IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 583 of 1992 with CRIMINAL REVISION APPLICATION No 172 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- STATE OF GUJARAT Versus MANIBHAI DESAIBHAI VAGHELA -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 583 of 1992 Ms Kathaben Gajjar, APP, for the Appellant MR K.B. ANANDJIWALA, for Respondent No. 1 2. Criminal Revision ApplicationNo 172 of 1992 MR AJ PATEL for Petitioner Ms Kathaben Gajjar, APP, for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 05/05/2000 CAV JUDGEMENT #. These two criminal matters are filed to challenge the judgement exh.118 dated 26.12.1991, rendered by the Judicial Magistrate First Class (Shri B.A.Gadhvi), Anand (who will be referred to herein after as the "learned Magistrate" for the purpose of brevity and convenience) in Criminal Case No.3159 of 1982 which was there on his file whereby he acquitted the accused u/s 248(1) of Criminal Procedure Code, 1973 (Cr.PC for short) for an offence punishable under Section 408 of the Indian Penal Code 1860 (IPC for short). #. The State Government has preferred Criminal Appeal No.583 of 1992 against the aforesaid order of acquittal passed by the learned Magistrate while original complainant has filed Criminal Revision Application No.172 of 1992 under Section 401 read with Section 397 of Cr.PC challenging the correctness, legality and propriety of the aforesaid acquittal order dated 26.12.1991 passed by the learned Magistrate, by rendering his judgment in Criminal Case No.3159 of 1982. #. As these two matters have arisen from out of one common judgement of acquittal rendered by the learned JMFC in Criminal Case No.3159 of 1982 on his file, these two matters are disposed of by this common judgement. #. The facts leading to the present two criminal matters are in nutshell as follows:- #. The respondent in Criminal Appeal No.583 of 1992 and Revision-Opponent in Criminal Revision Application No.172 of 1992 is the same person named, Manibhai Desaibhai Vaghela who was accused in Original Criminal Case No.3159 of 1982. The Revision-Petitioner in Criminal Revision Application No.172 of 1992 is Shri Rohitkumar J Patel who was original complainant of Criminal Case No.3159 of 1982. For the sake of convenience, respective parties will be referred to as the complainant and accused hereinafter. As per complaint at exh.90 dated 16.02.1982 the case of the complainant Shri Rohitkumar Jasbhai Patel against the sole accused Manibhai Desaibhai Vaghela, can be summaried as follows:- #. The complainant is a businessman running following three different sister concerns at Anand, namely, (i) Puja Sales Corporation, (ii) Swastik Sales Corporation, and (iii) Rajashree Trading Corporation. #. The complainant is carrying on his business in 3 different names of firms as aforesaid at Jamesons House, Subhash Road, Anand. The complainant is managing the business affairs of the aforesaid 3 firms. The complainant is carrying on his business of household flourmill, refrigerator and domestic appliances in the name and style of aforesaid firms at serial no.1 and 2 while he is carrying on business of electric motors in the name and style of firm at serial no.3 as aforesaid. #. It is the specific case of the complainant that the accused joined his services in Swastik Sales Corporation for the first time in the year 1970 and subsequently in the year 1973 he was entrusted with the work of cashier in the firm Swastik Sales Corporation. Thereafter, in the year 1974-75 the accused was entrusted with the work of cashier in the remaining two other firms. Thus, it is the case of the complainant, that accused was serving in the aforesaid 3 firms and was handling the work of cashier for the said 3 firms. Stating about the duties of the accused, the complainant has stated that accused as cashier was doing the work relating to receiving of cash and making of payment of cash relating to all business transactions of the aforesaid 3 firms, writing of cheques, calling for the cash by drawing cheques from the banks, depositing of the cash amounts in the banks etc. He was also preparing vouchers and account-statements for day-to-day business of the aforesaid 3 firms. The accused was also doing the work with regard to tallying of the accounts with the bank accounts. (A) It is the case of the complainant that accused drew an amount of Rs.26,000/- by following four items from Swastick Sales Corporation by preparing false debit/credit vouchers for depositing that amounts in the banks. Rs.3,000/- on 27.1.1979 Rs.5,000/- on 23.6.1979 Rs.5,000/- on 25.7.1979 Rs.13,000/- on 24.1.1980 ---------- Total Rs.26,000/- ---------- (B) It is also the case of the complainant that the accused had taken with him following two cheques signed by the complainant with an endorsement of "self" in the column of "pay to" and drew an amount of Rs.6,000/- by encashing those two cheques from Anand Mercantile Co-op. Bank Limited of Anand and accused failed to credit that amount in the books of accounts of Swastik Sales Corporation and thus accused has embezzled a total amount of Rs.6,000/-. (1) Rs.2,000/- by cheque no.42152 dated 26.11.77 (2) Rs.4,000/- by cheque no.73506 dated 19.01.79 ========== Total. Rs.6,000/- #. It is the case of the complainant that accused withdrew a cash amount of Rs.4,000/- by preparing the following false debit vouchers, from the cash of Pooja Sales Corporation and did not deposit said amount in the bank. (1) Rs.2,000/- on 13.9.1979 (2) Rs.2,000/- on 11.10.1979 =========== Total: Rs.4,000/- ##. It is the case of the complainant that accused had withdrawn Rs.6,000/- from the cash of Rajashri Trading Company by preparing false debit vouchers by following two items and did not get those amounts credited in the Anand Mercantile Coop. Bank:- (1) Rs.5,000/- on 10.10.1979 (2) Rs.1,000/- on 08.09.1979 ========== Total: Rs.6,000/- It is also the case of the complainant that accused encashed cheque no.78723 dated 5.1.1980 drawn by Rajshri Trading Company, as drawee for Rs.3,000/- and did not credit that amount in the account books of Rajashri Trading Company. Thus, it is the case of the complainant that the accused has embezzled in all Rs.9,000/- of Rajashri Trading Company. Thus, in short, it is the case of the complainang that the accused has committed an offence of criminal breach of trust for in all Rs.45,000/- from three different firms of the complainant as follows:- (1) Rs.32,000/- from Swastik Sales Croporation (2) Rs. 4,000/- from Puja Sales Corporation (3) Rs. 9,000/- from Rajashri Trading Company =========== Total:Rs.45,000/- It is the case of the complainant that accused in his capacity as cashier of the aforesaid three different firms committed an offence of criminal breach of trust in respect of Rs.45,000/- as aforesaid and further that he has also committed an offence of cheating as defined u/s 415 of the IPC by dishonestly inducing the complainant to make delivery of the aforesaid total amount of Rs.45,000/- to him. ##. Giving aforesaid particulars in detail in his complaint, the complainant lodged his complaint exh.90 in the court of the learned Magistrate on 16.2.1982. That private complaint came to be registered as Inquiry No.31 of 1982. The learned Magistrate sent that complaint for police investigation u/s 156(3) of Cr.PC and that complaint came to be registered as C.R. No. M Case No.18 of 1982 on 20.3.1982 in Anand Town Police Station. On the basis of that complaint, the police started to make investigation against the accused and on completion of the investigation, P.I. of Anand Town Police Station charge sheeted the case against the accused in the Court of the learned Magistrate on 30.9.1982. The charge sheet came to be registered as Criminal Case No.3159 of 1982. ##. The learned Magistrate framed charge against the accused on 28.10.1989. That charge was framed for an offence punishable u/s 408 of IPC only by giving particularls to the effect that accused has committed criminal breach of trust as cashier for a total amount of Rs.45,000/- during the period from 26.11.1977 to 5.1.1980 from 3 different firms of the complainant. The prosecution examined in all 6 witnesses in support of the case of the prosecution. The prosecution also produced a bulky evidence of documents in support of its case. Thereafter, the further statement of the accused u/s 313 of Cr.PC was recorded on 17.1.1991, after prosecution closed their evidence vide purshis at exh.107. During the course of recording of the further statement of the accused, the accused submitted his written reply exh.109. Thereafter, after hearing the arguments of learned advocates for both the parties and after appreciating the evidence led by the prosecution, the learned Magistrate came to the conclusion that the prosecution has failed to prove the case against the accused for which a charge exh.4 has been framed and therefore by rendering his judgement exh.118 on 26.12.1991 he passed an order of acquittal u/s 248(1) of Cr.PC and acquitted the accused for an offence punishable u/s 408 of IPC. ##. Being aggrieved against and dissatisfied with the said order of acquittal vide judgment exh.118 dated 26.12.1991, the State Government has preferred Criminal Appeal No.583 of 1992 and the original complainant has filed Criminal Revision Application No.172 of 1992. ##. Shri A.B. Munshi, the learned advocate for the Revision-Petitioner, has taken this Court through the oral as well as documentary evidence led by both the parties. He also read the judgement which is challenged in this Appeal/Criminal Revision Application. I have heard Ms Kathaben Gajjar, the learned APP for the State appellant of Criminal Appeal No.583 of 1992, Shri A.B. Munshi, the learned advocate for the Revision-Petitioner (original complainant) and Shri K.B. Anandjiwala, the learened advocate for the Respondent / Revision-Opponent (accused) in detail, at length. I have gone through the original record of the case which has been called for from the lower Court. ##. Before this COurt takes up rival submisions for consideration, it is necessary to know the scope and powers of this COurt when an appeal is preferred against the judgement of acquittal by the trial court. In case of S. GUIN V. GRINDLAYS BANK LTD. reported in AIR 1986 SC 289. It has been observed in para 3 of the said judgement as follows:- "After going through the judgment of the Magistrate and of the High Court we feel that whatever might have been the error committed by the Magistrate, in the circumstances of the case, it was not just and proper for the High Court to have remanded the case for fresh trial, when the order of acquittal had been passed nearly six years before the judgment of the High Court. The pendency of the Criminal Appeal for six years before the High Court is itself a regrettable feature of this case. In addition to it, the order directing retrial has resulted in serious prejudice to the appellants. We are of the view that having regard to the nature of the acts alleged to have been committed by the appellants and other attendant circumstances, this was a case in which the High Court should have directed the dropping of the proceedings in exercise of its inherent powers under Section 482, Criminal Procedure Code even if for some reason it came to the conclusion that the acquittal was wrong. A fresh trial nearly seven years after the alleged incident is bound to result in harassment and abuse of judicial process." .... .... "4. We are of the view that following the above principle the High Court should have dismissed the appeal before it even if it disagreed with the view taken by the trial Court with regard to the gist of the offence punishable under Section 341 Indian Penal Code, having regard to the inordinate delay of nearly six years that had ensued after the judgment of acquittal, the nature and magnitude of the offences alleged to have been committed by the appellants and the difficulties that may have to be encountered in securing the presence of witnesses in a case of this nature nearly 7 years after the incident." In the case of RAMESH BABULAL DOSHI V. THE STATE OF GUJARAT reported in 1996 (2) GLH p. 206 (Supreme Court) the Honourable Supreme Court has made it clear as to what is the scope of the acuqittal appeal before the High Court. It has been observed in para 7 as follows:- "Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not." ##. The learned advocate Shri K.B. Anandjiwala for the respondent-accused has cited an authority of Hon'ble Supreme Court in the case of AJIT SAVANT MAJAGVAI V. STATE OF KARNATAKA reported in 1997 SCC (Cri) 992. In para 16 on page 998 the Honourable Supreme Court has enunciated the following principles for governing and regulating the hearing of appeal by the High Court against an order of acquittal passed by the Court :- "16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under :- (1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers, it possesses while hearing an appeal against an order of conviction. (2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and finding in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse. (3) Before reversing the findings of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reason for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal. (4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court. (5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. (6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witnessbox. (7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused." ##. Keeping in mind the above legal position with regard to powers of High Court in dealing with acquittal appeal and the scope of appeal before the High Court, evidence of the prosecution is discussed hereinbelow:- ##. Shri A.B. Munshi, the learned advocate for the original complainant has submitted a short summary of evidence, itemwise, along with relevant documents on which the prosecution relies on for proving the case against the accused. That short summary along with xerox copies of the relevant documents are taken up on record of this appeal. Shri Munshi has argued that as per the case of the prosecution the accused was a cashier dealing with the transactions of making payments of cash amounts for and on behalf of the aforesaid three firms of the complainant and was also receiving the amounts of cash received from the banks. As per his case, the accused was an employee of Swastik Sales Corporation which is a main company and two other firms, named Pooja Sales Corporation and Rajashri Trading Company are the sister concerns of the said main firm. As per the case of the prosecution, accused being cashier was entrusted with the cash of the aforesaid 3 firms and from that cash accused was dealing with business transactions with others, including the banks. In the beginning Shri Munshi has argued that looking to the complaint exh.90 accused had prepared about 8 debit vouchers stating inter alia that amounts stated in those vouchers were to be deposited in the bank. As per the case of the complainant, by preparing four different debit vouchers, namely, exh.25, 31, 39 and 42 accused withdrew cash of Rs.3,000/-, 5,000/-, 5,000/- and 13,000/- from cash and has misappropriated in all Rs.26,000/- of Swastik Sales Corporation. To prove that case he has argued that each of those four vouchers at Exh.25, 31, 39 and 42 is bearing a signature of the accused and these four items of withdrawal are reflected in daily account statements namely exh.26, 33, 40 and 43 respectively. As per these debit vouchers and daily account statements accused had withdrawn in all Rs.26,000/- by aforesaid four items, under the guise that said four items were required to be deposited in the bank but in fact those 4 items are not deposited in the bank and therefore the prosecution has relied on bank accounts, Exh.28, 37, 41 and 44 respectively. ##. Shri Munshi has further argued that by adopting the aforesaid modus operandi the accused has misappropriated two items of cash each of Rs.2,000/- from cash of Puja Sales Corporation. As per the short summary furnished by Mr Munshi for these two amounts each of Rs.2,000/- there are no vouchers on record but relevant daily account statements are there on record and they are at Exh.58 and 60 respectively. These two items do not reflect in the bank account exh.59 and therefore as per the case of the prosecution accused has misappropriated Rs.4,000/- by not depositing the said amount in the bank. ##. Shri Munshi has further argued that in the like manner the accused has misappropriated two items one of Rs.5,000/- dated 12.10.1979 and the other of Rs.1,000/dated 8.9.1979 by preparing debit vouchers for withdrawal exh.62 and 66 from the cash of Rajashri Trading Company and these two items are not reflected in the bank account exh.65. Here, it may be noted that for the first item of Rs.5,000/= dated 12.10.1979 of Rajashri Trading Company, the prosecution has produced daily account statement at exh.62 and for the second item of Rs.1,000/= dated 8.9.1979 the daily account statement is produced at exh.67. ##. By giving the aforesaid short summary, the learned advocate for the complainant has argued that the accused has misappropriated Rs.36,000/= by adopting the aforesaid modus operandi. ##. It is the case of the prosecution that the accused has misappropriated total amount of Rs.9000/= by four different items by drawing those amounts by cheques from the bank. The bank has debited four items in the respective bank account of respective firm but, the accused had not credited that amount in books of accounts of respective firms. As per the case of the prosecution, the accused had withdrawn by two different items from the bank from the account of Swastik Sales Corporation. As per the case of prosecution, accused has withdrawn Rs.2,000/= by cheque no.42152 dated 26.11.1977 of which a counterfoil of cheque is produced at exh.45 and another item of Rs.4,000/= by cheque no.73506 dated 19.1.1979 of which counterfoil of cheque is produced at exh.46. Thus, it is the case of the proseuction that accused had, by receiving the amounts of the aforesaid two cheques of which counterfoils are produced at exh.45 adn 46 from the bank and by not crediting said amounts in the books of account of the Swastik Sales Corporation, misappropriated an amount of Rs.6,000/-. In like manner, the accused received an amount of Rs.3,000/- by tendering cheque no.78723 dated 5.1.80 of which counterfoil is produced at exh.70 in bank and did not credit the said amount of Rs.3,000/- in the books of account of Rajashri Trading Company and thereby he has misappropriated an amount of Rs.3,000/-. ##. Thus, as per the case of the prosecution by tendering 3 bearer cheques in the name of "Self" as person to receive the amount of cheques, the accused had misappropriated the aforesaid amounts. By giving the aforesaid particularls, the learned advocate for the original complainant has argued that the accused being cashier was an employee / servant of Swastik Sales Corporation was entrusted with the cash of the aforesaid three different firms and the accused has misappropriated a total amount of Rs.45,000/- for which the complaint at exh.90 was lodged on 16.2.1982 in the court of the learned Magistrate at Anand. ##. Shri Munshi has further argued that here in this case the prosecution has examined in all six prosecution witnesses and proved the fact with regard to entrustment of money to accused and the fact regarding an offence of criminal breach of trust committed by the accused and though there is an ample evidence led by the prosecution to prove the ingredients of offence u/s 408 of IPC, the learned Magistrate has acquitted the accused by misreading the evidence led by the prosecution and therefore the judgement is patently wrong, perverse and it requires to be quashed and set aside and this Court should convict the accused for an offence punishable u/s 408 of IPC. ##. It would be in the interest of justice to know the defence of the accused at the stage of the trial of the case. If we read further statement of the accused recorded u/s 313 of Cr.PC we find that following facts are not disputed by the accused:- (a) In reply to question no.2 put in the further statement the accused has tated that it was true that the complainant Rohitkumar Jasbhai Patel was carrying on the business of household articles and