•^ ^-^-v-^-V-^-L- ^•... . ! ^^ ^ ......^.,.-,.....-...^,....,,,.....,.. ^ ^ ^ BI THE HIGH COURT OF JUDICA3iUREs AT-JABAIPUR<*- L • • • • CF0000063560 M APPEU-JNT:_ \';\- 'r'y. -M^. y ^ ^r.ea8THer_^^_/l99 Cr» Appeal No. v\^\\^<^^ A999 State of M<P» tbrougb Police Station Sogbat District Koria (M.P.). V/s RESPONDEHTSL 1.E- Mabendraaath S/©Premshankar, aged 52 years, R/@ BaUauathpur 3>\^,\s0"^w 2. ^ Sitaraa S/o Jiutram, R/o Kathgodi aged 45 years, s»v^.Kov<u\ . f^ ^ ^" -^' 5. ^ Anwarulfauq S/o Molad. Ishaq, 56 years R/o Baikunthpur, -3>^^ »Ko"r^<\ <»• 4. ^Neelkaath S/o Shrldhar Kulkarni, afed c<<^\^t -.:? €^ ^ •c^- 40 years R/©Bailmathpur Distrlct ,Koria (M.P.) • ^LJ/ ^^\e^ ^PPLICASION FOR LEAVE TO APEEAL U/s 378(5) AND APPEAL S/s 378(1)0F Cr.P.Cs. ^ HIGH COURTOFCHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) CRIMINAL APPEAL No. 1131/2000 APPELLANT State ofMadhya Pradesh VERSUS RESPONDENTS Mahendranatih ahd others. ShrS Akhil Mishra Dy. GA for the appellant/State. Shri A.K. Prasad counsel for the respondent No.1 Shri A.N. Pandeycounsel for respondent No.2. Shri Mahendra Dubey counsel for respondents 3 and 4. APPEAL UNDER SECTION 378 (11 OF THE CODE OF CRtMINAL PROCEDURE. JUDGMENT (21.04.2010) This appeal has been fiied against the impugned judgment dated 10.5.1999 passed by Chief Judicial Magistrate, Baikunthpur, in Criminal Case No. 34/1986 acquitting the respondente/accused of the offence punishabte under Sections 420.409, 468,471-A and 120-B iPC. 2. Brief facts of the case are that under the scheme introdu(%d by State Government commonly known as Integrated Rural Development Programme (1RDP for short) two miiking animals (cow and/or buffalo) were to be distributed to the beneficiaries. Further case of the prosecution is that though on paper, number of beneficiaries have been shown to have received the milking animals but in fact they have not received thesame. It is stated that on the arrival of Prime Minister in the area, some complaint was made to him. Subsequently, an enquiry was directed to be conductedi by Assistant Director, Agriculture namely Bhairon Prasad Khare (PW-08).\ In theenquiry, itwas found that number of beneficiaries have not received 'i the milking animals and thereby respondents/accused have committed an ^ offence under various sections. Further case of the prosecution is that at the relevant time respondent No.1 Mahendranath was the Branch Manager ofthe Regional Rural Bank, respondent No.2 - Sitaram was ttie Gram Sewak under the Agriculture Department and respondents 3 and 4 were the villagers acting as mediators. In some of the cases respondent No.3 was the vendor of the animals and deceased/accused - Hansraj WQS also involved in the commission of the offence whereas deceased/respondent No.5 Neelkanth was the Vetennary doctor who had i ^SSS^ 1 ,^-^/ % -•2-— ^ issued the health certificate in respect ofthe milking animals. It is alleged that during the enquiry conducted by Bhairon Prasad Khare (PW-08), one Nand Kumar Sonpakar (PW-07) did the physical verification oftheanimals and found that animals were not djstributed to the beneficiaries. 3. So as to hold the accused/respondents guilty theprosecution has examined 15 witnesses. Statements of the respondents/aocused were also recorded under Section 313 of the Code of Criminal Procedure in which they pieaded their jnnocence and falseimpljcation in the case. 4. After hearing the parties the Court below has acquitted the respondents/accused ofthe charges levelled againstthem. 5. Counsel for the appellant/Statesubmits that on the basis of material available on record the Court below ought to have convicted ttie respondents/accused for the offences mentioned above but having ignored the evidence available on record it has falten in a grave error of law in awarding acquittal to them. He submits that despite the fact that Bhairon Prasd Khare (PW-08) and Nand Kumar Sonpakar (PW-07) have supported the case of the prosecution, merely on the basis of detaiied enquiry conducted by Bhairon Prasad Khare (PW-08) the Court below ought to have convicted therespondents/accused. According to hlm in a case of mass cheating where number of vjllagers have been cheated and even if the villagers so cheated have not deposed anything against the respondents/accused, merely on that basis they ought not to have been acquitted. He submits that report of the enquiry officer ought to have been gh/en much weight ignoring the other evidence. He submits that similar is the statement of Nand Kumar Sonpakar (PW-07) where after due verification he has stated that the beneficiaries have not received ther milking animals. \ 6. On the other hand counsel for the respondents/accused support the impugned judgment and submit that in the present case even the complainant namely Mohar Sai has not been examined bythe prosecution and from the record it is clear that he has not made any complaint whatsoever to anyone on the basis of which the responctents can be prosecuted. It is argued that even the persons who stood surety have not supported the case of the prosecution. It is argued that the enquiiy offlcer namely Bhairon Prasad Khare (PW-08) has admitted that he was not legally competent to conduct the enquiry and no beneficiary has made any complaint before him. It is argued that the alleged incident is said to have ^" -3— taken place in the year 1982 whereas the FiR has been registered on 30.10.1985 and there is no reasonable explanation for such inordinate delay in making the so called complaint.It is argued that socalled report of Bhairon Prasad Khare is not a part of the charge sheet nor it was produced before the Court at the time of trial and in the absence of the said report, even if Bhairon Prasad Khare (PW-08) has sated against the respondents/accused, they cannot be convicted. 7. Star witness Bhairon Prasad Khare (PW-08) has stated in his evidence that from 1979 to 29.9.1989 he was working as Assistant Director, Agriculture and was posted at Gramin Vikas Abhikaran, Ambikapur. He has stated that at the time of visit of the Prime IVIinister, the villagers of village Katgodi had made a complalnt and on veriflpation itwas found that 10 beneficiaries had not received the first one animal out of the two for which they were entitied. This witness had conducted an enquiry in which he found that the respondents and other accused persons have committed the offence. This witness has however admitted the fact that he was not the confroiling authority as he was not having the charge of that particular area but it was one N.P. Mishra who was having the charge of the said area. This witness has further stated that when he vislted the area, no complaint whatsoever was made to him. This witness has however admitted the fact that while giving the loan in favour of the beneficiaries, monitoring card was prepared in four copies ~ one for the beneficiaries, one for Block Development Officer, one to be kept by Bank Manager and one to be kept in the office record of DRDA. He has stated that during enquiry though the monitoring card was demanded by him, the same was not given to him. This witness has further admitted that he was directed by the Chief Executive Officerto conductthe enquiry but no such order has been filed or produced by him at the time of trial nor the same' has been proved. Thus the very basis regarding authorization of Shri Bhairon Prasad Khare to conduct the enquiry is missing in the case in hand. Thiswitness has also admitted the fad: that at the time of enquiry he had recorded the statements of various persons but names of those persons have not been shown alongwitti the challan nor copy ofthe same has been filed with it. Similar is the position with the statement of Nand Kumar Sonpakar (PW-07) in which he has exptained the part of the procedure. This witness has however admitted thatno comptaint was made to him by any of the beneficiaries and no communteation has been made from the office of the Block Development Officer. Admittedly, the complainant Thakuri has not been examined by the prosecution and thus ^^'. ;^?^.;v' -(/- there remains nothing but for the statement of Bhairon Prasad Khare (PW- 08) who had made the enquiry against the accused/respondents. The triat Court has considered the entire case of the prosecution and passed the judgment of acquittal having appreciated the evtdence avaitable on record. 8. Thus after going through the material avaitable on record and bdng very much conscious of the existing legal position that in an appeal against acquittal if two views ar©possible on the basis of evldence led by the comptainant and the trial Court taklng one view favoured the accused, this Court is of the considered opinion that reversion 6f the findings of acquittal by the appellate Court taking the other possibte view into consideration, is not permissibte in law and therefore the judgment impugned acquittSng the respondents /accused of the offences under Sections 420. 409,468,471-A and 120-B IPC, is just and proper and does not warrant any interference by this Court. Accordingly, the appeal being without substance is liable to be dismissed and it isdismissed as such. Sd7- Pritinker Diwaker Judge Q^