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2018 DIGILAW 1270 (GUJ)

State of Gujarat v. Kirtibhai Maganbhai Patel

2018-12-19

R.P.DHOLARIA

body2018
JUDGMENT : R.P. DHOLARIA, J. 1. The appellant State of Gujarat has preferred the present appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 29.5.2006 rendered by learned Judicial Magistrate, First Class, Lunawada in Criminal Case No. 908 of 2004. 2. The short facts giving rise to the present appeal are that respondent No. 1 - Kiritbhai Maganbhai Patel was lease holder under the provisions of the Mines and Minerals Act 1966 ("the Act" for short) for getting minerals from Panam river-bed. It is the case of the prosecution that in between 31.8.1998 and 3.2.2004 respondent No. 2 and other two persons forged royalty book as well as also prepared duplicate seal and documents in order to avoid payment of royalty and in carrying out such illegal activity, respondent Nos. 3 and 4 aided and abetted and while carrying out such illegal activities, they printed for about 18 royalty books containing 100 bills in triplicate. Ultimately, the complaint came to be lodged against the respondents accused for the offence under Sections 464, 465, 468, 470, 471, 473, 474 and 114 of Indian Penal Code and Sections 5(42) and 22 of the Act. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondents accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 4. In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences. 5. At the end of the trial, after recording the statements of the accused under Section 313 of the Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 6. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 7. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such. 8. Ms. Punani, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that though there is ample evidence on record, learned trial Court did not believe the depositions of the witnesses and wrongfully acquitted the accused as such. In her submission, therefore, learned trial Court ought to have convicted the accused and hence, learned trial Court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the respondents are required to be convicted, as such. She further submitted that the complainant unearthed conspiracy of evasion of royalty by adopting tactics of preparing 18 duplicate royalty books and while using such duplicate books, the accused in collusion with one another, used duplicate seal and stamp and thereby evaded huge amount of royalty. She further submitted that the complainant has clearly stated as to how the amount was evaded and as regard to dissimilarity between the seals, impressions of the seals were taken and the material was sent to the Forensic Science Laboratory wherein dissimilarity was noticed and the say of the complainant and other witnesses is fully getting corroboration and hence, learned trial Court ought to have believed the evidence and ought to have convicted the respondents accused. 9. On the other-hand, Mr. K.D. Pandya, learned Advocate for the respondents accused has submitted that none of the independent witness has supported the case of the prosecution though the prosecution examined for about 22 witnesses except the Investigating Officer and the complainant. He further submitted that other personnel who were from the Mines and Minerals Department have been examined and they have deposed that they have given Police statements in accordance with the instructions given by the complainant as he was the higher Official in the Department and therefore the only the evidence of the complainant and Investigating Officer Mr. He further submitted that other personnel who were from the Mines and Minerals Department have been examined and they have deposed that they have given Police statements in accordance with the instructions given by the complainant as he was the higher Official in the Department and therefore the only the evidence of the complainant and Investigating Officer Mr. Puvar is decisive in nature and their evidence is also not leading the case of the prosecution any further so as to establish that the present respondents have committed the offence of cheating, forging documents and stamps as well as evaded payment of royalty as such. He further argued that one book of royalty was alleged to have been seized at the time of investigation which was sent for examination to the FSL which had been described as Exh. 13 in the present proceedings, but no iota of evidence is brought on record so as to indicate as to whether any one of the accused had ever excavated sand and delivered to various persons including the chalan, royalty pass either from the custody of the department or from any such person to whom by way of avoiding payment of royalty, sand alleged to have been delivered. In absence of such iota of evidence, entire case of the prosecution collapses on that ground only. 10. This Court has heard: Ms. H.B. Punani, learned APP for the appellant State and Mr. K.D. Pandya, learned Advocate for the respondents accused. 11. During the course of hearing, it is pointed out that respondent No. 2 has died on 30.9.2006, whereas respondent No. 4 has died on 2.12.2018. Copy of death certificate of respondent No. 4 is ordered to be taken on record. The appeal stands finally abated qua respondent Nos. 2 and 4. 12. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book as the controversy in the present case is involving evasion of royalty to the extent of Rs. 54,00,000/- and considering the penalty along with the same, it would come to nearly Rs. 1 crore and therefore, entire Record and Proceedings is minutely examined by this Court. 13. 54,00,000/- and considering the penalty along with the same, it would come to nearly Rs. 1 crore and therefore, entire Record and Proceedings is minutely examined by this Court. 13. Upon examining the entire material on record, indisputably, respondent No. 1 - Kiritbhai Maganbhai Patel was lease holder as well as alleged duplicate royalty book also alleged to have been printed on his name. From the entire case of the prosecution, nothing conclusively is revealing from the evidence on record as to how respondent Nos. 2 to 4 aided and abetted. Precisely, from the evidence on record, no incriminating evidence is available on record so as to link respondent Nos. 2 to 4 with the crime in question. 14. So far as accused No. 1 is concerned, serious charge as regards to cheating, forging documents, preparing forged stamp as well as evasion of huge amount of royalty is levelled and during the course of investigation, royalty book containing pass Nos. 1801 to 1900 came to be seized, out of which for about 8 challans alleged to have been used but nothing is revealing from the Record and Proceedings as such. The witness had deposed that while excavating sand for delivering to somebody, some persons got triplicate royalty book and used for such purpose wherein one copy used to remain with the lease holder, one would be handed over to the transporter and one copy would be handed over to the official of the Mines and Minerals Department. Indisputably, neither single copy is recovered from the Mines and Minerals Department indicating that such royalty pass was duplicate nor any single copy came to be recovered and seized from any person to whom sand alleged to have been delivered through either by tractor or truck and therefore, unless such sort of nexus is established, it would be only presumption on the part of the complainant that the respondents evaded huge amount of royalty by way of adopting mal-practice by preparing fraudulent and duplicate passes. The Record and Proceedings also indicates that as to whether the present lease holder has ever delivered 1800 trucks/tractors to various persons. Such allegation is merely upon the presumption which is clearly revealing from the complaint itself as well as deposition of the complainant. 15. The Record and Proceedings also indicates that as to whether the present lease holder has ever delivered 1800 trucks/tractors to various persons. Such allegation is merely upon the presumption which is clearly revealing from the complaint itself as well as deposition of the complainant. 15. As noted above, none of the independent witnesses have supported the case of the prosecution and the officials of the Mines and Minerals Department are also not at all able to link to any of the accused with the crime in question and therefore, no case is made out by the prosecution. 16. The Record and Proceedings also clearly indicates that as against Mr. Kotvani - the complainant, respondent No. 1 made complaint as without seeking any consent from the higher official, the complainant has increased the rate of calculating official royalty from Rs. 2000/- to Rs. 2500/- per tractor and therefore, he had to withdrawn the said rate at the intervention of his higher-up and therefore, the complainant wrongly roped in the present respondents. 17. In view of the aforesaid nature of evidence, learned trial Court while dealing with the evidence on record, has recorded the findings on various points of determination and rightly dealt with the evidence on record. Under the circumstances, this Court is of the considered opinion that learned trial Court has rightly not believed the case of the prosecution and rightly given the benefit of doubt which does not call for any interference by this Court. 18. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. 19. In above view of the matter, this Court is of the considered opinion that learned trial Court was completely justified in acquitting the respondents of the charges leveled against them. This Court finds that the findings recorded by learned trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned Court below and hence finds no reasons to interfere with the same. 20. In the result, this appeal fails and accordingly, it is dismissed. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned Court below and hence finds no reasons to interfere with the same. 20. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.