CR.A/770/1998 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 770 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 LALLUBHAI MAGANBHAI BARIYA & 1 - Opponent(s) ====================================== Appearance : MR M.R. MENGDE, A.P.P. for Appellant(s) : 1, DELETED for Opponent(s) : 1, NOTICE SERVED for Opponent(s) : 2, ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 07/03/2008 ORAL JUDGMENT The State of Gujarat preferred this appeal under Section 378 of the Code of Criminal Procedure ('Code', for short) challenging the legality CR.A/770/1998 2/8 JUDGMENT and validity of the judgment and order passed by learned Chief Judicial Magistrate, Nadiad ('ld.Magistrate', for short) on 21.01.1998 in Criminal Case No.1547 of 1982. The ld.Magistrate by virtue of the impugned judgment and order was pleased to acquit the respondent-accused No.2 Jasbhai Somabhai for the offence punishable under Section 408 r/w. Section 114 of Indian Penal Code ('IPC', for short). 2. Perusing the impugned judgment and order, it transpires that so far as respondent-accused No.1 Lallubhai Nagarbhai Bariaya was concerned, he had died pending the original Criminal Case and even before it came to be disposed of by virtue of the impugned judgment and order by the ld.Magistrate. It further transpires that respondent-accused No.1 Lallubhai Nagarbhai had died on 25.7.1996. In the result, the ld.Magistrate proceeded the case only against the respondent-accused No.2 Jasbhai Somabhai, and as stated above, the ld.Magistrate was pleased to acquit the respondent-accused No.2 Jasbhai Somabhai. 3. The case of the prosecution in nutshell is that during the period from 1st July 1976 to 30th June 1977, the deceased-accused No.1 Lallubhai Nagarbhai was performing his duties in the capacity as Secretary of Nadiad Taluka Primary Teachers & Peons Cooperative Society, Uttarsanda, and the accused No.2 Jasbhai Somabhai was performing his duties in the capacity as Chairman in the aforesaid Society. That by interpolating and making false entries in the books of accounts maintained by the Society, both the accused misappropriated Rs.16,114/- during the period from 1.7.1976 to 30.6.1977, and thereby committed offence punishable under Section 408 r/w. Section 114 of IPC. Perusing the judgment and order, it transpires that in connection with this offence one Bhupatsinh Bhaijibhai lodged the FIR before the police. After the completion of the investigation, the police filed CR.A/770/1998 3/8 JUDGMENT chargesheet against both the accused persons. The ld.Magistrate framed charge for the offence punishable under Section 408 r/w. Section 114 of the IPC against both the accused, and they both did not plead guilty, and thereby, the prosecution adduced oral and documentary evidence. As stated above, meanwhile the accused No.1 Lallubhai Nagarbhai who was performing his duties during the relevant period as Secretary of the Society had expired. Therefore, the ld.Magistrate proceeded the case further only against the respondent-accused No.2 Jasbhai Somabhai. The prosecution examined witness Shanabhai Baraiya at Exh.23, who was one of the Members of the Society in the capacity as Teacher. The prosecution examined witness Ravjibhai Shivabhai at Exh.75, who was also one of the Member of the Society. The prosecution examined witness Raijibhai Motibhai at Exh.76, and he was also one of the Members of the Society during the relevant period in capacity as Teacher. No more witnesses were examined by the prosecution. The ld.Magistrate recorded further statements of the accused u/s.313 of the Code, and the accused generally denied all the allegations leveled against them by the prosecution. After considering the evidence on record, and after hearing the arguments of learned advocates representing both the parties, the ld.Magistrate delivered the impugned judgment and order, whereby he was pleased to acquit the respondent- accused No.2 Jasbhai Somabhai for the offence punishable u/s.408 r/w.Section 114 of the IPC. 4. On behalf of the appellant-State of Gujarat, ld.A.P.P. Mr.M.R.Mengde submitted that the impugned judgment delivered by the ld.Magistrate acquitting the respondent-accused No.2 is contrary to law and evidence on record. That the prosecution successfully proved that at the relevant time this accused was performing the duty as Chairman of the Society, and that till this period, respondent-accused No.2 Jasbhai CR.A/770/1998 4/8 JUDGMENT Somabhai along with the deceased-accused Lallubhai Nagarbhai committed serious irregularities while maintaining the books of accounts. That the object of the Society was to create fund, which was to be utilised by giving loans to its Members whenever such necessity arose for the Members to take loan. That the Teachers and Peons were the Members of the Society. That during the relevant period as per the evidence on record, many Members who had earlier taken loan from the Society had repaid the amount of loan, but the same was not credited in the books of accounts of the Society. That thus, both the accused misappropriated the amount worth Rs.16,114/-, and thereby committed such offence. That the prosecution successfully proved its case against the accused No.2. Despite this, the ld.Magistrate acquitted the said accused. That the ld.Magistrate erred in not properly appreciating the evidence on record, therefore, it is submitted that the impugned judgment and order passed by the ld.Magistrate be set-aside and the respondent-accused No.2 Jasbhai Somabhai be appropriately convicted for the offence punishable u/s.408 r/w. Section 114 of the IPC. 5. None appeared for respondent No.2 Jasbhai Somabhai. 6. Before the evidence adduced by the prosecution in this case is again appreciated, it would be necessary to consider the principles established by Honourable Supreme Court in the case of Chandrappa and others Vs.State of Karnataka reported in (2007)4 SCC 415: (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. CR.A/770/1998 5/8 JUDGMENT (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 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.” 7. Therefore, keeping in mind the above principles established by Honourable the Supreme Court, if the evidence adduced by the prosecution in this case is re-appreciated, then it becomes clear that in this case, the prosecution did not examine even the original complainant Bhupatsinh Bhaijibhai who had lodged the FIR before the police in connection with this offence. The prosecution examined 3 witnesses in capacity as Members of the Society, and they were Shanabhai Nanjibhai Bariaya, Ravjibhai Shivabhai, Raijibhai Motibhai. No panch witness is examined regarding the seizure of the relevant record from the Society. Even the Investigating Police Officer who has investigated the offence has not been examined by the prosecution in this case. Considering the depositions of above-referred 3 witnesses, it becomes clear that during CR.A/770/1998 6/8 JUDGMENT the relevant period i.e . from 1.7.1976 to 30.6.1977, the deceased- accused No.1 Lallubhai Nagarbhai was performing his duty as Secretary in the Society and the respondent-accused No.2 Jasbhai Somabhai was performing his duty as Chairman. It also transpires, considering the depositions of 3 witnesses, that Society used to advance loans to its Members, who were Teachers and Peons, and they used to repay the loan by installments, at the interval of every month when they used to receive their salary. During the course of the deposition, witness Shanabhai Nanjibhai referred the instances by giving names of different Teachers and Peons, who had actually paid installments towards the repayment of their loans, but, in fact, the amount was not credited in the books of accounts of the Society. In his cross-examination, he stated that he became Secretary of the Society on 1.12.1979. He admitted that the entire accounts maintained by the Society from the year 1971 to 1979 was placed before different meetings of the Members of the Society and the account was found proper and the same was sanctioned. He further stated that it was the Secretary of the Society (deceased-accused No.1 Lallubhai Nagarbhai) who had presented the relevant account in those meetings of the Members of the Society during the period from 1971 to 1979. He further stated that he had not verified the books of accounts maintained by the Society regarding those Teachers and Peons whose money was alleged to have been misappropriated by the accused persons. In his cross-examination, he further admitted that during the relevant period, if any Teacher or Peon had to take loan, he had to apply, and the application was required to be given to the Secretary of the Society. As stated above in his deposition, he admitted that at the interval of every month Peon Dahyabhai was performing the duty of collection of installments and one Criminal Case of misappropriation was also filed against the said Peon Dahyabhai. Even in his cross- examination, he admitted that the accounts were audited by the Auditor, CR.A/770/1998 7/8 JUDGMENT and no irregularities were found by the Auditor. Lastly, he stated that he wanted to be the Secretary of the Society, but both the accused did not help him, and therefore, during the relevant period, he could not become Secretary, but from 1st December, 1979, he could become Secretary. 8. Almost similar is the deposition of witnesses Ravjibhai Shivabhai and Raijibhai Motibhai. In nutshell, both the witnesses stated that they had obtained loan from the Society, but they received a notice issued to them by the Secretary of the Society (deceased Lallubhai Nagarbhai) about their outstanding dues. But, in fact, they had paid their installments. Considering their depositions, nowhere it transpires that any role was played in connection with their debts by the Chairman of the Society (accused No.2 Jasbhai Somabhai). 9. As stated above, the prosecution did not examine the original complainant Bhupatsinh Bhaijibhai who had lodged the FIR before the police, nor said FIR was produced on record during the course of trial in the Criminal Case. No Panch witness was examined in connection with the seizure of necessary record from the Society. And even the Investigating Police Officer, who conducted the investigation was not examined as witness in the investigation. The ld.Magistrate in the impugned judgment and order discussed at length the evidence adduced by the prosecution and as there was no cogent and convincing evidence, came to the conclusion that the prosecution failed to prove its case beyond reasonable doubt against the respondent-accused No.2 Jasbhai Somabhai . Under such circumstances, there is no reason whatsoever for this Appellate Court to interfere with the judgment and order passed by the ld.Magistrate. 10. In the result, the appeal deserves to be dismissed, and the same is CR.A/770/1998 8/8 JUDGMENT hereby dismissed. (J.C. Upadhyaya, J.) binoy