APEAL.69-05 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 69 OF 2005 Ashok Ramchandra Joshi ...Appellant Vs. Rajaram Gangaram Kandpile & Anr. ...Respondents *** Mr. M. K. Kochrekar, for the Appellant. Mr. Kiran J. Kandpile, for Respondent No.1. Mrs. M. R. Tidake, APP for Respondent-State. *** CORAM: V. M. KANADE J. DATE : OCTOBER 20, 2010 P.C. 1. Heard the learned counsel appearing on behalf appellant, respondent No.1 and the learned APP appearing for the State. This appeal is filed by the original complainant, challenging the judgment and order dated 11th June, 2003 passed by the learned Metropolitan Magistrate, 25th Court Court, Mazgaon, Mumbai. By the said judgment and order, the learned Magistrate was pleased to acquit the respondent No.1/accused of the offences punishable under S. 448, 454 of the I. P. APEAL.69-05 - 2 - Code. 2. The brief facts of the case are as under- . It is case of the complainant that one Mrs. Shobhna Bharvikar was tenant of the residential premises bearing room No. 39 and 40, situate at N. M. Joshi Marg, Byculla. She was a widow and did not have any children. According to the complainant, she was his cousin sister and he was in exclusive use, occupation and possession of the rental premises and after her death in the year 1984 he was in use and occupation of the said premises. According to the complainant, he was residing with his family at Girgaon and after the death of tenant Mrs. Bhavirkar, he started residing at Byculla with his wife. According to him, he had kept the premises locked from 15-2-1986 to 18-2-1986 and when he came back he found that possession of the premises was forcibly taken by the accused who is landlord of the premises. According to him, he came to know that rental premises were opened by breaking lock of the door and taking away the belongings left by late Shobhna Bhavirkar and therefore, he filed the complaint before the Magistrate, since the police did not take cognizance of the said complaint. In support of his case, the appellant examined himself and he was cross-examined at length by the defence. Though one Mr. Hrudaynath Jadhav was APEAL.69-05 - 3 - examined, the defence could not cross-examine this witness, since he expired on 9-8-2001. The certified copy of the judgment and order of the Small Causes Court in R.A.D. Suit No. 632 of 1993 was produced by the defence. The trial Court on the basis of evidence which was produced on record came to the conclusion that the complainant has not established that the accused had committed offence punishable under S. 448 and 454 of the I. P. Code. It is case of the accused that before Mrs. Shobhna Bhavirkar expired, she had handed over keys of the premises to him when she was admitted in the hospital. The complainant firstly, could not establish his relation with tenant Mrs. Shobhna Bhavirkar and in fact in his cross-examination he has admitted that there was no exact blood or by way of his relation with Mrs. Shobhna Bhavirkar and so therefore, he has stated that she was his cousin though he admitted that she had three brothers and sisters and they were present during her illness though they were not residing with her. 3. The trial Court has further observed that from the judgment and order of the City Civil Court it can be seen that complainant Joshi had not obtained order of declaration that he was protected tenant under the provisions of the Bombay Rent Act. The trial Court has also observed that the City Civil Court has held that since he was not residing along APEAL.69-05 - 4 - with deceased tenant as a member of the family at the time of her death, he was not entitled to claim the tenancy of the suit premises and therefore, he was not entitled for a declaration and therefore, decree of possession of the rental premises. The trial Court has therefore, given cogent reasons and has considered the case from every aspect and finally has come to the conclusion that evidence of Mr. Joshi could not be relied upon, and therefore, held that the complainant had not proved his case beyond reasonable doubt against the accused. The trial Court, therefore, acquitted the respondent No.1 herein. 4. It is settled position in law that while exercising jurisdiction under S. 378 of the Cr. P. C. the power of the High Court is very limited. The High Court is not expected to re-appreciate the evidence on record and come to a different conclusion on its own. In other words, the High Court cannot exercise the powers which are not vested in it under S. 378 Cr.P.C. In appeal against the order of conviction the power of the High Court is very wide, and the High Court can re-appreciate the evidence on record and come to a different conclusion from the findings recorded by the trial Court. However, in the case of an appeal against the acquittal, the High Court can set aside the finding of the trial Court only if it comes to the conclusion that the said finding is perverse or is contrary to the APEAL.69-05 - 5 - law or there is a material irregularity in the order passed by the trial Court. The high Court can also set aside the finding if it finds that the finding is given on the basis of evidence which does not exist or is not part of the record. In the present case, the trial Court has analyzed the evidence of the complainant and the documents which are on record and has given cogent reasons while coming to the conclusion that case was not proved beyond reasonable doubt. In my view, therefore, there is no reason to interfere with the impugned order passed by the trial Court. The appeal is therefore, dismissed. [ V. M. KANADE J.]