3 IN THE HIGH COURT OF CHHAmSGARH AT BILASPUR (C.G.) CR. M. P. N0. l 1 / 2009 ACQUITTAL APPEAL No._/ 2009 APPLICANT/ APPELLANT NON-APPLICANTS RESPONDENTS ^...•--^^ <s ^:ils^^ ^.^ •'' ^ State of Chhattisgarh, Through the District Magistrate District Mahagamund (C.G.) VERSUS Gopilal Dewangan, S/o Tejrain Dewangan, Aged about 45 years R/o Risali Sector Bhilai, P.S. Nevai, District Durg (CG.) Ranaa De S/o Kamal De, Aged about 40 years R/o New Khursipar, near Ganesh Bekari P.S. Chhawani, Dista-ict Durg (C.G.) APPLICATIQN FQR GRANT QF LEAVE TO APPEAL UNDER ~^ SECTIQN 378131 AND MEMORANDUM OF APPEAL UNDER SECTK>N 378tlLO]FLTHE^CODE OF CRIMINAL PROCEDURr 1973 .y'"!??^>^ ..T"^^^ '';...->;'^N^\ •"'csy..<^ •A. 2. Q ^;° ?.-,i'b3- l"^i HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Cr. M.P. No. 494 of 2009 APPLICANT RESPONDENTS VERSUS State of Chhattisgarh Gopilal Dewangan and another. Shri Praveen Das, Dy. GA for the applicant/State. APPLICATION UNDER SECTION 378 (3) OF THE CODE OF CRIMINAL PROCEDURE ORDER (01.02.2010) Present petition is directed against the impugned judgment dated 4.10.2008 passed by Additional Sessions Judge, Mahasamund in Criminal Appeal No. 04/2007 allowing the appeal filed by the respondents/accused and acquitting them of the offence punishable under section 420/34 IPC. By the judgment impugned, the judgment dated 20.11.2006 passed by the Judicial Magistrate First Class in Criminal Case No. 200/2005 convicting and sentencing the respondents/accused under Section 420/34 IPC has been set aside. 2. Case of the prosecution in brief is that written report Ex. P-1 was lodged by Purnima Gupta (PW-1) alleging that she responded to the advertisement dated 18.6.2002 contained in the matrimonial column of Deshbandhu newspaper. This advertisement is said to have been issued by respondent No.1 namely Gopilal Dewangan. Thereafter, as alleged by the complainant, she came in contact with respondent No.1 and later on, respondent No.2 namely Rama De had taken a loan of Rs. 3,000 from the complainant. It is alleged that respondent No.1 Gopilal Dewangan also borrowed Rs. 58,000 from her in order to renovate his beauty parlor, and for providing this money to respondent No.1 the complainant had liquidated her fixed deposits. It is alleged by the complainant that despite her best d^J ^ I- t ^' k. '^^^ "t's£Sfaf' —2— efforts, they have not returned the money to her and thus committed cheating. On the basis of the said written complaint, FIR (Ex. P-2) was registered. 3. In support of its case the prosecution has examined as many as 9 witnesses in support of its case. Statements of the respondents/accused were also recorded under Section 313 of the Code of Criminal Procedure in which they have denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties learned Magistrate had convicted the respondents/accused under Section 420/34 IPC and sentenced each of them to undergo rigorous imprisonment for three years and pay fine of Rs. 1,000. The said order of learned Magistrate was challenged in appeal before the Additional Sessions Judge, Mahasamund, who by the impugned judgment allowing the appeal set aside the same and acquitted the respondents of the charges levelled against them. Hence this petition. 5. Counsel for the applicant/State submits that the acquittal of the respondents/accused of the charges mentioned above is not in accordance with law and nn the basis of material available on record the appellate Court below ought to maintained the conviction recorded by the learned Magistrate but a grave illegality has been committed by it in awarding acquittal bythejudgment impugned. 6. On the other hand counsel for the respondents/accused supports the judgment impugned and submits that the findings recorded by the appellate Court below being fully justified do not require any interference in this petition. 7. Heard counsel for the parties and perused the material availableon.record. 8. From the material available on record it is revealed that the respondent No.2 had taken Rs. 3000 from the complainant and •?;r~'i(> ^? ^ ';1 '••;.•. 'TiSStet, ':! 'V.^l?^.';.^^. ^ respondent No.1 had taken Rs. 58,000 from her on 2.8.2002. On 2.8.2002 a receipt was also issued by respondent No.1 and subsequently on 9.9.2002 an agreement was executed between the parties. Statement of the complainant namely Purnima Gupta (PW-1) reveals that pursuant to the advertisement containing matrimonial column issued by respondent No.1 she came in contact with him and thereafter they became acquainted to each other. Statement of the complainant further shows that the amount of Rs. 3,000 was given by her to respondent No.2 and thereafter Rs. 58,000 were given to respondent No.1. It also appears from her statement that the documents were duly executed between the parties and even the legal notices were also given to each other. Though the complainant has made an allegation that she was subjected to threat by the respondents, she has not been able to substantiate the same by leading evidence in this regard. It also appears from her statement that a civil suit is also pending between the parties. Pranay Gupta (PW-3) has also made similar statement as by his mother Purnima Gupta (PW-1). This witness has admitted that that the documents were duly executed between the parties. From the record it is not clear that the complainant was subjected to cheating at the hands of the respondents/accused or that after being allured by respondent NO'.I to marry her, the amount was given to him. Moreover, it is revealed from the record that the dispute between the parties is of civil nature for which the civil suit is already pending. 10. After going through the material available on record, keeping in view the fact that the dispute between the parties is of civil nature and for that a civil suit is already pending, and being very much conscious of the existing legal position that in an appeal against acquittal if two views are possible on the basis of the evidence led by the prosecution and the trial Court taking one view favoured the accused, this Court is of the considered opinion that reversion of the findings of acquittal by the appellate Court taking the other possible view into consideration, is not permissible in law and therefore the r~ _.^it<'*"---.^ ;.^.,.ra,;^ !t!'(.^;°st:B» •<-t judgment impugned acquitting the respondents/accused of the offence under Section 420/34, is just and proper and does not warrant any interi'erence by this Court. Accordingly, the leave to appeal sought for by the applicant/State is hereby refused. Sd/- PritinkerDiwaker Judge ' if^-1,