.BRAHMBHATT

body2017
JUDGMENT : A.J. Shastri, J. 1. The appellant - State has filed the present criminal appeal under Section 378 of the Cr.P.C. against the judgment and order, 31.5.2006, passed in Criminal Case No. 1970 of 2004, by the learned 3rd Additional Senior Civil Judge and Judicial Magistrate First Class, Palanpur whereby, the trial court has been pleased to acquit the respondent accused from the charges for which he has been tried. 2. The facts leading to the rise of the case of prosecution is that one Pravinkumar Dahyabhai Prajapati, who was working as Assistant Manager of the Corporation at the Gas Distribution Centre, Palanpur, has filed the complaint by asserting that the respondent - accused, who was working as Salesman at the Gas Centre at the relevant point of time in the Sales Department at the Gas Centre, Palanpur, was assigned the charge of Assistant Manager in the said Gas Centre. It was further alleged that on 10.11.2003 on account of different transactions and instances of misappropriation and forgery and defalcation, a complaint came to be filed against the respondent - accused. It has been specifically alleged in the complaint that he being in-charge Assistant Manager at the relevant point of time, has misappropriated an amount to the extent of Rs. 7,20,924/- with respect to goods in the form of gas cylinders which had come from Udepur on 26.4.2001 and the said gas cylinders alleged to have been sold outrightly and the total sale consideration has not been recorded in the account books and thereby, has committed an offence as alleged. The said complaint came to be registered as I-C.R. No. 126 of 2003 at Palanpur City Police Station for the offences punishable under Sections 406, 408, 461, 467, 468 of the IPC which upon receipt of the said complaint came to be investigated by the Investigating Officer. 2.1 Pursuant to the registration of complaint, the investigating officer has recorded statements of witnesses and undertaken requires exercise of process of investigation and having found that sufficient material is collected against the respondent accused, the Investigating Officer filed the charge-sheet before the learned Magistrate for the offence punishable under Sections 406, 408, 461, 467, 468 of the IPC which case has been registered as Criminal Case No. 1970 of 2004. 2.3 In the said criminal case, the learned Magistrate has framed the charge at Exh. 2.3 In the said criminal case, the learned Magistrate has framed the charge at Exh. 5 on 26.10.2004 for the offence punishable under Sections 406, 408, 461, 467, 468 of the IPC and then, the case was put up for trial. Pursuant to the said framing of the charge, a plea was recorded of the respondent accused and since the offence being denied to have been committed, the case was put up for further adjudication wherein, the prosecution with a view to prove the case against the respondent accused has led the evidence in the form of oral as well as documentary evidence. After completing recording of statements of the respondent accused, the issues came to be framed for onward adjudication of the case. The prosecution with a view to prove the case has examined several witness and has made an attempt to prove the case. The learned Magistrate, after considering in detail the evidence led by the prosecution and after considering the further statement, was pleased to pass an order of acquittal and the respondent accused came to be acquitted from the charges for which he has been tried. It is this judgment and order is made the subject matter of present criminal appeal by the appellant - State. 3. Ms. Hansa Punani, learned APP for the appellant - State has vehemently contended that a serious error is committed by the trial curt in evaluating the evidence led by the prosecution. Learned APP has submitted that the case essentially based upon the documentary material which has clearly established the guilt of the respondent accused and the same has been substantiated by the testimony of witnesses, who have been examined. Mr. Hansa Punani, learned APP has further submitted that there was handwriting expert's opinion also brought on record which has indicated and identified the signature of the respondent accused and therefore, the case has been proved beyond reasonable doubt and therefore, the trial court has committed a serious error in discarding such piece of evidence which has been brought to the notice. It has also been contended by learned APP that even the departmental inquiry with respect to such act of misappropriation has been held against the respondent accused along with other officials. It has also been contended by learned APP that even the departmental inquiry with respect to such act of misappropriation has been held against the respondent accused along with other officials. In the said departmental inquiry also, the respondent accused has been held guilty and therefore, there was no justifiable reason for the trial court to discard said evidence which has been brought on record by the prosecution. It has also been contended by learned APP that the conclusion which has been arrived at by the trial court is not sustainable in view of the fact that the testimony of the witnesses clearly established the role of the respondent accused. Learned APP has further submitted that the very fact that this amount of Rs. 7 lacs and odd which has been stated to have been misappropriated, has been deposited by very respondent which indicates that the charge which has been levelled has been established by the prosecution and therefore, the analysis which has been undertaken by the trial court is not in true perspective and therefore, the order suffers from the vice of non application of mind on the part of the trial court which also deserves to be corrected. It has also been contended by learned APP that the registers which have been brought to the notice have also indicated the fact of involvement of the respondent accused and therefore, the prosecution has clearly established the case against the respondent accused which ought not to have been ignored and this having been done by the trial court, an error committed by the trial court is required to be corrected and by referring to the evidence on record, learned APP has ultimately submitted to allow the present appeal filed by the State and quash and set aside the impugned order by inflicting appropriate punishment upon the respondent accused. No other submissions are made by learned APP. 4. To oppose the stand taken by learned APP, Mr. No other submissions are made by learned APP. 4. To oppose the stand taken by learned APP, Mr. N.K. Majmudar, learned counsel representing the respondent accused has broadly submitted before the Court that while passing the impugned order, the trial court has assigned cogent reason to justify the ultimate conclusion and has also analyzed the evidence which has been led by the prosecution and therefore, even if another view is possible, the same may not be substituted in place of the view which has been taken by the trial court and therefore, this being the position, learned counsel requested the Court not to allow the appeal filed by the State. It has also been contended by Mr. Majmudar that sole responsibility is tried to be fixed upon the respondent accused especially when the departmental inquiry has indicated the guilt of several other officials as well and therefore, there was no justifiable reason to arraign the respondent alone in the prosecution in the absence of any material circumstance against him. It has also been contended by Mr. Majmudar that the stock register entries are to be made by other official and therefore, with respect to this transaction which has been made the subject matter of prosecution, such entry is not being referred to in the stock register and there is no material enough to suggest or connect the respondent accused with commission of crime. Learned counsel also submitted that even the key witnesses of the prosecution, who is the godown keeper, has also been examined and from the testimony of this witness, it has been specifically found that there is no material collected sufficient enough to connect the respondent accused with commission of crime and that has been examined by the trial court at length and arrived at a conclusion and therefore, this being a case in which despite the fact that there is no cogent material available with the prosecution and on the basis of mere inferences, arraignment of respondent accused is made and it has been visualized rightly by the trial court and passed the order of acquittal and therefore, looking to the scope of appellate jurisdiction more particularly when dealing with an appeal against an order of acquittal, this is not the case in which any interference is warranting as per the submissions of Mr. Majmudar. Majmudar. After referring to the testimony of godown keeper, who has been examined, Mr. Majmudar requested the Court that there are no sufficient material to establish the guilt beyond reasonable doubt and therefore, the order is not required to be interfered with and ultimately, requested the Court not to allow such acquittal order to be disturbed in exercise of appellate jurisdiction. 5. Having heard the learned counsel appearing for the respective parties and having gone through the material on record and having independently assessed the evidence and compared the same with the conclusion arrived at by the trial court, it appears that the conclusion arrived at by the trial court is a plausible view. 6. We have considered the testimony of the complainant - Prajapati Pravinbhai Dahyabhai, who has been examined at Exh. 48 and from cross-examination of this witness, some of the circumstances which are reflecting are raising serious doubt about the case of prosecution. It has been asserted in the cross-examination that he has not seen the name of the respondent accused in the sales register maintained by the office with respect to sale consideration of 6/2002 and 7/2002 of stock of the gas cylinders. It has also been reflected from this testimony that this witness has deposed on the basis of the say of godown keeper and is not having any personal knowledge about it. It has also been admitted by this witness that audit process is getting undertaken regularly in the office. It has also been admitted by the said witness that despite the request being made by respondent accused, no particulars from the relevant record has been given and therefore, the testimony of this witness indicates that he has no personal knowledge with respect to commission of crime as alleged against the respondent accused. 7. In addition thereto, the record indicates that the departmental inquiry with respect to this alleged incident about stock received from Udepur has been undertaken against several other officials including the present respondent and on the basis of said departmental inquiry, the trial court has categorically found that there is an serious doubt about the involvement of the present respondent accused and there appears to be no cogent evidence qua the respondent accused and that has been specifically observed by the trial court. It has also been concluded on the basis of the register maintained by godown keeper that there appears to be no entry with respect to the said transaction reflecting involvement of the present respondent accused and therefore, it has been found by the trial court that prosecution has failed to establish the case against the respondent accused beyond reasonable doubt. 8. From the overall analysis of the evidence on record, the trial court has also found that no independent witnesses have been examined and a serious attempt is made to rope the respondent alone in the prosecution and this being the state of affairs of the evidence on record, it cannot be said that the view which has been taken by the trial court is not a plausible view. It has also been found that though the handwriting expert's opinion reflecting the signature but, in the absence of any other corroborative material, just to rely upon a mere opinion the conviction is not possible to maintained and therefore, from overall analysis of evidence, the trial court has found that no case is made out against the respondent accused beyond reasonable doubt. Even to ensure ourselves further, a comprehensive analysis is undertaken by us and from such analysis also, we have not been posted with any other distinguishable circumstance by virtue of which it can be concluded that only one view is possible to hold the respondents accused guilty. We are mindful of the fact that appellate jurisdiction has its own self-imposed limitations as held by catena of decisions. No doubt, the appellate jurisdiction is wide enough to reassess the entire evidence and come to a different conclusion but, then again a rider is observed by series of decisions that even if another plausible view is emerging the view cannot be substantiated qua that of the view taken by the trial court, more particularly when the trial court had an opportunity to see the demeanor of witness. Simply because another view is possible, it is not open for the appellate court to substitute the view and therefore, with this limitation of exercise of jurisdiction keeping in mind, we are of the considered opinion that there is no such legal infirmity visible from the order which results in miscarriage of justice and therefore, we are of the considered opinion that the order does not require any interference with. The following propositions laid down by the decisions delivered by the Apex Court which we worth to take note of and reproduce hereinafter. 8.1 In the decision delivered by the Supreme Court in case of Sureshkumar v. State of Haryana, reported in (2013) 16 SCC 353 , it was observed that if two views are possible, the High Court should hold in favour of the accused and should not interfere with an order of acquittal. The relevant observations of the decision are reflected in Para.55, 56 and 57 which read as under: "55. The second contention is that the High Court ought not to have interfered in the acquittal by the Trial Court. It was submitted that if two views are possible, the High Court should lean in favour of the accused and should not interfere with an acquittal. 56. A few years ago, the law on the subject was culled out from a large number of decisions and summed up in Ghurey Lal v. State of U.P. (2008) 10 SCC 450 : AIR 2009 SC (Supp) 1318 : 2008 AIR SCW 6598 as follows: "1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law. 2. The accused is presumed 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. 3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. 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. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. 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. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive." 57. Learned counsel for Suresh Kumar referred to S. Anil Kumar v. State of Karnataka, (2013) 7 SCC 219 : 2013 AIR SCW 6180 particularly paragraph 14 of the Report wherein reliance was placed on Rohtash v. State of Haryana, (2012) 6 SCC 589 : AIR 2012 SC 2297 : 2012 AIR SCW 3318 to conclude that it is "only in exceptional cases where there are compelling circumstances and where the judgment in appeal is found to be perverse, can the High Court interfere with the order of acquittal." In Rohtash it was further observed: "The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 : AIR 2011 SC 2271 : 2011 AIR SCW 3889 and Govindaraju v. State, (2012) 4 SCC 722 : AIR 2012 SC 1292 : 2012 AIR SCW 1994)." 8.2 In yet another decision in the case of Ramaiah @ Rama v. State of Karnataka, 2014(9) SCC 365 , it has been held by Hon'ble Apex Court that if two views are possible on the evidence adduced and the one favourable to the accused has been taken by the trial court, it should not be disturbed as observed in paragraph Nos. 30 and 31. 8.3 In the case of Upendra Pradhan v. State of Orissa, 2015 (5) Scale 634 , it has been held by Hon'ble Apex Court that when there are two views culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. Paragraph No. 10 of the said decision reads thus: "10. Taking the First question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognized as a human right by this Court. In Narendra Singh and another v. State of M.P. (2004) 10 SCC 699 : AIR 2004 SC 3249 , this Court has recognized presumption of innocence as a human right and has gone on to say that: "30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'. 31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. 31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court. 33. We, thus, having regard to the post-mortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mystery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld." 8.4 The decision taken by the Apex Court in the case of V. Sejappa v. State, reported in 2016 AIR (SC) 2045, wherein the apex Court in paragraph No. 21 observed thus: "21. If the evaluation of the evidence and the findings recorded by the trial court does not suffer from any illegality or perversity and the grounds on which the trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view is possible. Merely because the appellate court on re- appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. In State through Inspector of Police, A.P. v. K. Narasimhachary (2005) 8 SCC 364 , this Court reiterated the well settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court. The same view was reiterated in T. Subramanian v. State of T.N. (2006) 1 SCC 401 ." 9. The same view was reiterated in T. Subramanian v. State of T.N. (2006) 1 SCC 401 ." 9. Considering the aforesaid position prevailing on record and based upon comprehensive analysis of entire evidence on record in co-relation with the conclusion arrived at by the trial court, we are of the considered opinion that the judgment and order passed by the trial court is not required to be interfered with keeping in mind the proposition of law on exercise of appellate jurisdiction stated herein before and therefore, the appeal filed by the State being meritless deserves to be dismissed. 10. The present appeal is dismissed. The judgment and order, dated 31.5.2006, passed in Criminal Case No. 1970 of 2004, by the learned 3rd Additional Senior Civil Judge and Judicial Magistrate First Class, Palanpur is hereby confirmed. Bail bonds shall stand discharged. Record and Proceedings be sent back to the trial Court concerned, forthwith.