( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 253 OF 1999 The State of Maharashtra .. Appellant Through Police Station, Biloli, Tq. Biloli, Dist. Nanded. Versus Deorao s/o. Bapurao Deshmukh .. Respondent Age. 50 years, Occ. Service, Auditor, Cidco, Nanded. Shri B.V. Wagh, A.P.P. for the appellant. Shri P.G. Godhamgaonkar, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 01.02.2010 O R A L J U D G M E N T :- 1. This is an appeal preferred by the State being aggrieved by the order of acquittal passed by the Chief Judicial Magistrate, Nanded, in R.C.C. No. 704 of 1996, decided on 05.02.1999, whereby present respondent is acquitted of offences punishable under sections 403, 409 of the Indian Penal Code. ( 2 ) 2. Brief facts leading to this appeal may be stated as below :- . Complainant – Tukaram Uyake was serving as Special Auditor in Co-operative Societies. He audited Vivid Karyakari Society, Kasarali, Tal. Biloli and found that on 23.02.1985 amount of Rs. 4096=60 was paid to the respondent towards audit fees for the audit which he has carried out for the period from 01.07.1983 to 30.06.1984. However, the respondent only deposited amount of Rs. 96=60 on 26.02.1985 and pocketed Rs. 4000/- and thus committed offences punishable under sections 403 and 409 of the I.P.C. 3. The defence of the accused is that he was not paid any amount. He is falsely involved in the case by Chairman and other servants of the co-operative society as he had filed report against them pointing out several instances of criminal breach of trust. He has not received amount of Rs. 4096=60 as claimed. He has not passed any receipt and the document is forged and false. The learned Chief Judicial Magistrate accepted the defence and passed order of ( 3 ) acquittal. 4. In this case the main evidence against the accused is of P.W.3-Gangaram Thakkarwad, who was Chairman of Vividh Karyakari Society, Kasarali, P.W.4-Babanna Kanmale, who was accountant and P.W.5-Sheshrao Lanke, who was working as a clerk in the society. As per evidence of all these three persons, for the audit that is carried out by the respondent, the respondent demanded orally cash amount of Rs. 4096=60. P.W.3-Gangaram said that as the auditor insisted on cash amount and refused cheque, he issued cheque of Rs. 4096=00 and handed over the cheque to a peon and the peon brought cash amount. It is further stated by P.W.3-Gangaram that at that time besides him, P.W.4-Babanna was also present. P.W. 5-Sheshrao handed over the amount to the respondent/auditor in their presence. Then respondent passed receipt Exh.34, which is proved by all the three witnesses having been issued by the respondent/accused. All the three said witnesses said that the receipt is signed in their presence by the respondent. However, it is further stated by P.W.3-Gangaram that the respondent did not produce challan, though they waited for 2-3 months and thereafter they sent letter dated ( 4 ) 28.04.1985 (which is at Exh.46). Thereafter, they sent another letter to Special District Auditor, Nanded on 10.08.1987 which is at Exh.47. Then they wrote third letter dated 23.09.1997 to the District Treasury Officer, Nanded. The District Treasury Officer by letter dated 23.09.1987 informed that only Rs. 96=60 were deposited by challan. It is also stated that the accused has issued letter dated 06.09.1985 stating that the receipt be handed over to him, so that he would send challan and other receipts and that letter is at Exh.50. 5. The respondent in his statement under section 313 of Cr.P.C. denied that he has issued receipt Exh.34. He also denied that he had sent letter Exh.50. He denied correspondence at Exhs. 46 to 50. Ordinarily evidence of three persons together with receipt Exh.34 would have been sufficient, but there are other circumstances which led the learned Chief Judicial Magistrate to arrive at the conclusion that this is a false case. 6. P.W.4-Babanna, the accountant admitted that receipt Exh.34 was maintained by the office. The audit was carried ( 5 ) out in 1985 by Auditor Hamberde. However, the receipt was not shown to the auditor Hamberde while carrying out audit for the year 1984-85. Hamberde did not call explanation of office bearers of the society about the receipt nor he asked explanation of the accused. Correspondence started from 1987 for the first time. Relying on the admissions of P.W.5- Sheshrao it is argued that alleged receipt passed by the respondent Exh.34 was not in existence. Ordinarily if it was there, it would have been shown to auditor Hamberde in the year 1984-85 and this shows that the receipt must not be in existence that time. 7. So far as receipt Exh.34 is concerned, it is not clear from the evidence of the witnesses that whether only signature was in the handwriting of the accused or even the contents were in the handwriting of the accused. P.W.3- Gangaram said that the receipt was passed by the accused. P.W.4-Babanna said that Exh.34 is receipt given by the accused and P.W.5-Sheshrao Lanke stated in his cross- examination that the receipt was signed by the accused. Though he said that it was given to him by the accused, it did not bear his signature. He said that the accused only ( 6 ) signed in his presence and then entry in the cash book and kird was taken in the name of the accused for payment. P.W. 3-Gangaram in his cross-examination stated that said receipt was signed by the accused on blank paper by writing contents. So, it was not clear whether the contents were signed by the accused. 8. In this case, as stated by the A.P.I. Bedre in his cross-examination, receipt Exh.34 was sent for opinion of a Handwriting Expert and opinion Article “A” was received and it is to the effect that no definite opinion regarding identity or otherwise of the disputed signatures can be given. 9. One of the best possible evidence which ought to have been produced on record is original challan of deposit of Rs. 96=60 in the Treasury. It would have disclosed as to who had deposited the amount of Rs. 96=60 in the Treasury. It is case of the prosecution that it was accused/respondent who had deposited said amount in the treasury and pocketed remaining amount of Rs. 4000/-. So, production of that challan would have made it clear if he had deposited the ( 7 ) amount. It is case of the accused/ respondent that the prosecution witnesses themselves deposited amount of Rs. 96.60 and he has not deposited the amount. In-fact, in letter Exh.50, dated 06.09.1985 it is said that the respondent/accused has called upon P.W.3-Gangaram to give him receipt passed by him and take away Challan. 10. P.W.4-Babanna has specifically admitted that present respondent has made report against Chairman Babanna himself and one Guzarwad about mis-appropriation of various amounts and the respondent was also directed to lodge complaint against them. It is stated that because of this report and subsequent complaint to police, false receipt is prepared and entry in the kird was taken in the name of the respondent. 11. In-fact, as stated by P.W.4-Babanna, practice is to deposit the amount in the treasury is by Challan and practice is not to hand over amount to the auditor. It is also argued that the complaint is lodged after 1 ½ years and not immediately and thus silence for a long time raises serious question. It has come in the evidence of P.W.1-Tukaram that ( 8 ) his predecessor Shri Viharkar has made complaint in writing against the respondent to even Commissioner, Aurangabad, on 29.09.1987 alleging that the accused had received amount of Rs. 4096=60, but did not deposit the amount in Treasury and he was directed to make enquiry. Accordingly he visited Seva Sahakari Society and verified the cash book entry dated 23.02.1985 and at that time he was shown receipt Exh.34. He also said that the accused sent letter to Chairman informing that he (accused) has deposited the amount of Rs. 4000/- by challan. 12. After going through the judgment and considering all circumstances, in my opinion, evidence does not prove case beyond all doubts. Though strong suspicion arises against the respondent and his entire conduct particularly in view of Exh.34 and letter Exh.50, still it remains in the domain of suspicion. Ordinarily, if the amount is legally to be deposited in the Treasury, in that case the accused/respondent would not have taken responsibility of depositing the amount. If he wanted graft, he would not press receipt. ( 9 ) 13. The learned advocate for the respondent relied upon case of Ghurey Lal V/s. State of U.P., 2008 (10) SCC 450. Their Lordships in the said case laid down principles regarding powers of Appellate Court in appeal against acquittal in para 72 and 73, which are as follows :- “72. The following principles emerge from the cases above: 1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law. 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong. ( 10 ) 73. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: i) The trial court's conclusion with regard to the facts is palpably wrong; ii) The trial court's decision was based on an erroneous view of law; iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; iv) The entire approach of the trial court in dealing with the evidence was patently illegal; v) The trial court's judgment was manifestly unjust and unreasonable; vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc. ( 11 ) vii) This list is intended to be illustrative, not exhaustive. 2. The Appellate Court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused. 14. Considering all the circumstances, this is not case where appeal should be allowed as the view taken by the Trial Court is possible view and cannot be said to be perverse view, particularly in view of report of handwriting expert to whom the documents were referred. In the result, the appeal is dismissed. [P.R. BORKAR,J.] snk/2010/FEB10/crap253.99