CR.A/671/1998 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 671 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ===================================================== 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 SHAMBHUBHAI HIRABHAI MAKANI - Opponent(s) ===================================================== Appearance : MS ARCHANA C RAVAL Ld. APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, MR TS NANAVATI for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 13/03/2008 CR.A/671/1998 2/9 JUDGMENT ORAL JUDGMENT 1. The present acquittal appeal has been filed by the State under sec. 378 of CrPC against the judgment and order of acquittal dated 30.4.1998 passed by the learned Chief Judicial Magistrate, Amreli in Criminal Case No. 1524 of 1993. The said case was registered against the present respondent for the offence punishable under sec. 403, 406 and 408 of IPC before the Police and after investigation the case was proceeded before the trial court. Before the trial court, the prosecution has led the oral as well as documentary evidence and at the conclusion of the trial, the respondent has been acquitted from the charges levelled against him. Hence, in the present appeal, the judgment of the trial court has been challenged by the State on the ground that the judgment and order passed by the Ld. Judge is against law and evidence on record, and, therefore, the same is required to be quashed and set aside. 2. According to the prosecution case, the complainant is Managing Trustee of Chital Kelvani Mandal and present respondent was serving in the said school since 1981 as Principal. During the period from 27.6.1991 to 4.7.1991, the First Attempt Certificates were issued to five students and Rs. 5/- which was received by him was not deposited in the offence and misused by the respondent. On 31.3.1992 the Clerk of Monpur High School has purchased CR.A/671/1998 3/9 JUDGMENT stationary and some other articles of Rs. 11,328/- and the same were handed over to the present respondent but the respondent has not deposited the same in the school and it was misused by him, therefore, the complaint was filed against him for the criminal breach of trust and criminal misappropriation. 3. Before the trial court, 15th witnesses were examined and documentary evidences were also produced. At the conclusion of the trial, after appreciating the oral as well as documentary evidence, the ld. Judge vide impugned judgment and order acquitted the respondent. 4. Ms. Archana C Raval learned APP appearing for the appellant – State has contended that the judgment and order of acquittal is contrary to law and evidence on record and it is not proper. He has also contended that the learned Judge has failed to appreciate the oral as well as documentary evidence which is produced before him. He has also failed to appreciate the evidence and the judgment and order of the trial court is bad in eye of law. It is also contended that from the oral evidence of the complainant, the prosecution has proved its case beyond reasonable doubt even then the trial court has failed to appreciate the documentary evidence and erred in acquitting the respondent – accused, and, therefore, the impugned judgment and order passed by the learned Judge is required to be quashed and set CR.A/671/1998 4/9 JUDGMENT aside. 5. Learned advocate Mr. Parimal Patel for Mr TS Nanavati for the respondent has contended that the prosecution has failed to establish that the alleged stolen property was entrusted dominion over to present respondent. He has read the oral as well as documentary evidence and argued that in the present case, the prosecution has never bothered to examine Handwriting Expert and present respondent is serving in the said institute since 8 years and Clerk of the School is bound to follow the instruction of the present respondent – Principal and account and financial income to be kept with the clerk. He was able to keep Rs. 50/- to Rs. 100/- with him and if amount is more than that amount, then it was required to be deposited with the Bank and bank transaction can be utilised by anybody with the signatures of Principal and Managing Trustee. Five First Attempt Certificates were issued but Rs. 5/- was not deposited in the office. The learned advocate has argued that in connection of the said allegation, the prosecution has failed to establish that it was the duty of the Principal who was entrusted with the said work. He has argued that from the oral evidence, it appears that Mr. Chavda was in possession of the cheque book and register was also in his possession. It is the duty of the clerk to maintain the dead- stock register, It is established that it was not the duty of the present respondent but the clerk has committed criminal wrong. The prosecution has also CR.A/671/1998 5/9 JUDGMENT failed to establish before the trial court as well as this Court to say that the articles which were purchased by the institute were misused by the present respondent for his own. He has also contended that from the documentary evidence of all the witnesses, nothing has comes on record that the present respondent has committed the said alleged offence. 6. I have gone through the judgment of the trial court and the perused the oral as well as documentary evidence produced on the record of the case. 7. The provisions of Sec. 405 of IPC reads as under: S.405. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. 8. In the said provisions, main ingredients of entrustment or dominion over the property is must. From the perusal of the papers, the prosecution is failed to established the said issue before the trial CR.A/671/1998 6/9 JUDGMENT court and also failed to convince this Court. 9. I have also gone through the judgment of the trial court, it is not necessary for this Court to repeat the whole evidence of the prosecution case in light of the decision in the case of State of Karnataka vs. Hemareddy, reported in AIR 1981 SC 1417. It is noted by the Hon'ble Supreme Court that when the Appellate Court is agreed with the reasonings and opinion given by the trial court, then, re-discussion of the evidence is not necessary. The Supreme Court has prescribed certain directions in the case of Chandrappa & Ors vs. State of Karnataka, reported in (2007)4 SCC 415, as under: “42. From the above decisions, it our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (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”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such CR.A/671/1998 7/9 JUDGMENT phraseologies are more in the nature of “flourishes of language” to emphasis 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 conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 10. In the case of Kallu vs. State of M.P., reported in (2006) 10 SCC 313, the Hon'ble Court has observed as under: “8. While deciding an appeal against acquittal, the power of the appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by CR.A/671/1998 8/9 JUDGMENT an appellate Court, where the judgment of the trial Court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial Court merely because a different view is possible. The appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial Court.” 11. From the above discussion, it appears that the prosecution has failed to establish its case and in light of the above decision of the Hon'ble Supreme Court the present Appeal has no merit and the same is required to be dismissed. 12. It is settled legal position that in acquittal appeal, the Appellate Court is not required to re- write the judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial court while acquitting the respondents – accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no CR.A/671/1998 9/9 JUDGMENT interference by this Court at this stage. Hence, this appeal requires to be dismissed. 13. In the result, this appeal is dismissed. (Z.K. SAIYED, J.) mandora/