1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT GOVERDHANLAL VS. STATE OF RAJ. & ANR. SB Criminal Revision Pet. No. 15 of 2001 under Section 397 read with section 401 Cr.P.C. against the order dated October 3, 2000 of Judicial Magistrate First Class Khanpur in Case No. 239 of 2000 whereby non-petitioner No.2 Bhanwar Singh was acquitted from offence under section 408 IPC. Date of Order : April 10 , 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Sanjay Mehrishi for the petitioner. Mr. Piyush Kumar, Public Prosecutor. BY THE COURT : This revision petition has been filed by the petitioner Goverdhan Lal, against the order dated October 3, 2000 of Judicial Magistrate First Class Khanpur in Case No. 239 of 2000 whereby non-petitioner No.2 Bhanwar Singh was acquitted from offence under section 408 IPC. 2. Brief facts of the case are that on December 11, 1998 a written report was submitted by the petitioner in Police 2 Station Khanpur whereby it was stated that the petitioner owned Mini Bus No. RSO 7865 and he had employed non-petitioner No.2 Bhanwar Singh Rajpoot as a Driver on the Mini Bus. The Bus was used on the route of village Dahikheda and Khanpur. It was stated that on July 12, 1998 the petitioner gave Rs. 10,000 to the non- petitioner and sent him to get the bus repaired. When the petitioner did not hear anything from the non-petitioner No.2 for the last 15 days, the petitioner went in the search of the Bus and the non- petitioner Driver. The petitioner carried on his search but he could not trace the bus and the non-petitioner. On the basis of the above report a case No. 403 of 1998 under sections 406, and 420 IPC was registered. After investigation police submitted charge sheet under sections 420, 406, 467, and 468 IPC. Vide order dated August 8, 2000 the trial court framed charge under section 408 IPC against tne non- petitioner. He was sent in Judicial 3 custody on August 6 , 2000 and the trial court framing charge under section 408 IPC conducted the trial and vide judgment dated October 3, 2000 acquitted the non- petitioner No.2 from the charge under section 408 IPC. Aggrieved against this order the petitioner preferred this revision petition. 3. The learned counsel for the petitioner argued that the court below without going through the entire record and evidence wrongly acquitted the accused non-petitioner for offence charged against him. The petitioner was not afforded any opportunity of leading any evidence to establish the guilt of the non-petitioner. No notice requiring the presence of the petitioner for evidence was ever served upon the petitioner nor any report was received that the notices had been served upon the petitioner and other witnesses. In these circumstances the trial court could not have proceeded with the trial of the case. The trial court erred in closing prosecution evidence 4 solely on the ground that the accused non- petitioner was in judicial custody and note regarding the same was also made on the bailable warrants of the witnesses but the service of the same was not effected on the prosecution witnesses and warrants were not presented before the trial court with the report regarding the service. The petitioner contends that if the prosecution agency could not get the warrants served upon the prosecution witnesses the petitioner could not be penalised for the same. The non-petitioner No.2 who was driver of the petitioner had taken away the Mini bus along with Rs. 10,000 entrusted by the petitioner to him. The non-petitioner committed criminal breach of trust but the trial court without affording any opportunity to the petitioner for leading his evidence arbitrarily acquitted the non-petitioner No.2 from charge under section 408 IPC. 4. The learned Public Prosecutor on the other hand opposed the submissions of learned counsel for the petitioner and stated that the court below after considering all the evidence, documents 5 and record passed the order of acquittal. There is no illegality or infirmity in the order passed by the court below. 5. I have heard the learned counsel for the parties and gone through the entire record. The judgment passed by the court below is perfectly according to law and there is no illegality or infirmity in the same. The trial court given sufficient opportunity to the prosecution to get service of the bailable warrants of the witnesses but the prosecution could not take steps to do so and hence the non- petitioner who was in judicial custody, the trial court closed the evidence of the prosecution and as per the material available on record, after hearing the arguments acquitted the non-petitioner. It has come on record that as per the statement of Notary Public Narendra Singh, PW.1, the petitioner sold the vehicle through sale letter dated March 7, 1998as per the entry made in his register and 6 hence he could not be said to be the owner of Mini Bus on December 11. 1998 and hence he could not appear before the court for giving his evidence. The court's attention was drawn on the judgment of the Hon'ble Supreme Court in Umrao Vs. State of Harayana & Ors. SC 2006 Vol.10 Page 136 in which their Lordships of the Supreme Court has observed in para 26 that “it is now well settled that if two views are possible, the appellate court should not interfere with the judgment of acquittal passed by the court below.” 6. Thus the order passed by the court below does not call for any interference in revisional jurisdiction and the revision petition stands dismissed. (Mahesh Chandra Sharma) J. OPPareek/