CR.A/783/1994 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 783 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ARVINDBHAI JAGJIVAN - Opponent(s) ========================================================= Appearance : Ms DARSHNA PANDIT Ld. APP for Appellant(s) : 1, MR MA MEMON for Opponent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 08/01/2008 ORAL JUDGMENT 1. The present appeal has been filed by the appellant-State under sec. 378 of CrPC against the judgment and order of acquittal dated CR.A/783/1994 2/6 JUDGMENT 9.5.1994 passed by the learned Judicial Magistrate First Class, Bagsara in Criminal Case No. 267 of 1992. 2. According to the prosecution, against the present respondents, a complaint was filed and investigation was carried out by the police for the offence punishable under section 468, 465, 188 and 34 of IPC. After completion of investigation, the charge-sheet was filed in the Court of learned Judicial Magistrate First Class, Bagsara. Thereafter, the Criminal Case No. 267 of 1992 was registered against the respondents. The witnesses were examined and documentary evidence were also produced before the trial court and the statements of the respondents were recorded under sec. 313 of CrPC by the trial court. At the end of the trial, both the respondents were acquitted by the learned Judge. Against the said judgment and order of acquittal, the present appeal has been preferred by the appellant. 3. Heard Ms. Darshana Pandit learned APP for the appellant. She has submitted that the trial court has not applied its mind while passing the acquittal order. It is on record to show that both the respondents, in collusion with each other, misused the receipt of examination and photograph of respondent no. 2 was taken out and respondent no. 1 has affixed his own photograph and bogus signatures of Principal and other officers of the school were obtained and CR.A/783/1994 3/6 JUDGMENT thereafter appeared in the examination. She has also submitted that prima facie it shows that both the respondents have committed the alleged offence and forged the document like examination receipt and respondent no. 1 has appeared in the examination on behalf of respondent no. 2. She has also submitted that no doubt there may be some negligence in the investigation by the Investigating Agency and proper investigation may not be carried out by the Investigating Agency, but it is not fatal to the prosecution case and the learned Judge cannot apply his mind in such a way and hold that the prosecution has failed to prove its case beyond reasonable doubt. 4. Learned advocate Mr. MA Memon appearing on behalf of the respondents, is heard. He has submitted that it is a case of documentary evidence and just to prove forgery, the important aspect of hand writing expert's opinion is required to be produced on record, but the Investigating Agency did not bother to obtain any expert's opinion. It is also submitted by Mr Memon that it is not proved by the prosecution that how receipt for appearing in the examination was prepared in the name of respondent no. 1. He has also submitted that so far as the provision of sec. 465 of IPC is concerned, the ingredients of cheating cannot be satisfied within the meaning of said section by CR.A/783/1994 4/6 JUDGMENT the prosecution. It is also submitted that the learned Judge has rightly applied his mind and proper reasons are also given and prosecution has failed to produce the evidence to prove the charges levelled against the present respondents. He, therefore, submitted that this appeal cannot be entertained and the same may be dismissed. 5. Heard both the learned advocates appearing for the parties. Read the judgment of the trial court. Learned APP has drawn my attention at para-11 of the judgment. It is true that the trial court has observed that the statement of respondent no. 1 was recorded which is produced at Ex. 36, but signature of the accused was not taken. Learned APP has also drawn my attention that the statement of respondent no. 2 is also produced at Ex. 48 and same scenario is repeated by the Investigating Agency. It is true that the Investigating Officer has not obtained the signatures of both the respondents as well as the Officers of the School, like Principal, etc. It is also on record that the Investigating Agency has not called for the hand writing expert's opinion. The document at Ex. 43 is the main document and as per the say of the prosecution, it was forged by the present respondents, but Investigating Agency has failed to investigate into the said aspect. It is pertinent to note that when Ex. 43 which was in possession of the Head Master of the school, CR.A/783/1994 5/6 JUDGMENT how, it has come in the possession of respondents no. 1 and 2. It also appears at this juncture that the school management is at negligence and has not prepared any arrest panchnama and how respondents were arrested is also not on record. The panch did not support to the panchnama and panchnama was not proved by the prosecution. So far as sec. 188 of IPC is concerned, just to prove the said version, the prosecution has examined the witness Harish Jadav PW-10 Ex. 46, but he never bothered to inquire or verify any papers with regard to the notification and he has no knowledge regarding publication of the notification. Therefore, from the judgment itself and the evidence produced before the trial court, the prosecution has failed to prove its case beyond reasonable doubt. In my view, therefore, there is no substance in the appeal. 6. It is settled legal position that in acquittal Appeal, the Appellate Court is not required to re-write the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial court while acquitting the respondents – accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned Judgment is just, legal and proper and requires CR.A/783/1994 6/6 JUDGMENT no interference by this Court at this stage. Hence, this Appeal requires to be dismissed. 7. In the result, the Appeal is hereby dismissed. The impugned judgment and order dated 9.5.1994 passed by the learned Judicial Magistrate First Class, Bagsara in Criminal Case No. 267/1992 acquitting the respondents – accused, is hereby confirmed. (Z.K. SAIYED, J.) mandora/