CR.A/626/1999 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 626 of 1999 With CRIMINAL APPEAL No. 628 of 1999 To CRIMINAL APPEAL No. 629 of 1999 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 ON BEHLAF OF K B PAREKH - Appellant(s) Versus ASHOKHBHAI PATEL - Opponent(s) ====================================== Appearance : MR MR MENGDE, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, MR JAYESH A DAVE for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 08/02/2008 ORAL COMMON JUDGMENT : CR.A/626/1999 2/6 JUDGMENT 1. Being aggrieved and dissatisfied with the impugned common judgment and order delivered by the Ld. Chief Judicial Magistrate, Valsad, [hereinafter referred to as 'the learned Magistrate'] dated 9/4/1999 in Criminal Cases No. 3494, 3495 and 3496 of 1993, whereby the present respondent accused came to be acquitted from the offence punishable under section 92 of the Factories Act, 1963 [hereinafter referred to as 'the Act'] read with rule 95 (1) of the Gujarat Factories Rules, 1963 [hereinafter referred to as 'the Rules'], the State of Gujarat preferred this appeal under section 378 of the Code of Criminal Procedure, 1973. 2. The case of the prosecution, in nut-shell, is that Factor Inspector, Valsad Mr. KB Parekh, paid visit on 5/3/1993 in the factory of the respondent – accused, named Hindustan Electro Platting, GIDC , Kapilpor, Navsari. That during the visit of Factory Inspector, certain irregularities were found. Three workers, named Shivkumar Bharati, Premabhai Rathod and Balubhai Morarbhai, were working in the factory. Upon inquiry by the Factory Inspector, those workers stated that they have not been given earned leave cards in accordance with Form No. 19 by the employer - accused. That thereby, the accused committed breach of rule 95(1) of the Rules punishable under section 92 of the Act. In connection with each worker, the Factory Inspector filed separate criminal complaint in the Court of the learned Chief Judicial Magistrate on 17/5/1993. Perusing the record of three cases, it transpires that CR.A/626/1999 3/6 JUDGMENT the learned Magistrate, with consent of both the parties, recorded common evidence and ultimately disposed of three cases by impugned common judgment. 3. The learned Magistrate recorded the testimony of Factory Inspector Mr. Parekh at exh. 28. During the course of his deposition, certain documentary evidence was produced. No more witness was examined by the prosecution. After perusing the evidence on record and after hearing the arguments advanced on behalf of both the parties, the learned Magistrate came to the conclusion that the prosecution failed to prove beyond reasonable doubt the offence charged against the accused. Ultimately, in all the three cases the respondent – accused came to be acquitted. 4. On behalf of the appellant – State, Ld. APP Mr. Mengde argued that the learned Magistrate committed error in acquitting the respondent – accused from the serious offence under the Act. That Factory Inspector is a Gazetted Officer. There was no reason to discard his testimony by the learned Magistrate. The deposition of the Factory Inspector is supported by documentary evidence. The prosecution proved beyond reasonable doubt that the earned leave cards were not supplied to the three workers, which is a serious offence. That as a matter of fact, considering the documentary evidence, accused himself admitted the non-compliance and, therefore, subsequently he complied with the direction issued by the Factory Inspector, but thereby it cannot be said that the accused has not committed any breach of the Rules. CR.A/626/1999 4/6 JUDGMENT Therefore, it is submitted that the impugned judgment and order passed in the aforesaid three criminal cases by the learned Magistrate, whereby the respondent – accused came to be acquitted, be set aside by allowing these appeals and the respondent – accused be punished for the commission of the offence under section 92 of the Act in accordance with law. 4.1. On behalf of the respondent – accused, learned counsel Mr. JA Dave submitted that the impugned judgment and order delivered by the learned Magistrate in the aforesaid three criminal cases is legal, valid, correct and in consonance with the evidence on record. That in the impugned judgment, the learned Magistrate has assigned valid reasons while coming to the conclusion that the respondent – accused deserved acquittal. That during the course of the deposition of the Factory Inspector Mr. Parekh, he himself produced on record a letter dated 16/3/1993 written by the respondent – accused addressed to the Factory Inspector Mr. KB Parekh, wherein in para. 5 he has categorically stated that the earned leave cards were issued by him to the workers, named Shivkumar Bharati, Premabhai Rathod and Balubhai Morarbhai for the year 1993 in prescribed form and that the workers had given statements to this effect. That despite this, on 17/5/1993 the Factory Inspector filed the aforesaid three complaints. Even perusing the complaint, the Factory Inspector did not refer the letter addressed to him by the accused dated 16/3/1993. That this letter is produced by the prosecution and, therefore, there is no reason not to rely upon this letter. Therefore, it is submitted that these three appeals deserve to be CR.A/626/1999 5/6 JUDGMENT dismissed. 5. I have perused the record and proceedings of three cases and the impugned common judgment delivered by the learned Magistrate. There is no dispute that the Factory Inspector Mr. Parekh paid visit to the factory of the accused on 5/3/1993. There is also no dispute that three workers, named, Shivkumar Bharati, Premabhai Rathod and Balubhai Morarbhai, were working at the time when the Factory Inspector paid visit to the factory of the accused. The case of the prosecution is that at the time of visit of the Factory Inspector, three workers could not show the earned leave cards in prescribed form to the Factory Inspector. Perusing the deposition of the Factory Inspector coupled with the letter exh. 34 dated 16/3/1993 written by the accused to the Factory Inspector Mr. Parekh, in para. 5 the accused categorically stated that for the year 1993 he had issued the earned leave cards to the aforesaid three workers and the workers had received such cards and in token thereof, their statements were recorded. Perusing the deposition of the Factory Inspector Mr. Parekh, exh. 28, it clearly transpires that this letter is produced by the prosecution during the course of his deposition. Therefore, there cannot be any doubt regarding not only genuineness of this document, but even contents thereof. In his cross-examination on behalf of the defence, the Factory Inspector admitted that at the time of his visit to the factory of the accused, he did not record the statements of aforesaid three workers nor he drew any panchnama or prepared any report. In the impugned judgment, the learned Magistrate appreciated the CR.A/626/1999 6/6 JUDGMENT above evidence in its true perspective. In para. 13 of the impugned judgment, the learned Magistrate assigned cogent and convincing reasons in coming to the conclusion that though the accused clearly stated in his letter addressed to the Factory Inspector dated 16/3/1993 that the cards had been supplied to the workers, yet on 17/5/1993 the Factory Inspector launched criminal prosecution against the accused. 6. It is well settled that although the appellate Court is vested the powers to re-appreciate and re-evaluate the evidence on record, but generally it would not interfere with an order of acquittal unless it is found that the judgment of the trial Court is perverse, contrary to the materials on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 7. In the result, in light of the above discussions and perusing the evidence on record and the impugned judgment delivered by the learned Magistrate, it appears that the trial Court did not commit any error in recording the finding of acquittal in favour of the respondent – accused. I do not find any valid or justifiable ground to interfere with the impugned judgment and order of trial Court. 8. For the foregoing reasons, these three appeals are dismissed. ( J .C. UPADHYAYA, J. ) *Pansala.