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2025 DIGILAW 1104 (GUJ)

State of Gujarat v. Kaysinh Dhulsinh Makwana

2025-09-18

S.V.PINTO

body2025
JUDGMENT : 1. This appeal has been filed by the appellant – State under Section 378 (1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the judgment and the order passed by the learned Sessions Judge, Sabarkantha @ Himmatnagar (hereinafter referred to as ‘the learned Appellate Court’) in Criminal Appeal No. 36 of 2010 on 28.02.2012, whereby, the learned Appellate Court has quashed and set aside the judgment and order passed by the learned Chief Judicial Magistrate, Himmatnagar, (hereinafter referred to as ‘the learned Trial Court), in Criminal Case No. 2473 of 1999 on 18.03.2010, whereby, the learned Trial Court convicted and sentenced the original accused to rigorous imprisonment of 5 years and fine of Rs.5,000/-, and in default, simple imprisonment of 07 days for the offence punishable under Section 408 of the Indian Penal Code . (hereinafter referred to as ‘the IPC’). 1.1. The respondent hereinafter is referred to as ‘the accused’ as he stood in the rank and file in the original case, for the sake of convenience, clarity and brevity. 2. The relevant facts leading to filing of the present appeal are as under: 2.1. Sub-Auditor, N.K. Nivedi, conducted the audit of Lalpur Milk Producers Co-operative Society, Lalpur (Gambhoi), Taluka Himmatnagar for the period from 01/04/1998 to 30/04/1998. At that time, the accused was serving as the Secretary of the Society and was responsible for maintaining accounts, record-keeping, collections, and custody of cash. During the audit on 16/09/1998, when the outstanding cash balance was verified and demanded, the accused failed to produce an amount of Rs.31,430.36 paisa. It was found that the accused had misappropriated the said amount for his personal use. Accordingly, after due procedure, a complaint was lodged at the Gambhoi Police Station which came to be registered at Gambhoi Police Station I-66 of 1999 under Section 408 of the IPC. 2.2. After registration of the FIR, the investigation was carried out by the concerned Investigating Officer and after having sufficient material against the accused, the charge sheet came to be filed against the accused before the Court of Judicial Magistrate, Himmatnagar, which culminated into Criminal Case No.2473 of 1999. 2.3. 2.2. After registration of the FIR, the investigation was carried out by the concerned Investigating Officer and after having sufficient material against the accused, the charge sheet came to be filed against the accused before the Court of Judicial Magistrate, Himmatnagar, which culminated into Criminal Case No.2473 of 1999. 2.3. The accused was duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code. A charge was framed by the learned Trial Court at Exh.15 and the statement of the accused was recorded at Exh.16, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution examined 05 witnesses and produced 09 documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP, the further statement of the accused under Section 313 of the Code was recorded wherein the accused denied the evidence on record. After hearing the arguments of the learned APP and learned advocate for the accused and after perusing the documents on record, the learned Trial Court, by the impugned judgment and order dated 18.03.2010, was pleased to convict the accused for the offence under Section 408 of the IPC and sentence him as mentioned above. 2.5. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the accused preferred Criminal Appeal No.36 of 2010 before the learned Sessions Court, Himmatnagar, whereby, the appeal preferred by the accused came to be allowed and the learned Sessions Judge, Himmatnagar quashed and set aside the judgment and order dated 18.03.2010 in Criminal Case No. 2473 of 1999 passed by the learned Chief Judicial Magistrate, Himmatnagar and acquitted the accused from the offence with which he was convicted. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court, the appellant – State has filed the present appeal mainly stating that the impugned judgment and order passed by the learned Appellate Court is illegal, arbitrary and without properly appreciating the facts of the case and the materials available on record. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court, the appellant – State has filed the present appeal mainly stating that the impugned judgment and order passed by the learned Appellate Court is illegal, arbitrary and without properly appreciating the facts of the case and the materials available on record. The learned Appellate Court has erred in appreciating the evidence and without there being cogent and substantial reasons, acquitted the accused. The learned Appellate Court has erred in appreciating the oral as well as the documentary evidences produced by the prosecution in its true spirit and straightway arrived at the conclusion that the prosecution has failed to prove the case beyond reasonable doubts. That the judgment and order passed by the learned Chief Judicial Magistrate, Himmatnagar is just, legal and proper and it does not require the interference of the the Appellate Court, and therefore, the order of acquittal passed by the learned Appellate Court requires to be quashed and set aside. 4. Heard learned APP Mr.Aditya Jadeja for the appellant – State. Though served, the respondent no.1 has not appeared either in person or through an advocate. Perused the impugned judgment and order of acquittal passed by the Appellate Court as well as judgment and order of conviction passed by the learned Trial Court and have re-appreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Mr.Aditya Jadeja for the appellant – State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the learned Appellate Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the case and has successfully proved the case against the accused but the Appellate Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by the learned Appellate Court is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by learned Appellate Court is based on inferences, not warranted by facts of the case and also on presumption, not permitted by law. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the accused guilty for the said offence. The judgment and order of acquittal passed by learned Appellate Court is based on inferences, not warranted by facts of the case and also on presumption, not permitted by law. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the accused guilty for the said offence. Learned APP has urged this Court to allow the present appeal and impose maximum sentence on the accused. 6. It is a settled principle of law that in an appeal against acquittal, the Appellate Court is circumscribed by limitation that no interference has to be made in the order of acquittal unless after appreciation of the evidence produced before the learned Trial Court, it appears that there are some manifest illegality or perversity which could not have been possibly arrived at by the Court. It is also a settled principle that there is no embargo on the Appellate Court to review the evidence but, generally the order of acquittal shall not be interfered with as the presumption of innocence of the accused is further strengthened by the order of acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case of the prosecution i.e. (i) guilt of the accused and (ii) his innocence, the view, which is in favour of the accused, should be adopted, and if the trial Court has taken the view in favour of the accused, the Appellate Court should not disturb the findings of the acquittal. The Appellate Court can interfere with the judgment and order of acquittal only when there are compelling and substantial reasons and the order is clearly unreasonable and where the Appellate Court comes to conclusion that based on the evidence, the conviction is a must. 7. As per the settled principles of law in acquittal appeal, the evidence of the prosecution on record is re- appreciated and PW-1 Manilal Arjunbhai Parmar examined at Exh.18 is the complainant and the witness has stated that as misappropriation of money from ‘Lalpur Milk Producers Cooperative Society Ltd.” has come on record, he was ordered to file a complaint on the basis of report of the District Registrar. Copy of the order to file a complaint is produced at Exh.19 and a copy of the complaint is produced at Exh.20. The witness has not supported the case of the prosecution and has been declared hostile. During the cross-examination, the witness has stated that he does not have any personal knowledge about the alleged misappropriation 7.1. The prosecution has examined PW-2 Andarsinh Motisinh Makwana at Exh.24 and PW-3 Andarsinh Becharsinh at Exh.61. Both these witnesses have specifically denied any knowledge of the alleged shortage or misappropriation and have not supported the case of the prosecution and have been declared hostile. The evidence of both the witnesses does not advance the prosecution case, but only weakens it. 7.2. The prosecution has examined PW-4 Bapusinh Udesinh Makwana at Exh.63 and the witness has stated that the accused was Secretary of the society and villagers had raised grievance about irregularities. However, in his cross- examination, he has candidly admitted that he had no personal knowledge about how the alleged misappropriation occurred or whether the accused himself had misused any funds. His evidence at best establishes the formal role of the accused as a Secretary but fails to prove any entrustment or misappropriation of the alleged amount. 7.3. The prosecution has examined PW-5 Nandubhai Kantilal Trivedi at Exh.76 and the witness has stated that on audit a shortage of Rs.31,430.39 paisa was noticed, and that when confronted, the accused had admitted to using the said amount for his personal needs. The witness has produced the audit report at Exhs. 80 to 82 and has the relevant registers. However, in the cross-examination, the witness has admitted that the records were not prepared by him. He had no personal knowledge of any financial transaction and his evidence is based entirely on audit books maintained by others. 8. On minute appreciation of the entire evidence of the prosecution, it is clear that the prosecution case is riddled with inconsistencies and serious lacunae. Out of five material witnesses, three have turned hostile. The only witness who supported the case is the auditor, who had lacked personal knowledge and relied solely upon account entries which are not legally sufficient to sustain conviction. The so-called admission of the accused before the auditor is not proved in accordance with law and cannot be treated as a voluntary confession. The only witness who supported the case is the auditor, who had lacked personal knowledge and relied solely upon account entries which are not legally sufficient to sustain conviction. The so-called admission of the accused before the auditor is not proved in accordance with law and cannot be treated as a voluntary confession. It is well settled that entries in books of account by themselves are not sufficient to charge a person with criminal liability and without independent corroboration, the auditor’s evidence falls short of the standard required in criminal jurisprudence to prove the offence beyond reasonable doubt. Moreover, entrustment of the alleged amount to the accused is a sine qua non for criminal breach of trust and the same is not established by any oral or documentary evidence and the prosecution has failed to prove its case beyond reasonable doubt. 9. In view of the above, the learned Appellate Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Appellate Court has appreciated all the evidence and this Court is of the considered opinion that the learned Appellate Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned Appellate Court are absolutely just and proper and no illegality or infirmity has been committed by the learned Appellate Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Appellate Court. This Court finds no reason to interfere with the impugned judgment and order passed by the learned Appellate Court and the present appeal is devoid of merits and resultantly, the same is dismissed. 10. The impugned judgment and the order passed by the learned Sessions Judge, Sabarkantha @ Himmatnagar in Criminal Appeal No. 36 of 2010 on 28.02.2012 is hereby confirmed. 11. Bail bond stands cancelled. Record and proceedings be sent back to the Concerned Court forthwith.