Criminal Appeal No 453 of 1989
From the Judgment and Order dated 811988 of the Kerala High Court in Crl
A No 382 of 1986
G Ramaswamy Ashok K Sen G Viswanatha Iyer and R Satish for the Appellant
VC Mahajan A Subba Rao P Parmeshwaran and Mrs Sushma Suri for the Respondent
The Judgment of the Court was delivered by REDDY J
The Gold Control Act ws enacted in the year 1968 with the object of control of the production supply use and possession of and business in gold ornaments and articles of gold in the interest of economic and financial interests of the community
Section 27 of the Act lays down that no person shall commence or carry on business as a dealer unless he holds a valid licence issued under the provisions of the Act and the said licence should be in the prescribed form
Section 277b lays down that a licensed dealer shall not carry on the business as such dealer in any premises other than the premises specified in his licence
Section 4h defines dealer  as one who carries on the business of making preparing polishing buying selling supplying processing or converting gold whether for cash or for deferred payment or for commission remuneration or other consideration
795 The appellant before us was one such licensed dealer having a shop in a building which is four storeyed bearing Municipal No 25 A1479 on the Municipal Road Trichur Kerala
The showroom where the actual day to day business is conducted is in the ground floor
On 23981 Superintend ent of Central Excise examined as PW 1 raided the shop of the appellant and conducted a search
Books of accounts maintained by the appellant were verified and it was found that there was a stock of 1372 pieces of gold ornaments
The search party found 169 pieces of new gold ornaments in the third floor of the building weighing 667850 grams kept in a card board box
They were seized
On further investigation conducted by the officer it was also revealed that the appellant s brother his business associate had purchased some items of jewellery from another dealer and had also kept the same in the said licensed premises
A complaint was preferred against the appellant alleging that he has unac counted jewellery and that he was carrying on the business in the third floor which is not a licensed premises
The trial court flamed charges under Section 277b read with Section 851a and Section 553 of The Gold Control Act and necessary evidence was adduced
Failure to maintain the necessary accounts as a dealer is punishable under Section 553 and carrying on business in a premises other than the premises specified in the licence is punisha ble under Section 277b
The appellant inter alia took the plea that he is carrying on the business of gold only in the ground floor and the items therein have been accounted for including the items that were found in the third floor
He also took the plea that he sold these items to a customer and separated them and kept them in the third floor for the purpose of delivering the same to the purchaser and that the third floor also formed part of the licensed premises
The trial court on an appreciation of the evidence acquitted the accused holding that the prosecution has failed to prove that the accused had unaccounted jewellery and that he was carrying on business in an unlicensed prem ises
An appeal against acquittal was filed in the High Court of Kerala and the learned Judge confirmed the finding of the trial court in respect of charge under Section 55b
He however held that the third floor does not form part of the licensed premises
Therefore an offence punishable under Section 277b is proved and accordingly convicted and sentenced the appellant to three months  simple imprisonment and to pay a fine of Rs5000 in default to suffer a further period of two months
Questioning the same the present appeal by way of special leave has been filed
796 The learned counsel for the appellant submits that the High Court has misconstrued the provisions of Section 277b and at any rate in the instant case the High Court erred in interfering in an appeal against acquittal
It is also submitted that even if the prosecution case is to be accepted in this context what at the most can be said is that two views are possible and in such an event the inter ference in an order of acquittal is uncalled for
It is not in dispute that the appellant obtained a licence for carrying on the business
In the licence that was granted in the year 1975 and which was also renewed in the subsequent years upto 1977 the address of the premises is mentioed as No 25A1479
The Inspector in his cross examination admitted that the entire building bears only one municipal number and the licence was given for conducting the business in that building
The prosecution has not led any other evidence to show that the third floor does not form part of the licensed premises
That apart admittedly on each storey there is only a small room and the entire build ing is bearing only one municipal number and that is the premises beating that number which is mentioned in the licence
The question is whether the mere fact that the showroom is in the ground floor does necessarily lead to an inference that the gold ornaments which are accounted for cannot be stored in any other room in that building Section 27 reads as under 271 Save as otherwise provided in this Act no person shall commence or carry on business as a dealer unless he holds a valid licence issued in this behalf by the Adminis trator
2 A licence issued under this section a shall be in such form as may be prescribed
b shall be valid for such period as may be specified therein
c may be renewed from time to time and d shall be subject to such conditions and restrictions as may be prescribed
797 7a The Administrator shall specify in each licence granted to a dealer the premises in which such dealer shall carry on business and no other person shall carry on busi ness as a dealer in the said premises
b A licensed dealer shah not carry on business as such dealer in any premises other than the premises specified in his licence
The above principal question has to be examined in the light of this provision and see whether the appellant was carrying on business in any premises other than the premises specified in the licence
As already mentioned the entire building is given one municipal number and there is no other evidence in support of the prosecution case that the third floor of the building does not form part of the licensed premises
In any event under the facts and circumstances of the case one can at the most go the extent of saying that two views are possible
In Bhagwati and Others vs The State of Uttar Pradesh it is held Thus if the finding reached by the trial Judge can not be said to be unreasonable the appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record
This has been held to be so because the trial Judge has the advantage of seeing and hearing the witnesses and the ini tial presumption of innocence in favour of the accused is not weakened by his acquittal
The appellate Court therefore should be slow  in disturbing the finding of fact of the trial Court and if two views are reasonably possible of the evidence on the record it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it
 We are convinced that the view taken by the trial court is quite reasonable
Therefore viewed from any angle we are firmly of the view that there were no grounds for the High Court to interfere with the findings of the trial court acquitting the accused
The counsel for the State however pointed out that the High Court has observed at one place in the judgment that the counsel for the accused has not raised any contention that the room in the third floor also formed part of the licensed premises
Except making this 798 bare observation the High Court has not considered the plea taken by the accused and the finding of the trial court in this regard
In the same paragraph the learned Judge has however mentioned that the accused raised a contention in the trial court that the room in the third floor also formed part of the licensed premises and this plea found favour with the trial court
That apart the case of the accused has throughout been that room in the third floor formed part of the licensed premises
Therefore this observation of the appellate court that the counsel did not contend that the third floor formed part of the licensed premises does not appear to be correct
At any rate there is no such admis sion by the accused and nor can it be said that there was such a concession by the counsel for the accused
For all the aforesaid reasons the conviction and sentence awarded by the High Court are set aside
Accordingly the appeal is allowed
TNA Appeal al lowed


Summary:
Section 49 of the UP Consolidation of Holdings Act 1953 puts a bar on the civil and revenue courts in respect of disputes in regard to which proceedings could or ought to have been taken under the Act
The plaintiff appellant an illiterate lady wanted to make a gift of her properties in favour of her daughter
Defendant Nos 3 and 4 who undertook to make arrangements to execute and register the necessary deed however prac tised a fraud on her
They made her put her thumb impression on two documents which she had been told and she honestly believed were the gift deed in favour of her daughter
She had in fact executed two deeds one of which was a gift in favour of her daughter and the other a sale deed in favour of the defendants
Later when she tame to know of the facts she filed a suit for cancellation of the sale deed
Consoli dation proceedings were then pending in respect of the property in question
The suit was decreed by the trim court and that decree was confirmed in appeal by the First Appellate Court
The High Court however found that the plaintiff was totally deceived as to the character of the document which she had executed and the document was therefore void and of no effect whatsoever
Accordingly it held that the suit was barred by reason of section 49 of the Act
In the appeal by special leave it was contended for the appellant that since it was a case of the document having been vitiated by fraud the transaction was voidable but not void and therefore the bar of section 49 of the Act was not attracted
Dismissing the appeal the Court HELD 11 A voidable document is one which remains in force 800 until set aside and such a document can be set aside only by a competent civil court
A suit for that purpose would therefore be maintainable
A claim that a transaction is void is however a matter which can be adjudicated upon by the consolidation authorities
802E F Gorakh Nath Dube vs Hari Narain Singh  Ors   referred to 12 In the instant case the plaintiff appellant was totally ignorant of the mischief played upon her
She hon estly believed that the instrument which she executed and got registered was a gift deed in favour of her daughter
She believed that the thumb impressions taken from her were in respect of that single document
She did not know that she had executed two documents one of which alone was the gift deed but the other was a sale of the property in favour of the defendants
This was therefore a case of fraudulent misrepresentation as to the character of the document executed by her and not merely as to its contents or as to its legal effect
The plaintiff appellant never intended to sign what she did sign
She never intended to enter into the contract to which she unknowingly became a party
Her mind did not accompany her thumb impressions
It was thus a totally void transaction
804C E Ningawwa vs Byrappa  Ors   applied
No suit was therefore maintainable by reason of the bar contained in section 49 of the Act
804E 2
The remedy of the plaintiff lies in the proceedings pending before the consolidation authorities and it is open to the parties to approach them for appropriate relief
804F