Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 658 (GUJ)

PRAVIN CHINUBHAI MEHTA v. STATE OF GUJARAT

2019-07-02

R.P.DHOLARIA

body2019
JUDGMENT : 1. The present appellant accused was tried with accused Jaysukhbhai Ravjibhai Gondaliya and another accused Harshad @ Neta Jethabhai Patel – absconding accused. In the trial, the appellant was found guilty for the offence punishable under Sections 467, 468, 471, 489(A), 489(B) and 489(C) of the Indian Penal Code (hereinafter referred to as “IPC” for short) and by judgment and order dated 29.07.2015 passed in Sessions Case No. 290 of 2010, the learned Additional Sessions Judge. Court No.15, Ahmedabad sentenced him to undergo (i) rigorous imprisonment for 10 years with fine of Rs.10,000/- and in default of payment of fine, simple imprisonment for 2 years for the offence punishable under Sections 467 of IPC (ii) rigorous imprisonment for 5 years with fine of Rs.5,000/- and in default of payment of fine, simple imprisonment for 1 year for the offence punishable under Section 468 of IPC (iii) rigorous imprisonment for 10 years with fine of Rs.10,000/- and in default of payment of fine, simple imprisonment for 2 years for the offence punishable under Section 471 of IPC (iv) rigorous imprisonment for 10 years with fine of Rs.10,000/- and in default of payment of fine, simple imprisonment for 2 years for the offence punishable under Section 489(A) of IPC (v) rigorous imprisonment for 10 years with fine of Rs.10,000/- and in default of payment of fine, simple imprisonment for 2 years for the offence punishable under Section 489(B) of IPC and (vi) rigorous imprisonment for 5 years with fine of Rs.5,000/- and in default of payment of fine, simple imprisonment for 1 year for the offence punishable under Section 489(C) of IPC. All the sentences were ordered to run concurrently giving the benefit of set off. 2. Precise fact of the prosecution case may be stated that the present appellant on 31.07.2008 visited the Bank of India at Paldi Branch along with xerox copy of demand draft dated 07.07.2008 amounting to Rs.64,98,820/- issued by Bank of India of branch at Bombay in favour of Shri Sahajanand Education Trust and met the complainant, who at the relevant point of time, was serving as Branch Manager at Paldi Branch. The appellant inquired from the complainant that as to whether the said demand draft could be discounted or not. The appellant inquired from the complainant that as to whether the said demand draft could be discounted or not. As there was no practice of issuing demand draft of more than Rs.10 Lacs and the draft with which the appellant came was of Rs.64,98,820/-, on the spur of the moment, the complainant realizing that the draft was bogus one, asked for original one and that was handed over by the appellant to the complainant. Soon after, he lodged the complaint and the said draft was handed to the police. The panchnama came to be drawn and thereafter, the investigation was carried out. In the investigation, three persons were shown to be accused as stated above. 3. The appellant, by way of preferring the present appeal, inter alia contended that the Investigating Agency had at all not consulted the officials of the demand draft issuing branch of Bank of India at Bombay and directly sent the draft alleged to have been taken from the custody of the complainant for analysis to the Forensic Science Laboratory, which was found to be bogus and it was even without investigating or inquiring from the mouth of Shri Sahajanand Education Trust in whose favour, the said draft amounting to Rs.64,98,820/- came to be issued. It was also contended that the entire trial remained on presumption as if the present appellant along with absconding accused forged, created and tried to discount the draft and ultimately, on the premises of presumptions and surmises, the learned trial court wrongly convicted the appellant. 4. Learned advocate Mr. Himanshu Desai for the appellant, during the course of his arguments, has taken variety of contentions and argued that since the Investigating Agency has not carried out fair and thorough investigation, the appellant should be extended the benefit of doubt. He has argued that the Investigating Agency has failed to establish that the draft at Exh.10 was bogus, which could have been based only upon sending it to the issuing branch and that has not been done so far. He has further argued that similarly, the prosecuting agency has also failed to inquire from Shri Sahajanand Education Trust, in whose benefit, the alleged draft came to be issued. He has argued that Shri Sahajanand Education Trust stood in the capacity as beneficiary and not the present appellant. Such more contentions also came to be raised. 5. He has further argued that similarly, the prosecuting agency has also failed to inquire from Shri Sahajanand Education Trust, in whose benefit, the alleged draft came to be issued. He has argued that Shri Sahajanand Education Trust stood in the capacity as beneficiary and not the present appellant. Such more contentions also came to be raised. 5. On the other hand, learned Additional Public Prosecutor Ms. Hansa Punani for the respondent – State of Gujarat has argued that since the present appellant visited the Bank and personally met the complainant along with xerox as well as document at Exh.10 and also inquired as regards the possibility of discounting the same, he was found guilty for possessing the bogus demand draft. Learned APP has further argued that in view of factual scenario came to be established during the course of trial conducted before the learned trial court, the present appellant accused was rightly found guilty as he was found in possession of forged bank notes and thus, has rightly been convicted for the offence punishable under Section 489(C) of IPC. 6. Learned advocates for both the parties have taken this Court through the entire record & proceedings. The evidence on record was scanned and analyzed by this Court. The appellant accused himself presented the xerox copy as well as forged bank notes in the form of demand draft valuing Rs.64,98,820/- which came to be seized from him and handed over to the Investigating Agency. Consequently therefore, the learned trial court rightly found him guilty for the offence punishable under Section 489(C) of IPC. This Court has also noticed that there appears no evidence on record to show that the present appellant had in fact tried to use it as genuine. Even the prosecution has not led any concrete or any direct evidence that the present appellant has forged the said document. Merely possession was found from him. Consequently therefore, his conviction under Section 489(A) and 489(B) deserves to be quashed and set aside. Similarly, his conviction under Sections 467, 468 and 471 deserves to be quashed and set aside. 7. Even the prosecution has not led any concrete or any direct evidence that the present appellant has forged the said document. Merely possession was found from him. Consequently therefore, his conviction under Section 489(A) and 489(B) deserves to be quashed and set aside. Similarly, his conviction under Sections 467, 468 and 471 deserves to be quashed and set aside. 7. Learned advocate for the appellant has pointed out that since the appellant only inquired as regards the possibility of discounting the draft and had not made any further attempt and even he was not going to be benefited thereof directly and has already undergone the sentence of nearly four years, mercy be shown by reducing his sentence to the extent that he has already undergone. 8. On the aspect of sentence, Section 489(C) provides the sentence to the extent of 7 years. No minimum sentence is provided. In that view of the matter, considering the culpability and to the extent the appellant had acted, this Court deems it appropriate to reduce the sentence to the sentence already undergone by the appellant accused. 9. For the reasons recorded above, the appeal is partly allowed. So far as the convictions of the appellant accused recorded as per judgment and order dated 29.07.2015 passed in Sessions Case No. 290 of 2010 by the learned Additional Sessions Judge. Court No.15, Ahmedabad for the offence punishable under Sections 467, 468, 471, 489(A), 489(B) are concerned, the same are quashed and set aside. However, while maintaining the sentence imposed upon the appellant accused for the offence punishable under Section 489(C) is concerned, the same is reduced from 5 years to already undergone by the appellant for about 4 years with a fine of Rs.5000/- and in default of payment of fine, he shall further undergo simple imprisonment of three months. If payment of fine is made, the appellant shall be released forthwith, if no longer required in connection with any other offence. The judgment and order dated 29.07.2015 passed in Sessions Case No. 290 of 2010 by the learned Additional Sessions Judge. Court No.15, Ahmedabad stands modified to the above extent. 10. The record & proceedings be sent back to the concerned trial court forthwith.