CR.A/956/1998 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 956 of 1998 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 ? ========================================================= THE STATE OF GUJARAT - Appellant(s) Versus SALIMMIYA MIYASAB KURESHI & 1 - Opponent(s) ========================================================= Appearance : MR MR MENGDE, APP for Appellant(s) : 1, MR KN SARVAIYA with MR SHAKEEL A QURESHI for Opponent(s) : 1-2, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 12/03/2008 ORAL JUDGMENT The State of Gujarat preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 [for short 'the Code'] challenging the validity and legality of the impugned judgment and order passed by the learned Metropolitan Magistrate, Court No. 12, Ahmedabad [for short 'the learned Magistrate'] on 2/9/1998 in Criminal Case No. 328 CR.A/956/1998 2/10 JUDGMENT of 1996. By virtue of the impugned judgment and order the learned Magistrate was pleased to acquit both the respondents accused for the offence punishable under section 409 read with section 114 of the Indian Penal Code. 2. The facts giving rise to this case, in short, are as under :- 2.1. It is the case of the prosecution that on 15/4/1996 the respondent – accused no. 1 Salimmiya was serving as gang labourer and respondent – accused no. 2 Altafhussen was serving as driver in Ahmedabad Municipal Corporation. That on 15/4/1996 certain scraps were required to be removed from Raikhad workshop to different places in the city of Ahmedabad. The scraps were iron and cast iron materials. That the work was required to be carried out under the supervision of Assistant Engineer Mr. DM Gadhavi and Foreman Mr. Harjivandas Parmar. That the driver was issued gate pass when the goods were loaded in his truck and at the time of unloading the truck, he was required to show the gate pass to the concerned officer and after receipt of the goods the concerned officer was required to sign the gate pass. That the complainant Mr. RS Patel, who was serving as Additional Chief Engineer received a telephone call stating that certain scrap materials were stolen. Thereupon, the complainant Mr. Patel started inquiry and he received the information that the materials which were missing were not received at a store situated in the area called Gulbai Tekra and in that store one Naranbhai Jadav was serving as security guard and upon inquiry to Naranbhai, it was revealed that the goods were not received in his store. In the FIR lodged by Mr. Patel it was alleged that the scrap materials which were required to be assigned to the stores situated at Gulbai Tekra were not received and thus there was theft of said materials. CR.A/956/1998 3/10 JUDGMENT 2.2. Upon receipt of the FIR, the police registered the offence punishable under section 409 read with section 114 of the Indian Penal Code. During the course of investigation police recorded statements of required witnesses, prepared different panchnamas in presence of panchas including panchnama of recovery of alleged stolen materials. After completion of the investigation, police filed charge-sheet against both the respondents accused persons for the offence punishable under section 409 read with section 114 of the Indian Penal Code. The learned Magistrate framed charge against both the accused for the offence punishable under section 409 read with section 114 of the Indian Penal Code. Both the accused did not plead guilty and, therefore, prosecution adduced its oral and documentary evidence. 2.3. The deposition of complainant Mr. RS Patel was recorded at exh. 7 and during the course of his deposition the copies of gate pass and the FIR were produced. The prosecution examined witnesses Digvijaysinh at exh. 17, Gulam Mayuddin at exh. 18, Imtiyaz Hussen at exh. 19, Mahendrabhai Pandya at exh. 21, Radheshyam Tiwari at exh. 22, Dipsinh Tejsinh at exh. 23, Naranbhai Jadav at exh. 24, Abheraj Choudhary at exh. 25 and Kirtikumar Pandya at exh. 27. No more witnesses were examined by the prosecution. 2.4. The prosecution produced by way of documentary evidence, the recovery panchnama of muddamal and the panchnama of scene of offence. After completion of evidence adduced by the prosecution, the learned Magistrate recorded further statements of both the accused persons under section 313 of the Code. Except the fact that at the relevant time the respondent – accused no. 1 Salimmiya was working as temporary labourer and that respondent accused no. 2 – Altafhussen was CR.A/956/1998 4/10 JUDGMENT working as temporary driver in the Municipal Corporation, both the accused denied all the allegations levelled against them by the prosecution and they stated that false complaint was filed against them. 2.5. The learned Magistrate, after appreciating the evidence on record and after hearing the arguments advanced on behalf of both the parties, delivered the impugned judgment and order on 2/9/1998 and was pleased to acquit both the accused persons. 3. On behalf of the appellant – State, Ld. APP Mr. Mengde submitted that the judgment and order of acquittal passed by the learned Magistrate is contrary to law, evidence on record and principles of justice. That the learned Magistrate erred in not properly appreciating the oral and documentary evidence adduced by the prosecution. That the prosecution examined important witness like the complainant Mr. Patel and concerned officers of the Municipal Corporation to prove that both the accused persons misappropriated the goods belonging to the Corporation, which were entrusted to them for transporting to the store situated at Gulbai Tekra and thus the bare reading of the oral evidence proves beyond reasonable doubt the case of the prosecution. The case is supported by documentary evidence like gate pass, etc. That the learned Magistrate placed much reliance upon a fact that the FIR was lodged after the lapse of 9 days. In fact in the FIR itself the Additional Chief Engineer Mr. Patel stated that as soon as he received telephone call regarding theft, he started inquiry and during the course of inquiry, it was revealed that both the accused had misappropriated the goods belonging to the Corporation. That the time was consumed to undergo such office procedure and, therefore, this can never be a ground to acquit the accused from the serious charge of misappropriation. Therefore, it was submitted that CR.A/956/1998 5/10 JUDGMENT appeal be allowed and impugned judgment and order passed by the learned Magistrate be set aside and both the respondents accused be punished for the offence punishable under section 409 read with section 114 of the Indian Penal Code. 3.1. As against this, on behalf of the respondents – accused, Mr. Sarvaiya, learned counsel, while fully supporting the impugned judgment and order passed by the learned Magistrate, during the course of his arguments, submitted that prosecution miserably failed to prove its case against the accused. That the learned Magistrate in the impugned judgment assigned cogent and convincing reasons for arriving at such conclusion. That the complaint was filed after a suspicious delay of 9 days. That even in the complaint, the allegation levelled against the accused was of the offence of theft; whereas the entire case proceeded as if the accused misappropriated the property. That the basic ingredients for the offence of theft and for the offence of misappropriation are different. That even considering verbal evidence adduced by the prosecution, no reliance can be placed and on the contrary, considering the deposition of Naranbhai, who is security guard, admitted that in token of receipt of the alleged stolen iron scrap, he had signed the gate pass. Therefore, it is submitted that the prosecution miserably failed to prove its case beyond reasonable doubt against any of the accused persons. Therefore, the appeal be dismissed. 4. Before the oral and documentary evidence adduced in this case by the prosecution is appreciated or rather re-appreciated, it would be necessary to consider the following principles established by the Hon'ble Supreme Court in the case of Chandrappa V/s. State of Karnataka reported in (2007) 4 SCC 415 :- CR.A/956/1998 6/10 JUDGMENT “(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 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.” 5. Considering the above principles established by the Hon'ble Supreme Court, so far as the acquittal appeal under section 378 of the Code is concerned, and keeping in mind the above principles, if the evidence adduced by the prosecution is appreciated, then it becomes clear that the learned Magistrate did not commit any illegality or irregularity in CR.A/956/1998 7/10 JUDGMENT appreciating the evidence adduced by the prosecution and ultimately coming to the conclusion that the prosecution failed to prove its case beyond reasonable doubt against both the accused persons. Considering the FIR, it becomes clear that the Additional Chief Engineer Mr. Patel, who lodged the FIR, narrated the incident in detail in the FIR. According to the FIR, certain scrap iron goods were required to be delivered to a store of Corporation situated in the area called Gulbai Tekra. That one truck load of goods were not delivered and he received a telephonic message that the said goods were stolen. In the FIR it is clearly stated that work of assigning the iron scrap goods was under the supervision of Assistant Engineer Mr. Gadhavi and Foreman Mr. Parmar. In the FIR the names of 7 employees, who were required to actually carry out the work, are mentioned. However, in the FIR it is specifically alleged that both the accused persons who were gang labourer and driver had stolen the goods. Therefore, the bare reading of the FIR would reveal that the offence alleged was that of a theft. However, the police registered the offence punishable under section 409 read with section 114 of the Indian Penal Code as if both the accused misappropriated the property of the Corporation. On behalf of the respondents accused learned counsel Mr. Sarvaiya rightly argued that the very ingredients of both the offences are different. In the impugned judgment, even the learned Magistrate observed that in the FIR there was no allegation worth the name that the accused misappropriated the property of the Corporation. 6. Apart from this, even considering the evidence on record and the impugned judgment delivered by the learned Magistrate, it appears that when the truck was loaded with the iron scrap materials, at that time a gate pass was issued to the driver. In the impugned judgment, learned CR.A/956/1998 8/10 JUDGMENT Magistrate observed that the relevant gate passes exhs. 8 and 9 were prepared by one Mahendrabhai Pandya and he had signed those gate passes. Considering his deposition exh. 21, Mahendrabhai Pandya did not say a word about handing over said gate pass to any of the accused persons. The important aspect is that at Gulbai Tekra store the goods were required to be received by witness Naranbhai Jadav, who was serving as security guard. In the impugned judgment, the learned Magistrate observed that not only the deposition of said witness Naranbhai is suspicious, but even his behaviour is very much doubtful. It is clear that when the goods reached to its destination and when the goods were unloaded from the truck, Naranbhai was required to sign the gate pass in token of receipt of the goods. It has come in evidence that except the gate pass, there was no other document showing either despatch of the goods or receipt of the goods. Considering the deposition of Naranbhai exh. 24, he admitted that he had signed the gate passes. He clearly admitted that he had signed the gate passes in token of receipt of the goods at Gulbai Tekra store. However, in his deposition, he pleaded that one driver and some officers of the Corporation had come to his house on the next day i.e., on 16/4/1996 and they told him to sign the gate pass in token of receipt of the goods and thereupon he signed the gate pass. In the impugned judgment, the learned Magistrate observed that such excuse given by witness Naranbhai can never be accepted and even if at all such excuse is to be accepted, then even said Naranbhai becomes accused no. 3 in this case. Considering the deposition of Naranbhai, he stated that as soon as his signature was obtained in the gate pass by driver and some officers of the Corporation, he immediately informed the Director Mr. Harshadbhai. It is pertinent to note that said Director CR.A/956/1998 9/10 JUDGMENT Harshadbhai was not examined as witness in this case by the prosecution to substantiate the say of Naranbhai. Moreover, it has come in evidence that there were no marks on the goods so that the identity can be established that the goods belonged to the Corporation. The case of the prosecution is that after misappropriating the goods, the accused handed over the goods to witness Gulam Mayuddin, who is examined in this case at exh. 18. It is pertinent to note that said Gulam Mayuddin turned hostile and he did not support case of the prosecution that the goods were delivered to him by any of the accused persons. It is the case of the prosecution that the goods were recovered as muddamal from said witness Gulam Mayuddin by drawing panchnama exh. 20 in presence of panchas Imtiyajbhai Hussen and Ahmedbhai Memon. The prosecution examined only one of the panchas Imtiyaj Hussen at exh. 19. Even he turned hostile and did not support contents of the panchnama of the goods which were recovered from Gulam Mayuddin. Under such circumstances, prosecution failed to prove its case that the accused instead of delivering the goods to Gulbai Tekra store, handed over the goods to Gulam Mayuddin and the goods were recovered as muddamal of this case in presence of panch from said Gulam Mayuddin. 7. In the impugned judgment, the learned Magistrate assigned cogent and convincing reasons while coming to the conclusion that the prosecution failed to prove its case against the accused persons. There is nothing that the learned Magistrate committed any illegality or irregularity while appreciating the oral and documentary evidence on record. That there is no reason whatsoever for this appellate Court to interfere with the impugned judgment and order delivered by the learned Magistrate. CR.A/956/1998 10/10 JUDGMENT 8. In the result, the appeal deserves to be dismissed and it is hereby dismissed. ( J .C. UPADHYAYA, J. ) *Pansala.