^- -t' -'"If fflE HIGH COURT OF JUDICATmE AT JABALPUR 'CASE 7S?_l3_OF CRIMINAL APPEAL N0.\s>\^ __GF ^099^^^^ APPMJLANT_! 'Kie State of Madhya Pradesh Versus RESPONDES^TS :£1• Mahendra Nath son of Prem Shanker, aged 52 years, resident ofBaikunthpur,3ls^Kox.^* €2. ^itaram son of Jiutram, aged 45 years, ^ resident of Kathgodi , •S^.KO'^^ '.y\--^^\& ^ 5» Anwartil Haque sonof Mphd, Ishaque,aged ^y'^^"'^^" ~" 36 years, resident of Baikunthpur^3>^,^ci ^y^;^' ^•••' ^ \ t4« Durga prasad son of__Radheyshyam,aged 55 ^"'"'^"^' J^ ^A^ ^-\ years>_resident ^Jcathgodi, --&,^ .^<nn^ ^ ^ / '^3i9$>^e^7f^Neen£anth, sonGfShridharKulkarni,aged^? o€^I "ksaxafxax^ 40 years,. resident of Baikunthpurj ^istrict Korea" (N.P.) ..- APPLICATION W DER SEGTION 578(ii3l) FQRGRANT OF LEAVE TO APEEAL UNQER SECIION 578<i) ;-QF IHE CODE OF CRIMINAL FR?JCEDURE~T9i7? ~~77T~ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) CRIMINAL APPEAL No. 1116/2000 APPELLANT RESPONDENTS VERSUS State of Madhya Pradesh Mahendranath and others. '^ Shri Akhil Mishra Dy. GA for the appellant/State. Shri A.K. Prasad counsel for the respondent No.1 Shri A.N. Pandey counsel for respondent No.2. Shri Mahendra Dubey counsel for respondents 3 and 4. APPEAL UNDER SECTION 378 (1) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (21.04.2010) This appeal has been filed against the impugned judgment dated 10.5.1999 passed by Chief Judicial Magistrate, Baikunthpur, in Criminal Case No. 33/1 986 acquitting the respondents/accused of the offence punishable under Sections 420, 409, 468, 471-A and 120-BIPC. 2. Brief facts of the case are that under the scheme introduced by State Government commonly known as Integrated Rural Development Programme (IRDP for short) two milking animats (cow and/or buffalo) were to be distributed to the beneficiaries. Further case of the prosecution is that though on paper, number of beneficiaries have been shown to have received the milking animals but in fact they have not received the same. It is stated that on the arrival of Prime Minister in the area, some complaint was made to him. Subsequently, an enquiry was directed to be conducted by Assistant Director, Agriculture namely Bhairon Prasad Khare (PW- 11). In the enquiry, it was found that number of beneficiaries have not received the milking animals and thereby respondents/accused have committed an offence under various sections. Furthercase of the prosecution is that at the relevant time respondent No.1 Mahendranath was the Branch Manager of the Regional Rural Bank, f€:l y^: ^^^- i:{%"'%. ^. 't -^ ^.c: -2.- '. respondent No.2 - Sitaram was the Gram Sewak under the Agricylture Department and respondents 3 and 4 were the villagers acting as mediators. In some of the cases respondent No.3 was the vendor of the animals and deceased/accused - Hansraj was also involved in the commission of the offence whereas deceased/respondent No.6 Neelkanth was the Veterinary doctor who had issued the health certificate in respect of the milking animals. It is alleged that during the enquiry conducted by Bhairon Prasad Khare (PW-11), one Nand Kumar Sonpakar (PW-8) did the physical verification of the animals and found that animals were not distributed to the beneficiaries. 3. So as to hold the accused/respondents guilty the prosecution has examined 15 witnesses. Statements of the respondents/accused were also recorded under Section 313 of the Code of Criminal Procedure in which they pleaded their innocence and false implication in the case. 4. After hearing the parties the Courtbelow has acquitted the respondents/accused ofthe charges levelled against them. 5. 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 mentioned above but having ignored the evidence available on record it has fallen in a grave error of law in awarding acquittal to them. He submits that despite the fact that Bhairon Prasd Khare (PW-11) and Nand Kumar Sonpakar (PW-08) have supported the case of the prosecution, merely on the basis of detailed enquiry conducted by Bhairon Prasad Khare (PW-11) the Court below ought to have convicted the respondents/accused. According to him in a case of mass cheating where number of villagers have been cheated and even if the villagers so cheated have not deposed anything against the respondents/accused, merely on that basis they ought not to have been acquitted. He submits that report of the enquiry officer ought to have been given much weight ignoring the other evidence. He submits that similar is the statement of Nand Kumar Sonpakar (PW- «^»»r^-»c..»^»»».^S»s WWWW^S,W^^.^^5^^*.>-^^W-^AV^^^ li ^'^ \^ ^.. —^- 08) where after due verification he has stated that the beneficiaries have not received the milking animals. 6. On the other hand counsel for the respondents/accused support the impugned judgment and submit that in the present case even the complainant namely Shiv Pal (PW-10) has not supported the case of the prosecution and has been declared hostile. From the record it is clear that he has not made any complaint whatsoever to anyone on the basis of which the respondents can be prosecuted. It is argued that even the persons who stood surety have not supported the case of the prosecution. It is argued that the enquiry officer namely Bhairon Prasad Khare (PW-11) has admitted that he was not legally competent to conduct the enquiry and no beneficiary has made any complaint before him. It is argued that the alleged incident is said to have taken place in the year 1982 whereas the FIR has been registered on 30.10.1985 and there is no reasonable explanation for such inordinate delay in making the so called complaint. It is argued that so called report of Bhairon Prasad Khare is not a part of the charge sheet nor it was produced before the Court at the time of trial and in the absence of the said report, even if Bhairon Prasad Khare (PW-11) has sated against the respondents/accused, they cannot be convicted. 7. Star witness Bhairon Prasad Khare (PW-11) has stated in his evidence that from 1979 to 29.9.1989 he was working as Assistant Director, Agriculture and was posted at Gramin Vikas Abhikaran, Ambikapur. He has stated that at the time of visit of the Prime Minister, the villagers of village Katgodi had made a complaint and on verification it was found that 10 beneficiaries had not received the first one animal out of the two for which they were entitled. This witness had conducted an enquiry in which he found that the respondents and other accused persons have committed the offence. This withess has however admitted the fact that he was not the controlling authority as he was not having the charge of that particular area but it was one N.P. Mishra who was having the charge of the said area. This witness has further stated that when he visited the area, no complaint whatsoever was made to him. This ..,^^^ ,^y"< r M. —V- witness has however admitted the fact that while giving the loan in favour of the beneficiaries, monitoring card was prepared in four copies - one for the beneficiaries, one for Block Development Officer, one to be kept by Bank Manager and one to be kept in the office record of DRDA. He has stated that during enquiry though the monitoring card was demanded by him, the same was not given to him. This witness has further admitted that he was directed by the Chief Executive Officer to conduct the enquiry but no such order has been filed or produced by him at the time of trial nor the same has been proved. Thus the very basis regarding authorization of Shri Bhairon Prasad Khare to conduct the enquiry is missing in the case in hand. This witness has also admitted the fact that at the time of enquiry he had recorded the statements of various persons but names of those persons have not been shown along with the challan nor copy of the same has been filed with it. Similar is the position with the statementof Nand Kumar Sonpakar (PW-08) in which he has explained the part of the procedure. This witness has however admitted that no complaint was made to him by any of the beneficiaries and no communication has been made from the office of the Block Development Officer. Since the complainant has not supported the case of the prosecution and has been declared hostile, there remains nothing but for the statement of Bhairon Prasad Khare (PW-11) who had made the enquiry against the accused/respondents. The trial Court has considered the entire case of the prosecution and passed the judgment of acquittal having appreciated the evidence available on record. 8. 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 complainant 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 judgment impugned acquitting the respondents /accused of the offences under Sections 420, 409, 468, 471-A and 120-B IPC, is just and proper and does not warrant any interference ^^ fV^\ ^ ^, C9/ ^ ^,^- ^ -r- by this Court. Accordingly, the appeal being without substance is liable to be dismissedand it is dismissed as such. Sd/- PritinkerDiwaker Judge ^Y m^