CR.A/651/1998 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 651 of 1998 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 - Appellant(s) Versus JAYANTIBHAI SHANKARLAL PANCHAL & 1 - Opponent(s) ====================================== Appearance : MR M.R.MENGDE, A.P.P. for Appellant(s) : 1, MR PRAKASH K JANI for Opponent(s) : 1 - 2. NOTICE SERVED for Opponent(s) : 2, ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 20/02/2008 ORAL JUDGMENT The State of Gujarat preferred the present appeal under Section 378 of the Criminal Procedure Code ('Code', for short) CR.A/651/1998 2/9 JUDGMENT questioning the legality and validity of the impugned judgment and order rendered by learned Judicial Magistrate First Class, Kheralu ('ld.Magistrate', for short) dated 21.10.1997 in Criminal Case No.344 of 1997. By virtue of the impugned judgment and order, the ld.Magistrate was pleased to acquit both the respondents-accused for the offences punishable under Section 406, 420 r/w.Section 114 of Indian Penal Code ('IPC', for short). 2. The case of the prosecution in nutshell is, on 20.01.1997, both the accused met the complainant Lavjibhai Kachrabhai and they represented before the complainant that the respondent-accused No.1 Jayantibhai Panchal had good acquaintance with Commissioner of Police, and therefore, the complainant Lavjibhai if so desires, can get job using the good acquaintance of the respondent-accused No.1 with the Commissioner of Police, if Rs.10,000/- is paid to him. Thereupon, relying upon the statement of the accused, Rs.7,500/- was paid to the accused. It is the case of the prosecution that subsequently, when the complainant did not hear anything about his service, he demanded back the sum of Rs.7,500/-, to which the accused gave evasive reply. It is further the case of the prosecution that in the similar manner, the accused have deceived others and received in all Rs.33,500/- by cheating those persons. Complainant Lavjibhai lodged his complaint before the police, and the Investigating Police Officer recorded statements of witnesses, recovered required documents. After completion of the investigation, chargesheet was filed in the Court of ld.Magistrate against both the respondents- accused for the offences punishable under Section 406, 420 r/w. Section 114 of IPC. 3. Since the accused persons did not plead guilty, the prosecution adduced its oral and documentary evidence. The prosecution examined the complainant Lavjibhai at Exhibit-10. The testimonies of CR.A/651/1998 3/9 JUDGMENT witnesses Keshavlal Ramabhai, Dineshkumar Karsanbhai, Mohanbhai Bhikhabhai and Babuji Mangaji were recorded at Exhibits -15, 19, 23 and 25 respectively. The prosecution examined Panch witness Somabhai Chauhan at Exhibit-17. The deposition of Investigating Police Officer Bhagwanbhai Koyabhai was recorded at Exhibit-28. No more witnesses were examined by the prosecution. The prosecution produced by way of documentary evidence, the FIR, relevant Panchnama and the Receipts. After the prosecution completed the evidence before the Trial Court, the ld.Magistrate recorded the further statement of both the accused persons under Section 313 of the Code, wherein generally they denied the allegations leveled against them by the prosecution, and stated that because of previous enmity, they are falsely roped in by the complainant in this case. 4. After considering the evidence on record, and after hearing the arguments advanced on behalf of both the parties, the ld.Magistrate delivered the impugned judgment and acquitted both the accused from the offences punishable under Section 406, 420 r/w. 114 of the IPC. 5. On behalf of the appellant-State, learned A.P.P. Mr.Mengde submitted that the impugned judgment and order delivered by the Trial Court is contrary to law and facts on record. That the ld.Magistrate erred in not properly appreciating the evidence on record. That the deposition of complaint Lavjibhai was not properly considered by the ld.Magistrate in its true perspective. That in the impugned judgment, ld.Magistrate observed that both the accused persons were unknown to the complainant Lavjibhai, but in fact, considering the deposition of the complainant Lavjibhai, he clearly stated that he was knowing the accused, as the accused was visiting the house of another witness examined by the prosecution named Keshavlal Panchal. That considering CR.A/651/1998 4/9 JUDGMENT the deposition of the complainant as a whole, it clearly transpires that both the accused had deceived the complainant and by making false representations of giving job, they recovered Rs.7,500/- from the complainant by way of wrongful gains. That even considering the deposition of witness Keshavlal Panchal, Exhibit-15, he consistently stated in his deposition on oath that in his presence, the accused received Rs.7,000/- by making false representation that he would be given job in Police Department. That this witness clearly admitted that the accused No.2 Mancharam Kevaldas Panchal was father-in-law of his brother. He further stated that accused No.1 Jayantibhai Shankarlal Panchal is uncle of accused No.2 Mancharam Kevaldas. That therefore, the ld.Magistrate in the impugned judgment when observed that this witness was not knowing the accused, cannot be considered, and it is contrary to the evidence adduced by this witness. Therefore, it is submitted that the prosecution proved its case beyond reasonable doubt against both the accused, and the ld.Magistrate committed serious illegalities in not appreciating the evidence adduced by the prosecution in the case. Hence, it is submitted that the appeal be allowed and the impugned judgment and order passed by the ld.Magistrate be set-aside, and both the respondents-accused be punished for the offences punishable under Section 406, 420 r/w. Section 114 of IPC in accordance with law. 6. As against this on behalf of the respondents, the learned Counsel Mr.P.K. Jani referring to the judgment delivered by the ld.Magistrate, together with the evidence on record, submitted that the ld.Magistrate did not commit any error in arriving at the conclusion that the prosecution failed to prove beyond reasonable doubt its case against the accused. That considering the deposition of complainant Lavjibhai, as well as the witness Keshavlal Panchal, it clearly transpires that they are not illiterate. At the relevant time, when offence was said to have been committed, complainant was studying in M.A. - Part-II, whereas the CR.A/651/1998 5/9 JUDGMENT witness Keshavlal Panchal, who has studied upto Std.11th and who is aged about 18 years on the date when his deposition was recorded. That the prosecution relied upon the receipts alleged to have been issued by the accused No.1 to the complainant and other witnesses from whom the accused is said to have received the money. In none of the receipts any date is mentioned. As per the depositions of the complainant and this witness Keshavlal Panchal, the handwriting of the contents of the receipts are of some relative of the accused No.1, and only the accused No.1 signed those receipts. That considering all these receipts, the receipts are signed at Village Rinchda, whereas the complainant and this witness Keshavlal Panchal are resident of Village Rajpur. That the Investigating Police Officer should have sent the receipts to the handwriting expert for the purpose of getting scientific opinion. That all the witnesses stated that the amount was paid by their respective fathers to the accused. Father of none of the witnesses was examined as witness in the case, nor the so-called relative of the accused in whose handwriting the receipts were prepared was examined. Ld.counsel Shri Jani for the respondents relied upon the judgment in the case of Chandrappa and others Vs.State of Karnataka reported in (2007)4 SCC 415, regarding the powers of the Appellate Court while dealing with the appeal under Section 378 of the Code. Therefore, it was submitted that the appeal be dismissed. 7. Now, considering the impugned judgment delivered by the ld.Magistrate, the ld.Magistrate after appreciating the evidence on record came to the conclusion that the prosecution failed to prove beyond reasonable doubt its case against the accused. Discussing the deposition of complainant Laljibhai, recorded at Exhibit-10, the ld.Magistrate further observed that this witness stated in his deposition that the amount was paid to the accused by his father. The ld.Magistrate further observed that this witness was not knowing the accused before the date CR.A/651/1998 6/9 JUDGMENT of offence. However, considering the deposition of the complainant Lavjibhai, it is stated that he was knowing the accused No.1 Jayantibhai Shankarlal, as Jayantibhai used to visit the house of one Panchal, who is prosecution witness No.2 named Keshavlal Panchal. However, considering the deposition of the complainant, he admitted that in the year 1997, he was studying in M.A.-Part-I. He stated that only the accused No.1 Jayantibhai had come to his house on 20.01.1997, and the accused No.1 told his father that he had good relation with Commissioner of Police, and if he is paid Rs.10,000/-, then he would get the appointment order of his son (the complainant) in the Police Department. That his father paid Rs.7,500/- to the accused. He produced a receipt issued by accused No.1 at Exhibit-14. However, in his examination-in-chief, he stated that the handwriting of the receipt – Exhibit-14 is of the relative of the accused. The accused only signed it. He further admitted that the accused No.2 neither demanded any amount from him nor he paid any amount to him. In his cross- examination, it is pertinent to note that not only he admitted that he had studied upto M.A., but he further admitted that if any person desires to get any job in Government Department, then as per the settled procedure, said Department issues public advertisement, and the person desirous of getting job shall have to apply in accordance with the public advertisement. Despite this, he says that the accused told him that he will get job as Head Constable in Police Department. Considering the deposition of witness Keshavlal Panchal, Exhibit-15, as stated above, his brother's wife is daughter of accused No.2 Mancharam Kevaldas, and relation between accused No.1 & 2 is that of uncle and nephew. However, he deposed that he studied upto Std.11th. He also admitted that neither the accused No.2 demanded any money from him nor he gave any money to accused No.2. However, he also stated that the receipt of Rs.7,000/-, Exhibit-16 bears the handwriting of relative of the CR.A/651/1998 7/9 JUDGMENT accused, however, the accused only signed it. However, considering the deposition of witnesses Dineshkumar Karsanbhai, Mohanbhai Bhikhabhai and Babuji Mangaji, they all admitted that the transaction regarding payment of money to the accused and the signature in the receipts did not take place in their presence. 8. In this connection, considering the impugned judgment delivered by the ld.Magistrate, it clearly transpires that the ld.Magistrate observed that though the prosecution relied upon receipts produced at Exhibits-14, 16, 20, 24 and 26, but all the witnesses consistently deposed that the receipts were written by relative of the accused No.1. None of the witness gave the name of such relative who has written the contents of the receipts, according to their say. It is further pertinent to note that in none of the receipts, the date is mentioned. Furthermore, perusing the entire evidence on record, it does not appear that the accused persons met all the witnesses, except the complainant, on 20.01.1997, and on the some date the accused received in all Rs.33,500/- from all the witnesses by cheating them. As per the say of the complainant, the accused met him and his father and recovered Rs.7,500/- on 20.01.1997, but even no date is mentioned in the receipt at Exhibit-14 said to have been issued by the accused to the complainant. So far as remaining witnesses are concerned, they did not say about the exact date when the accused met them and their fathers, and when they paid the demanded amount to the accused. However, in the receipts which those witnesses produced during the course of their depositions, no date is mentioned. Furthermore, the witnesses belong to Village Navawas (Rajpur). However, considering the receipts produced by them, it transpires that all those receipts were signed at Village Rinchda, Tal.Kheralu, Dist.Mahesana. As per the say of the witnesses, they paid the amount to the accused when accused had come to their village, but the receipts, are signed at Village Rinchda. Furthermore, it is CR.A/651/1998 8/9 JUDGMENT pertinent to note that baring the name of the person from whom the amount was received and the amount, the contents of these receipts are identical and similar. It is not the case of the prosecution that all these receipts are issued at a time. Despite this, the contents are identical and similar. 9. The ld.counsel Mr.Jani for the respondents relied upon the case of Chandrappa and others Vs.State of Karnataka (supra). The Honourable Apex Court in the said judgment regarding the powers of the Appellate Court, while dealing with an appeal against the order of acquittal observed as under:- “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”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise 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 CR.A/651/1998 9/9 JUDGMENT by the trial court. (5)If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not be disturbed by the appellate court.” 10. Therefore, in light of the entire above discussions, and considering the principle established by the Honourable the Supreme Court in the above referred decision, it cannot be said that the ld.Magistrate committed any illegality in acquitting the respondens- accused for the offences punishable under Section 406, 420, r/w. Section 114 of IPC. 11. In light of the entire above discussions, it further appears that considering the reasons assigned by the ld.Magistrate, as well as the discussions made by this Court in this judgment, the ultimate conclusion arrived at by the ld.Magistrate in acquitting both the accused persons does not require any interference by this Appellate Court. 12. In the result the appeal deserves to be dismissed, and the same is hereby dismissed. (J.C. Upadhyaya, J.) binoy