CR.A/25819/1991 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 258 of 1991 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus AMBALAL MATHURBHAI PATEL - Opponent(s) ========================================================= Appearance : MR MR MENGDEY, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 08/08/2008 ORAL JUDGMENT By preferring this appeal under section 378 of the Code of Criminal Procedure [ Cr. P.C.], the appellant – State of Gujarat CR.A/25819/1991 2/14 JUDGMENT challenged the legality and validity of the judgment rendered by the Ld. Sessions Judge, Vadodara on 17/1/1991 in Criminal Appeal No. 30/1988. By the impugned judgment, the Ld. Sessions Judge allowed the appeal preferred by the respondent herein and Ld. Sessions Judge was pleased to set aside judgment and order delivered by the Ld. Judicial Magistrate First Class, Padra Dist. Vadodara [for short 'Ld. Magistrate'] passed in Criminal Case No. 47/1986. The Ld. Magistrate by his judgment and order dated 29/10/1988 convicted the respondent herein who was original accused in Criminal Case No. 47/1986 for the offences punishable under sections 409, 477(A), 465 and 471 of the Indian Penal Code [IPC] and the accused was sentenced to undergo simple imprisonment of one year and fine of Rs.1,000/- for the offence punishable under section 409 of the IPC and was sentenced to undergo simple imprisonment of one month and fine of Rs.100/- for the offence punishable under section 477(A) of the IPC. No separate sentences were passed for the offences punishable under sections 465 and 471 of the IPC. 2. Feeling aggrieved and dissatisfied with the impugned judgment passed by the Ld. Magistrate, the original accused preferred criminal appeal in the Court of the Ld. Sessions Judge, Vadodara. The Ld. Sessions Judge admitted Criminal Appeal No. 30/1988 and after CR.A/25819/1991 3/14 JUDGMENT considering the record of the trial Court and after hearing arguments advanced on behalf of both the sides, delivered the impugned judgment in the appeal dated 17/1/1991 and was pleased to allow the appeal and the order of conviction and sentence passed by the Ld. Magistrate was set aside. The appellant – State of Gujarat challenged the legality and validity of the impugned judgment delivered by the Ld. Sessions Judge. 3. Ld. APP Mr. Mengdey for the appellant – State submitted that the impugned judgment delivered by the Ld. Sessions Judge is contrary to law and evidence on record. That the Ld. Sessions Judge failed to properly appreciate the oral and documentary evidence adduced before the Ld. Magistrate. That the Ld. Sessions Judge erred in observing that before launching prosecution against the respondent herein, who was original accused, a sanction was required. That as a matter of fact, the accused who was at the relevant time, performing his duties as Sarpanch and by fabricating false documents he misappropriated the Government money to the tune of Rs.527/- and thereby it cannot be said that the act committed by the accused can be said to be an act done while discharging his official duty. That therefore, the Ld. Sessions Judge committed serious illegality in arriving at the conclusion that the sanction was required for launching prosecution against the accused. That as a matter of fact, there CR.A/25819/1991 4/14 JUDGMENT is the sanction accorded by Development Commissioner to launch the prosecution. The sanction was produced by the prosecution in the aforesaid criminal case. It is further submitted that by virtue of the evidence of hand-writing expert, the prosecution was successful in proving that the hand-writing in the bill exh. 34 was that of the accused and not of the shop keeper witness Mr. Shaileshkumar. That therefore, by virtue of the documentary evidence coupled with the evidence of expert witness, it is proved beyond reasonable doubt that it was the accused who concocted the documents and misappropriated the Government money. That the Ld. Sessions Judge erred in coming to the conclusion that the opinion of the hand-writing expert was bias and that while according the sanction, the Development Commissioner had not applied his mind. That the Ld. Sessions Judge erred in holding that the prosecution suppressed material witnesses and adduced evidence revealing only one side of the picture. In fact, it is well settled that it is the prerogative of the prosecution to examine witnesses and even to decide which witness, who is not material witness, to be dropped. That therefore, no material witnesses were dropped and the prosecution examined relevant and material witnesses and was successful in proving its case. That there was no reason whatsoever for the Ld. Sessions Judge to interfere with the judgment delivered by the Ld. Magistrate convicting the accused for the CR.A/25819/1991 5/14 JUDGMENT offences charged against him and passing appropriate sentences. Therefore, it is submitted that the appeal be allowed and the impugned judgment delivered by the Ld. Sessions Judge be set aside and the judgment and order delivered by the Ld. Magistrate convicting the respondent accused for the offences charged against him and imposing required sentences for such offences be restored and the respondent accused be convicted and sentenced accordingly in accordance with law. 5. None appeared for the respondent – accused. 6. Before the evidence adduced in Criminal Case No. 47/1986 is appreciated or reappreciated, it is necessary to consider the case of Chandrappa V/s. State of Karnataka reported in (2007) 4 S.C.C. 415, wherein in connection with acquittal appeal under section 378 of the Cr. P.C., Hon'ble the Apex Court has observed as under :- (1)An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3)Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail CR.A/25819/1991 6/14 JUDGMENT the power of the court to review the evidence and to come to its own conclusion. (4)An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not be disturbed by the appellate court.” 7. Keeping in mind the ratio laid down by the Hon'ble the Apex Court in the aforesaid ruling, if the evidence adduced by the prosecution in Criminal Case No. 47/1986 is appreciated, it becomes clear that at the relevant time i.e., on or about 25/4/1982 the respondent accused – Ambalal Patel was Sarpanch in village Kural, Taluka Padra, Dist. Vadodara. That one electric motor pump which was installed to provide water in village Mobharod was burnt and, therefore, it became necessary to repair the electric motor. It is the case of the prosecution that for the purpose of repairing the electric motor, it was alleged to have been sent by the accused to one Shital Rewinding Works. After the rewinding work was over and the electric motor was reinstalled and was found in CR.A/25819/1991 7/14 JUDGMENT working condition, the accused tendered a bill of Rs.527/- spent for the purpose of reparation of the electric motor alleged to have been issued by one Shaileshbhai Dahyabhai in capacity as proprietor of Shital Rewinding Works. Talati-cum-Secretary witness Sharadchandra Shantilal Shah paid the amount of the bill. He posted necessary entries in the books of accounts. However, it was revealed that in fact there was no shop like Shital Rewinding Works in village Mobharod and the bill was forged and fabricated by the accused. Thereupon, D.D.O inquired from Shaileshbhai Dahyabhai, who was said to be proprietor of Shital Rewinding Works and witness Shaileshbhai replied in writing that there was no shop like Shital Rewinding Works in village Mobharod and as a matter of fact he had not received any amount. Thereupon, complainant Chhitabhai Rayjibhai, who was serving as Taluka Panchayat Officer, lodged criminal complaint on 24/1/1984 before the police against the present accused – Ambalal Patel as well as Talati-cum-Secretary Sharadchandra Shantilal Shah. Police registered the complaint and in pursuance to the complaint, investigation was made and ultimately charge-sheet was filed in the Court of the Ld. Magistrate only against the present accused, who was Sarpanch of village Kural. Ld. Magistrate framed charge against the accused for the offence punishable under sections 409, 477(A), 465 and 471 of the IPC. CR.A/25819/1991 8/14 JUDGMENT The accused did not plead guilty and, therefore, prosecution adduced oral and documentary evidence. The prosecution examined in-all 12 witnesses in the Court of the Ld. Magistrate and produced necessary documentary evidence. After the evidence was concluded by the prosecution, the Ld. Magistrate recorded further statement of the accused under sec. 313 of the Cr. P.C and the accused generally denied all the allegations levelled against him by the prosecution. After considering the evidence on record and after hearing arguments advanced by both the sides, Ld. Magistrate delivered the judgment in Criminal Case No. 47/1986 on 29/10/1988 and as stated above, the Ld. Magistrate came to the conclusion that the prosecution proved its case beyond reasonable doubt against the accused and was pleased to convict the accused for the offences charged against him and passed necessary order of sentence as stated above against the accused. Said judgment was challenged by the accused and as observed above, Ld. Sessions Judge by allowing the appeal, set aside the order of conviction and sentence passed by the Ld. Magistrate and accused was acquitted. 8. Now in the impugned judgment, Ld. Sessions Judge, about the sanction for launching prosecution against the accused, observed that at the time of filing charge-sheet or at the time when the Ld. Magistrate CR.A/25819/1991 9/14 JUDGMENT framed charge against the accused for the offences alleged against him, no sanction was produced on record. That therefore, it was material irregularity committed by the prosecution. However, the Ld. Sessions Judge further observed that it is true that during the course of evidence, the prosecution produced the sanction issued by the Development Commissioner for launching the prosecution. Now the material aspect is this that the Ld. Sessions Judge, considering the sanction produced by the prosecution on record, observed that the bare reading of the sanction order clearly reveals that at the time of according the sanction, no relevant papers were placed before the sanctioning authority and mechanically, sanction was given. Referring certain judgments, the Ld. Sessions Judge held that the sanction if accorded by the sanctioning authority without application of mind and without examining relevant papers, loses its credibility and such sanction order can be said to be bad in law. Considering exh. 9, which is the sanction order dated 29/5/1985 passed by the Development Commissioner of the State of Gujarat, it only transpires that one letter dated 11/4/1985 sent by D.D.O. Vadodara to the sanctioning authority was only perused and referred at the time of issuing the sanction order. No other relevant papers were either placed before the sanctioning authority nor the same were procured by him before according the sanction. Therefore, keeping aside the fact that the criminal CR.A/25819/1991 10/14 JUDGMENT complaint was filed by Taluka Panchayat Officer Mr. Chhitabhai Rayjibhai against the present accused as well as Talati-cum-Secretary on 24/1/1984 and the sanction for launching the prosecution against the present accused as well as Talati-cum-Secretary was issued by the Development Commissioner on 29/5/1985, almost after about more than one year from the date of filing of criminal complaint against the accused, the fact remains that even while issuing belated sanction order, the sanctioning authority did not consider any relevant papers before issuing the sanction. Under such circumstances, it cannot be said that while dealing with the aspect of sanction in the impugned judgment, the Ld. Sessions Judge committed any illegality or irregularity in coming to the conclusion that the sanction was bad in law. 9. However, perusing the impugned judgment delivered by the Ld. Sessions Judge, it clearly transpires that the Ld. Sessions Judge took into consideration the entire oral and documentary evidence adduced by the prosecution in the aforesaid criminal case before the Ld. Magistrate. Criticizing the deposition of important witness, who is none other than Shaileshbhai Dahyabhai, who is examined at exh. 12, the Ld. Sessions Judge rightly observed that no reliance can be placed upon the deposition of this witness Shaileshbhai. As per the case of prosecution, the accused concocted a story that the electric motor was repaired by this witness CR.A/25819/1991 11/14 JUDGMENT Shaileshbhai in his shop called Shital Rewinding Works and Shaileshbhai issued the bill exh. 34 for the sum of Rs.527/-. It is the case of the prosecution that in fact in village Mobharod there was no shop like Shital Rewinding Works and the bill exh. 34 did not bear the handwriting of Shaileshbhai. The said witness Shaileshbhai in his deposition though stated that the bill exh. 34 did not bear his handwriting and he never repaired the electric motor but while considering the deposition of the Investigating Officer [I O] it has come in evidence that in the shop of Shaileshbhai one rubber stamp was found bearing the name of Shital Rewinding Works. Ld. Magistrate relying upon the deposition of Shaileshbhai as well as handwriting expert witness Manohar Mohandas came to the conclusion that the bill exh. 34 was in the handwriting of the accused. However, scrutinizing the evidence adduced by handwriting expert, Ld. Sessions Judge rightly observed that the handwriting expert did not opine about the handwriting of witness Shaileshbhai. Handwriting expert Mr. Manohar Mohandas clearly admitted in his cross-examination that in fact police had sent to him the specimen handwriting vide B-12 and C-12, but he has not given any opinion regarding said handwriting. Handwriting expert Manohar Mohandas in his cross-examination clearly admitted that he was required to give his opinion as per the demand made by the police. The Ld. Sessions Judge in the impugned judgment CR.A/25819/1991 12/14 JUDGMENT discussing this aspect of the matter in great detail in paras. 9 and 10 in the judgment rightly came to the conclusion that no reliance can be placed upon the evidence adduced by witness Shaileshbhai and the handwriting expert witness Manohar Mohandas. 10. Moreover, it is pertinent to note that Talati-cum-Mantri Sharadchandra Shantilal Shah, who was though referred in the complaint lodged by Taluka Panchayat Officer before police as co-accused, the I.O dropped him as an accused and filed charge-sheet only against the present respondent – accused. Said Sharadchandra Shah was examined as witness at exh. 35. The Ld. Sessions Judge, therefore, rightly observed that though in the complaint he was considered by the complainant as co- accused, but his name was deleted by the police at the time when charge- sheet was filed, his evidence should be scrutinized carefully. Considering the deposition of Talati-cum-Secretary Sharadchandra Shah, he clearly admitted that the electric motor was damaged and burnt. He admitted that the same was repaired and reinstalled and after reparation the electric motor was functioning properly. However, in his cross-examination at one point of time he stated that he had paid in-all Rs.588/- to the accused. He deposed that he paid Rs.388/- in cash and had withdrawn Rs.200/- from the post office wherein there was an account of Gram Panchayat. Ld. Sessions Judge rightly observed that no evidence regarding CR.A/25819/1991 13/14 JUDGMENT withdrawal of Rs.200/- from the post office was produced by the prosecution. It was further observed that in fact the bill exh. 34 was of Rs.527/- and Talati-cum-Secretary Sharadchandra Shah deposed that he paid Rs.588/- to the accused. Such conduct on the part of this witness clearly suggested that with a view to save his skin, he was bent upon to involve the accused at any rate. This witness Sharadchandra in his cross- examination clearly admitted that it was his function to maintain the accounts of the panchayat and to see that due verification is made at the time of making any payment. 11. In the impugned judgment, the Ld. Sessions Judge further observed that two witnesses whose statements were recorded by the I O namely, Manubhai and Ghanshyambhai were purposefully dropped by the prosecution. It was observed that the I O clearly deposed in his deposition that he had recorded statements of both these witnesses and it had come in evidence during the investigation that Manubhai had paid the sum of Rs.527/- to witness Shaileshbhai. Under such circumstances Ld. Sessions Judge observed that the prosecution should have examined both these witnesses to bring on record the correct picture of the case. Lastly, in the impugned judgment the Ld. Sessions Judge has clearly observed that no dishonest or criminal intention was proved by the prosecution and it was an admitted fact that the electric motor was burnt and the same was CR.A/25819/1991 14/14 JUDGMENT repaired and was reinstalled and after its reparation it was working properly and till date nobody came forward to demand repairing charges of the electric motor. That therefore, the prosecution failed to prove that the repairing charges were not paid to witness Shaileshbhai. 12. Thus, in the impugned judgment the Ld. Sessions Judge elaborately and in great detail, discussed the relevant aspects of the case of the prosecution and appreciated and reappreciated the evidence adduced on record by the prosecution in the criminal case. There is nothing that the impugned judgment delivered by the Ld. Sessions Judge can be said to be perverse or contrary to the evidence on record or that any illegality or irregularity was committed by the Ld. Sessions Judge while delivering the impugned judgment and reversing the judgment and order passed by the Ld. Magistrate. In the result, there is no reason whatsoever for this appellate Court to interfere with the impugned judgment delivered by the Ld. Sessions Judge. Therefore, the appeal deserves to be dismissed and it is hereby dismissed. ( J .C. UPADHYAYA, J. ) *Pansala.