IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 551 0f 2001 Krishan Lal Thakur …Revisionist Versus Shri Shakti Trikha and another …Opp. parties Mr. J. S. Virk, learned counsel for the revisionist Mr. Sandeep Tandon, learned counsel for the opp. Party no. 1. Mr. Nandan Arya, learned A.G.A. for the State/opp. party no. 2. Dated: December 07, 2009 Hon’ble Alok Singh, J. Heard Mr. J.S. Virk, learned counsel for the revisionist, Mr. Sandeep Tandon, learned counsel appearing for opp. party no. 1 and Mr. Nandan Arya, learned A.G.A. appearing for the State/opp. party no. 2. By way of present revision, the revisionist is assailing judgment/order dated 27.03.2001 passed by the Additional Chief Judicial Magistate, IInd, Dehradun in Criminal Case No. 1171 of 1996, State Versus Shakti Trikha, acquitting the accused/opp. party no. 1 herein under Sections 384, 506 and 411 IPC, Police Station Garhi Cantt, district Dehradun. Brief facts of the present matter are that revisionist/complainant lodged an F.I.R. under Sections 384 and 506 against the opp. party no. 1 at police station Garhi Cantt., district Dehradun alleging therein that complainant is a General Manager of Welfare Society which is a registered society formed/constituted with the object to serve old/aged people free of cost. The accused is Auditor and publisher of Kavita Express. F.I.R. further reads that accused used to give threats to the complainant saying either pay otherwise news would be published defaming the complainant alleging therein that 2 complainant is evetesar and rapist under the constant threat and coercion complainant on 26.12.1995 paid Rs. 5,000/- to the accused near Hotel Nivesh in the presence of Amit Bhatia s/o C.P. Bhatia. Thereafter, accused once again started demanding Rs. 5,000/- from the complainant as well as from the wife of the complainant. F.I.R. further reads that complainant has recorded conversation between the accused and the complainant and that cassette is with the complainant. The revisionist/complainant did not inform the police thinking lot of time would be wasted in Thana and courts. When accused once again started pressurizing the complainant to pay Rs. 5,000/- otherwise would be defamed, complainant and his wife personally met with the Superintendent of Police (City) Dehradun on 04.01.1996 and narrated him entire story. The Superintendent of Police (City), Dehradun handed over currency note of hundred after putting his signature to be given to the accused. Thereafter complainant agreed to pay Rs. 5,000/- to the accused. On 05.01.1996 morning accused informed the complainant on phone that accused would come at 3:00 noon near Hotel Nivesh. F.I.R. further reads that complainant kept Rs. 2,000/- in khaki envelope including note of Rs. One hundred duly signed by Superintendent of Police (City). On 05.01.1996 at about 3:00 noon the accused accepted envelope from the complainant and kept it in his right pocket, police party raided and caught the accused on the spot and recovered that khaki envelope from the accused and completed all the formalities on the spot. After investigation, charge sheet was submitted. During the trial Krishan Lal Thakur (PW-1), Sita Ram (PW-2), Maya Thakur (PW-3), Amit Bhatia (PW- 4), Haider Raza Zaidi (PW-5), Mohd. Wasiman (PW-6) 3 and S.I. Om Prakash (PW-7) were examined from the side of the prosecution before the trial court. Audio Cassette (C.D.) was also produced before the court containing the conversation between the accused and the complainant. Khaki envelope in which currency notes were said to have been kept alongwith Rs. 100 currency note containing the signature of Superintendent of Police (City), Dehradun were also produced. Learned trial court at internal page 4 of the impugned judgment specifically observed that PW-1 stated on oath that he had handed over Audio Cassette (C.D.) to the Daroga ji in which conversation between the accused and complainant was recorded. It was further observed by the trial court that by opening seal cover one Audio Cassette (C.D.) was placed in the court and by opening another seal cover currency notes were found out of which one currency not of Rs. 100 no. 3UTJ-65866 was also found having signature of Superintendent of Police (City) Sri B.P. Jogdand. Learned trial court thereafter at page 14 of its judgment took ‘U’ turn and observed that Audio Cassette (C.D.) was not produced in the court in the evidence nor expert report was filed. It is further observed by the trial court that currency note containing the signature of Superintendent of Police (City) Sri Jogdand was also not produced by the prosecution in the court. Having observed the learned trial court by the impugned judgment acquitted the accused. Mr. Sandeep Tandon learned counsel for the opp. party no. 1 drew attention of this Court towards certain judgments of the Apex Court and argued that revision against the acquittal although maintainable but 4 does not permit re-appreciation of the evidence. He further argued that the revisional court while exercising jurisdiction under Sections 397 and 401 of Cr.P.C. cannot sit over the judgment of the acquittal passed by the learned trial court. Hon’ble Apex Court in the case of Akalu Ahir reported in [1973 (3) SCC 583] has observed in paragraph-8 as under:- “… the revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. … It is only in glaring cases of injustice resulting from some violation of fundamental principles of law but the trial court in the court of trial, that the High Court is empowered to set aside the order of acquittal and direct the retrial of the acquitted accused persons. From the very nature of this power, it should be exercised in exceptional cases and with great care and caution. Trials are not to be lightly set aside when such order expose the accused persons to a fresh trial with all its consequential harassment. This matter is not res integra and had indeed been dealt with by this court at least in the four cases noticed by the High Court. … It makes all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering re-trial. No doubt, in the opinion of this Court no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court’s power ordering retrial can be laid down. This Court, 5 however, by way of illustration, indicated the following categories of cases, which would justify the High Court in interfering with a finding of acquittal in revision: i. Where the trial court has no jurisdiction to try the case, but has still acquitted the accused; ii. Where the trial court has wrongly shut out evidence which the prosecution wished to produce; iii. Where the appellate court has wrongly held the evidence which was admitted by the Trial Court to the inadmissible; iv. Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and v. Where the acquittal is based on the compounding of the offence which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal.” In the case of Johar Vs. Mangal Prasad reported in [2008(3) SCC 423] in paragraph0-19 has held as under: “19. The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severally (sic severely) restricted particularly when it arises from a judgment of acquittal.” 6 Hon’ble Apex Court in the case of Akalu Ahir (supra) laid down five broad categories of cases, which would justify the High Court in interfering with the finding of acquittal in revision. From the perusal of the judgment of the trial court, I find that Audio Cassette (C.D.) was produced before the trial court and after opening the seal cover, it was placed before the learned Magistrate and PW-1 has stated before the Magistrate on oath that this is the same C.D. in which conversation between the PW-1 and the accused was recorded by the complainant. Not only this learned Magistrate himself recorded that currency note of Rs. 100 containing signature of Superintendent of Police (City) was also placed before him by opening the seal cover. Yet at another place the learned Magistrate took ‘U’ turn and observed that neither C.D. nor Rs. 100 note was produced before him. It seems while discussing the evidence the trial court overlooked this material evidence. I find both these material evidence escaped from the notice of the trial court, which could have thrown light on the controversy involved in the case. Had C.D. and currency note been noticed by the learned Magistrate then learned Magistrate could have recorded his finding on the authenticity, admissibility and reliability of the evidence produced. However, instead of giving his observation about the admissibility, reliability and authenticity of the evidence, he simply recorded that these two important evidence was not produced before him. Present case falls in category (iv) as laid down by Apex Court in the case of Akalu Ahir (Supra). 7 I, therefore, have no other option except to set aside the impugned judgment. I, therefore, allow the revision. The impugned judgment and order dated 27.03.2001 passed by the Additional Chief Judicial Magistrate, IInd, Dehradun is hereby set aside. The case is remitted back to the learned trial court. The trial court is directed to take into consideration the Audio Cassette (C.D.) produced in the case as well as Rs. 100 note produced before him and to record finding about the admissibility, reliability and authenticity of these evidence and after considering entire evidence he may decide the case afresh after hearing both the parties at length. Ordered accordingly. (Alok Singh, J.) VKG 07.12.2009