CR.A/354/1997 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 354 of 1997 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 ? ========================================= STATE OF GUJARAT - Appellant(s) Versus PATEL KANJIBHAI VALJIBHAI - Opponent(s) ========================================= Appearance : MR MR MENGDE, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, MR KN SARVAIYA for MR SHAKEEL A QURESHI for Opponent(s) : 1, ========================================= ================ CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 20/02/2008 ORAL JUDGMENT The State of Gujarat preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 [for short 'Cr. P.C.'] challenging CR.A/354/1997 2/10 JUDGMENT the legality and validity of the judgment and order passed by the learned Judicial Magistrate First Class, Kheralu [for short 'the learned Magistrate'] dated 18/2/1997 in Criminal Case No. 1768 of 1986. By virtue of the impugned judgment and order, the learned Magistrate was pleased to acquit the accused for the offences punishable under sections 406, 467, 468 and 477(A) of the Indian Penal Code [IPC]. 2. The case of the prosecution, in nut shell, is that on or about 4/3/1985 the accused was performing his duty in capacity as Secretary of Shahupura Milk Producers Cooperative Society [for short 'the society']. During his tenure as Secretary in the society, it was transpired that the accused committed serious irregularities and the permanent misappropriation of the amount to the tune of Rs.9,235/- was made by the accused. That on 4/3/1985 the accused debited the amount of Rs.4,235/- vide Rojmel page no. 46 regarding the price of 50 bags of Sagardan in the name of the President of the society, but the sale proceeds were not credited in the account books maintained by the society. On 15/3/1985 vide Rojmel page no. 47, Rs.6,000/- were shown to have been credited in the name of the President of the society Mr. NK Patel, mentioning that the amount was withdrawn from the bank, but no supporting document or any supporting entry in the books of account maintained by the society was found. Similarly, on 15/3/1985 Rs.1,000/- were shown to have been CR.A/354/1997 3/10 JUDGMENT credited in the name of the President of the society Mr. NK Patel, but no receipt was found in support thereof. The President of the society Nanjibhai Kanjibhai filed a private criminal compliant against the accused in the Court of the learned Magistrate on 3/1/1986 and the learned Magistrate was pleased to forward the complaint for police investigation under section 156(3) of the Cr. P.C. After concluding the investigation, the police filed charge-sheet in the Court of the learned Magistrate against the respondent – accused for the offences punishable under sections 406, 467, 468 and 477(A) of the IPC. The learned Magistrate framed charge against the accused vide exh. 4. Thereupon the accused did not plead guilty and the prosecution adduced its oral and documentary evidence. 2.1. The testimony of complainant and the President of the society Nanjibhai Kanjibhai was recorded at exh. 9. The testimonies of witnesses – Jummamiya Shamshermiya, Varvaji Savaji, Jivanbhai Madhabhai were recorded at exhs. 84, 85 and 88 respectively. The deposition of Police Constable – Jaburkhan Naththekhan was recorded at exh. 92. No more witnesses were examined by the prosecution. The prosecution produced relevant documentary evidence like FIR, seizure panchnama of the record and relevant entries from the books of accounts maintained by the society. After conclusion of the evidence, the learned Magistrate recorded further statements of the accused under section 313 CR.A/354/1997 4/10 JUDGMENT of the Cr. P.C wherein the accused denied all the allegations levelled against him by the prosecution. 2.2. Appreciating the oral and documentary evidence adduced by the prosecution and after hearing the arguments advanced on behalf of both the parties, the learned Magistrate was pleased to acquit the accused for the offences punishable under sections 406, 467, 468 and 477(A) of the IPC, by virtue of the impugned judgment and order dated 18/2/1997. 3. On behalf of the appellant – State, learned APP Mr. Mengde argued that the learned Magistrate erred in not properly appreciating the oral and documentary evidence adduced by the prosecution before the trial Court. That in the deposition of the complainant, who is President of the society, Mr. NK Patel, cogent and reliable evidence is forthcoming to connect the accused with the crime. His deposition is supported by documentary evidence. The prosecution examined Auditor, who audited the accounts of the society and it has come in the evidence that the accused had permanently misappropriated the sum of Rs.9,235/-. That it has come in evidence that the financial transaction of the society was under the control of the accused, who was Secretary of the society. The books of accounts were written by him. That the learned Magistrate has not properly appreciated the documentary evidence produced by the prosecution. Therefore, it is submitted that the appeal be allowed and the CR.A/354/1997 5/10 JUDGMENT impugned judgment and order passed by the learned Magistrate be set aside and the respondent – accused be appropriately punished for the offences punishable under sections 406, 467, 468 and 477 (A) of the IPC. 3.1. As against this, on behalf of the respondent – accused, learned counsel Mr. KN Sarvaiya, during the course of arguments, fully supported the impugned judgment and order passed by the learned Magistrate. It is submitted that the learned Magistrate has given cogent and convincing reasons while arriving at conclusion that the prosecution has failed to prove beyond reasonable doubt its case against the accused. That considering the deposition of the complainant Mr. NK Patel who was President of the society, it becomes crystal clear that the disputed entries in connection with the prosecution case were even signed by said complainant Mr. NK Patel. That considering the admissions in the cross- examination of the complainant Mr. NK Patel, suggest that there was no fault whatsoever on the part of the accused. Virtually considering the cross-examination of the complainant Mr. NK Patel on behalf of the accused, an impression can be gathered that in fact the complainant himself was alone liable for alleged irregularities. That even the deposition of Auditor cannot be relied upon and cogent and convincing reasons are assigned by the learned Magistrate in the impugned judgment CR.A/354/1997 6/10 JUDGMENT in not giving any weight to the deposition of the Auditor. Therefore, it is submitted that there is no reason whatsoever for this appellate Court dealing with the appeal under section 378 of the Cr. P.C to interfere with the impugned judgment and order passed by the learned Magistrate acquitting the accused. Therefore, it is submitted that the appeal be dismissed. 4. Before I appreciate the evidence adduced by the prosecution in this case, it would be appropriate to note that it is now settled law that although the appellate Court is vested with power to reappreciate and re- evaluate the evidence on record, generally it would not interfere with the order of acquittal unless it is found that the judgment of the trial Court is perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. Even when two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. 5. In the aforesaid background, if the evidence adduced by the prosecution in this case is reappreciated or re-evaluated, then it clearly transpires that the learned Magistrate did not commit any error in coming to the conclusion that the prosecution failed to prove beyond reasonable doubt its case against the accused. In the impugned judgment, the learned CR.A/354/1997 7/10 JUDGMENT Magistrate has assigned cogent and convincing reasons while appreciating the oral and documentary evidence adduced by the prosecution before him. It is clear that in connection with the offence, a private criminal complaint was filed by the President of the society Mr. NK Patel in the Court of the learned Magistrate on 3/1/1986. The learned Magistrate forwarded the complaint for police investigation under section 156(3) of the Cr. P.C. In this background, considering the deposition of complainant Mr. NK Patel recorded at exh. 9 in the case, in examination in chief, he referred the disputed entries like the entry at page 46 in Rojmel dated 4/3/1985 showing the sale of 50 gunny bags of Sagardan worth Rs.4,235/- and stated that in fact no amount was credited against the same. He also referred in his deposition the relevant entry dated 15/3/1985 showing that a sum of Rs.6,000/- was withdrawn by this witness Mr. NK Patel, but in fact that was forged transaction. Similarly he stated that sum of Rs.1,000/- was shown credited in his name, but that was also concocted transaction. In this background, if the cross- examination of the complainant Mr. NK Patel, made on behalf of the accused is considered, then he admitted that in the record maintained by the society, no duty list is there showing the exact duty to be performed by the Secretary of the society. About the aforesaid disputed entries complainant Mr. NK Patel admitted his signatures in those disputed CR.A/354/1997 8/10 JUDGMENT entries. Even about withdrawal amount from the bank to the tune of Rs.6,000/-, which is according to him, a forged and concocted transaction, he admitted that as per the constitution of the society, the amount can be withdrawn from the bank only if two office bearers out of three, sign a cheque. He admitted that for the purpose of withdrawal of Rs.6,000/- along with the accused, he himself had signed the relevant document so as to withdraw the amount from the bank. He further admitted that there was no eraser or any over-writing in any entry which he treats as disputed entries. He admitted that it is the duty of the President of the society to see that the money of the society is not misappropriated and despite this, if the money of the society is misappropriated, then the responsibility would be of the President and more so when the disputed entries are signed by him. As stated above, he admitted that all the disputed entries in the books of accounts maintained by the society bear his signatures. On one hand he stated that while withdrawing a sum of Rs.6,000/- from the bank, he did not sign and in his cross-examination he admitted that if signature of the person withdrawing the amount from the bank is not tallied with the specimen signature of that person, the bank would not pay any amount. The complainant Mr. NK Patel and witness Jummamiya Shamshermiya in their depositions admitted that the account of the society was audited by Auditor and no CR.A/354/1997 9/10 JUDGMENT irregularities were found by the Auditor. The prosecution examined Auditor - Jivanbhai Madhabhai at exh. 88 and he stated that the account of the society of the relevant period i.e. 1/1/1985 to 31/3/1985 was audited by him and it was revealed that the accused permanently misappropriated a sum of Rs.9,235/-. However, in his cross-examination he also admitted that all the disputed entries bear signature of the President of the society Mr. NK Patel. He also admitted that there was no eraser or over-writing in any of the entries. 6. In para. 14 of the impugned judgment, the learned Magistrate discussed all the above aspects of the matter appreciating the oral and documentary evidence on record. Learned Magistrate also observed in the impugned judgment that the prosecution relied upon so called audit report exh. 69, but that is a copy. The original audit report was not produced and even in connection with audit report exh. 69, while appreciating the testimony of Auditor Jivanbhai Madhabhai, the learned Magistrate observed that in cross-examination of this witness, he admitted that all the disputed entries were signed by the President of the society. The learned Magistrate, therefore, observed that before signing the disputed entries in the Rojmel, if the President of the society Mr. Patel had any doubt about any of the entries, then he would not have signed the entries or atleast he would have made some endorsement expressing his doubt. Nothing CR.A/354/1997 10/10 JUDGMENT whatsoever was done by the President of the society. The learned Magistrate also observed that the complaint was filed after about 9 months from the date of occurrence of so called offence and neither in the complaint nor in the deposition of the complainant, the delay of filing FIR was explained. 7. In light of the above discussions, it clearly transpires that the learned Magistrate assigned cogent and convincing reasons while appreciating the evidence adduced by the prosecution in this case and the learned Magistrate came to the conclusion that the prosecution failed to prove its case beyond any reasonable doubt against the respondent accused. There is no reason whatsoever to interfere with the impugned judgment and order passed by the learned Magistrate and there is nothing to come to the conclusion that the judgment is perverse or contrary to the material on record or palpably wrong or erroneous. In the result, the appeal deserves to be dismissed and it is hereby dismissed. ( J .C. UPADHYAYA, J. ) *Pansala.