CR.A/1112/1997 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1112 of 1997 For Approval and Signature: For Approval and Signature : HONOURABLE MR. JUSTICE Z.K.SAIYED 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 JAGDISHBHAI MANSUKHBHAI CHHAPIYA & 1 – Opponent(s) ========================================================= Appearance : MS ARCHANA RAVAL, APP, for Appellant(s) : 1, MR ASHISH OZA, for MR KB ANANDJIWALA for Opponent(s) : 1, NOTICE SERVED for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 13/03/2008 ORAL JUDGMENT CR.A/1112/1997 2/8 JUDGMENT 1. The present acquittal Appeal has been filed by the State, under Section 378 Cr.P.C., against the Judgment and order dated 17.5.1997, rendered by the learned Chief Judicial Magistrate, Rajkot, in Criminal Case No.3599 of 1984 for the offences punishable under Sections 408, 409, 465, 467, 468, 477-A of Indian Penal Code. For the same offence another Criminal Appeal No.1111 of 1997 has been filed against the same accused – respondent herein, arising from Criminal Case No.3598 of 1988. The said Judgment of the trial Court has been challenged by the State on the ground that the Judgment and order passed by the learned Chief Judicial magistrate is against the law and evidence on record. 2. According to the prosecution case, the complaint was filed against the present respondent (original accused), who was serving as Cash Clerk in the Octroi Department of the Rajkot Municipal Corporation, alleging that with intention to commit breach of trust, the accused – respondent herein has misappropriated the amount of Rs.652.15 ps. after preparing bogus documents like refund order, voucher and form No.11, and thereby committed criminal breach of trust and has committed the fraud with the Corporation. Thereafter, the police has carried out the investigation and then the charge-sheet was filed against the present respondent and the charge was framed against the respondent – CR.A/1112/1997 3/8 JUDGMENT accused. The accused pleaded not guilty to the charges. Then the prosecution led oral as well as documentary evidence and then at the conclusion of the trial, the learned trial Judge has found no substance in the prosecution case and, therefore, acquitted both the respondents – accused from the said offence vide impugned Judgment and order. The said Judgment of the trial Court has been challenged by the State on the ground that the Judgment and order passed by the learned Magistrate is against law and evidence on record. 3. I have heard learned A.P.P. Ms. Archana Raval on behalf of the appellant – State Government and learned Advocate Mr. Ashish Oza, appearing on behalf of the respondents – accused. I have also gone through the Judgment and order passed by the trial Court. 4. Learned A.P.P. Ms. Archana Raval has contended that the trial Court has not considered the evidence, oral as well as documentary, in a legal manner. She contended that from the evidence of the complainant itself it established that the prosecution has proved its case beyond reasonable doubt and the Judgment and order passed by the trial Court is required to be set aside. 5. Learned Advocate Mr. Oza, appearing on behalf of CR.A/1112/1997 4/8 JUDGMENT the respondents – accused has contended that the prosecution has failed to establish the main ingredients of offence of criminal breach of trust, fraud, cheating, etc. Substantial and compelling circumstances, good and sufficient grounds, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. He has also contended that the prosecution has not come with a case that the respondent No.1 was entrusted with the said work in his official capacity. He has also contended that the prosecution has failed to establish that the respondent has committed an offence of criminal breach of trust or fraud or cheating. He has also contended that there is not a single iota of evidence to show that how, when and in which manner the respondent had prepared a bogus document with regard to the same offence and the prosecution has failed to prove that the respondent has committed offence of preparing the bogus documents with the intention to misappropriate the amount and to cheat the Corporation. Lastly, Mr. Oza contended that the Judgment and order of the trial Court is proper and legal and, therefore, the present Appeal is required to be dismissed. 6. I have gone through the entire evidence of prosecution and appreciated the documentary as well as oral evidence and also gone through the Judgment of the trial Court and also the legal CR.A/1112/1997 5/8 JUDGMENT submissions made by both the learned Advocates. The prosecution is required to prove the main ingredients of the offence to establish that the respondent No.1 was entrusted with the said work. From the evidence it appears that except the complainant nobody has stated anything to support the prosecution version. Even from the cross examination of the complainant it appears that the complainant has no personal knowledge and simply he has filed complaint. 7. The Hon'ble Apex Court in the case of STATE OF KARNATAKA v/s. HEMAREDDY, reported in AIR 1981 SC 1417, has observed that when the Appellate Court agrees with the reasons and the opinion given by the lower Court then the re-discussion of evidence is not necessary. In CHANDRAPPA & ORS. v/s. STATE OF KARNATAKA, reported in (2007) 4 SCC 415, it has been observed by the Hon'ble Supreme Court that where two views are possible on evidence on record, one taken by trial Court in favour of accused should not be disturbed by appellate Court. In the said decision the Hon'ble Apex Court has highlighted the powers of the Appellate Court while dealing with the Appeal against the order of acquittal and has observed as under: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an CR.A/1112/1997 6/8 JUDGMENT appeal against an order of acquittal emerge : (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, mboth on questions of facts and of law. (3)Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “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 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 CR.A/1112/1997 7/8 JUDGMENT 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 conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.” 8. In the case of KALLU v/s. STATE OF M.P., reported in (2006) 10 SCC 313, the Hon'ble Court has observed, as under : “8. While deciding an appeal against acquittal, the power of the appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial Court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial Court merely because a different view is possible. The appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial Court.” 9. From the above discussion it appears that the prosecution has failed to establish its case and in light of the above decision of the Hon'ble CR.A/1112/1997 8/8 JUDGMENT Supreme Court the present Appeal has no merit and the same is required to be dismissed. 10.It is settled legal position that in acquittal Appeal, the Appellate Court is not required to re-write the judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondent – accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this Appeal requires to be dismissed. 11.In the result, the Appeal is hereby dismissed. The impugned Judgment and order dated 9.6.1999 passed by the learned Chief Judicial Magistrate, Rajkot in Criminal Case No.3598 of 1984, acquitting the respondent – accused, is hereby confirmed. Bail Bond shall stands discharged. (Z.K.SAIYED,J.) sas