,^-" IN THE HIGH CDURT OF JUDICM'URE AT JABAL APPLICMT APPBLLAE^ f'Mlse'.^'iTeaseMo. ^ll^ ,.^:> Cri.Appeal Mo. 3'^35-< /99 $ State of Kiadhya Pradefah thro^gh S.H.G., P.S, Jamyl Distt. Durg. - VBRBJS - NON-APPLICANTS ^ \^. ^ t 1<Surendra Eumar S/o Sonpal Jain aged aboiit 45 years R/o Road No»22 Qy.arter No»5/1-B Market^ Sector 6 Bhilai Distt-.Durg. 2* Chhaviram S/o Ganesh. Ram Verma aged about 5^ years R/o Sector-6 Road No.29, Qaarter Ko.2-^, Bhilai, .Distt.Burg. 3. Ravishanker,Bai S/o B.R.Rai, aged aboiit 55 years, Barapathar ¥ard, Seoni. APFLICATION TOR GRMT OF LEA¥E TO APP2AL U/S 578(iii) CRIMMM. PHOGEmRE,..ffl&E;/APPEAL U/S 378(i) Cr.P.C. ^i @ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 3092 of 1999. APPELLANT RESPONDENTS VERSUS State of Madhya Pradesh (now Chhattisgarh) Surendra Kumar and others. i- Shri Neeraj Mehta PL for the appellant/State. Shri Somnath Verma counsel for respondent No.2. Shri SunilSahu counsel for respondent No.3. CRIMINAL APPEAL UNDER SECTION 378 (1) OF THE CODE OF CRIMINAL PROCEDURE. ORDER (11.02.2010) The instant appeal is directed against the impugned judgment dated 11.2.1999 passed by Judicial Magistrate First Class, Durg in Criminal Case No. 292/1995 acquitting the respondents/accused of the offences punishable under Sections 420 and 407/34 IPC. 2. Brief facts of the case are that on 7.10.1988 a written report was lodged by one D.C. Shrivastava, S. D.0. Public Works Department, alleging that 654.05 metric tonnes of cementwhich was allotted to the respondents/accused to be handed over to the office of Public Works Department, Sub Division, Seoni, has been misappropriated by them. It is alleged that the respondents No. 1 and 2 were the transporters whereas respondent No.3 was the contractor. On the basis of this written report FIR was registered against the respondents/accused. It is pertinent to note here that neither the written report nor the FIR has been exhibited by the prosecution. \ 3. After completion of the investigation challan was filed under Sections 420 and 407/34 IPC against the respondents/accused and they were tried before the competent Court. /:: 4. The prosecution has examined only one witness in support of its case. Statements of therespondents/accused were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 5. After hearing the parties the Court below has acquitted the respondents/accused of the charges levelled against them. Hence this appeal. 6. Counsel for the appellanVState, submits that on the basis of material available on record the Court below ought to have convicted the respondents/accused for the offences under sections 420 and 407/34 IPC but having ignored the evidence adduced by the prosecution and thereby awarding acquittal to them it has landed itself in a grave legal error. He submits that the Court below ought to have given one more opportunity to the prosecution for producing its witnesses. 7. On the other hand counsel for the respondents/accused has supported the impugned judgment. He submits that the prosecution was given enough opportunity to adduce the evidence and from 1.2.1991 to 25.1.1999 time was being sought by the prosecution itself to lead evidence but no evidence has been adduced but for the evidence of M. Farnandies (PW-1), clerk of SECL, Jamul - seizure witness of certain documents. 8. From the record it is clear that despite sufficient opportunity, the prosecution has failed to produce its witnesses before the Court for their examination and in these circumstances the trial Court was left with no other option but to acquit the respondents/accused of the charges levelled against them. 9. Thus after going through the material available on record 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 evidence led by the prosecution and the trial Court taking one view '^ -s- 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 judgment impugned acquitting the respondents /accused of the offences under Sections 420 and 407/34 IPC, is just and proper and does not warrant any interference by this Court. Accordingly, the appeal being without substance is liable to be dismissed. It is accordingly dismissed. Sd/- Pritinker Diwaker Judge C(T