IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.29 of 2001 (Old No.60 of 1998) Geeta Devi …….….…. Appellant Versus 1. Dr. (Smt.) Asha Rawal 2. The State …………… Respondents Dated: April 29, 2010 Ms. G.S. Negi, learned amicus curiae for the appellant Mrs. Monika Pant, Adv. i/b Mr. Arvind Vashisth, Adv. for respondent no.1 Mr. Amit Bhatt, learned Addl. GA for the State/respondent no.2 HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 378(4) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 25.05.1998 passed by the Additional CJM- I, Dehradun in Case No.129 of 1998, Geeta Devi Vs. Smt. Asha Rawal, whereby the learned Magistrate has acquitted the respondent no.1 for the charge levelled against her under Section 420 of The Indian Penal Code, 1960 (hereinafter to be referred as IPC). 2. I have heard learned counsel for the parties and perused the entire material on record. 3. In brief, the facts of the case are that the appellant/complainant filed a complaint in the court of Addl. CJM, Dehradun-I with the averments that the respondent-Asha Rawal, as per the willingness of her husband Suraj Prakash Rawal, agreed to sell the property at 34 Ghosi Gali, Dehradun in favour of complainant/ appellant for Rs.1.60 lacs for which the complainant paid Rs.5,000/- in advance and Rs.30,000/- by way of cheque dated 28.3.1985 of Commercial Bank, Dehradun to the respondent/accused and her husband. After that the 2 appellant/complainant again gave two cheques, one dated 23.11.1985 of Rs.40,000/- and another cheque dated 5.2.1987 for Rs.30,000/- both of Canara Bank, Dehradun. The respondent and her husband (Suraj Prakash Rawal) also assured the appellant/complainant to transfer the property in her favour after the settlement of dispute of Nazul and other formalities. After that the complainant also constructed a wall over the said property. However, on 14.1.1991, husband of the respondent had died and then the respondent became the owner of that property. After that on 1.11.1992, on the assurance of the respondent for transferring the possession and executing the sale deed within 15 days, the appellant-complainant gave Rs.40,000/- in cash to the respondent. Thereafter, in the month of May, 1995, the respondent demolished the wall constructed by the appellant over the said land. On 7.6.1995 when the appellant/complainant went in the house of respondent and asked her to execute the sale deed in her favour, then the respondent and her father committed Marpit with her and further threatened to her life and also warned not to talk about the property in dispute in future. The respondent further stated that she would not refund the money nor would execute the sale deed. It was further stated that the respondent had taken the money by giving false assurance to her and also by fraud. This complaint was filed on 13.6.1995. 4. After that the statement of the complainant/ appellant was recorded on 13.6.1995 u/s 200Cr.P.C. The statements of witnesses Ratan Singh and Narendra Gupta were also recorded u/s 202 Cr.P.C. Thereafter, the respondent was summoned by the court u/s 204 Cr.P.C. for the offence punishable u/s 420 I.P.C. 5. After that the statement of complainant/ appellant was recorded u/s 244 Cr.P.C. and the charge was framed against the respondent on 29.8.1997 u/s 420 3 I.P.C., which was read over and explained to her to which she pleaded not guilty and claimed to be tried. 6. After that the prosecution witnesses were called for the cross-examination and the complainant Geeta Devi was examined as PW1 and the evidence of other witnesses were also recorded as PW2 Narendra Gupta, PW3 Ratan Singh and PW4 A.K. Asthana as provided u/s 246 Cr.P.C. 7. Thereafter, the statement of the respondent/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to her in question form, who denied the allegations levelled against her and stated that the receipts filed by the complainant/appellant are fabricated, forged and fictitious and neither she nor her husband had signed on the said receipts. 8. After hearing counsel for the parties and appreciating the material on record, learned Addl. CJM, Dehradun vide judgment and order dated 25.5.1998 acquitted the respondent u/s 420 I.P.C., against which the appellant has come up in appeal. 9. To prove its case, the prosecution has examined PW1 Smt. Geeta Devi, who has reiterated the version of the complaint. In the cross-examination, she stated that the stamp paper was only signed by Dr. Suraj Prakash and Dr. Asha Rawal/respondent no.1 had not signed on that stamp paper. She further stated that the Cheques were issued in the name of Dr. Suraj Prakash only and no cheque was issued in the name of the respondent/Asha Rawal. She further stated that the amount of Rs.40,000/- given to the respondent/Asha Rawal was not drawn from the bank rather she took the same from her husband and from where her husband had brought that money, she had no knowledge. She further stated that Rs.5,000/-, which were given to Dr. Suraj Prakash in cash, was also borrowed 4 from someone. She further stated that the document Ex.Ka-2 was given by Dr Suraj Prakash after typing and signature. 10. P.W.2 Narendra Gupta has also supported the statement of PW1 Geeta Devi and in cross-examination, he stated that incident of Marpit had not occurred before him. The payment was paid to Dr. Suraj Prakash by the year 1987. Since 1987 to 1992, no document was signed in between that period. He further stated that the agreement was executed but that was not registered. He further stated that amount of Rs.40,000/- was given by his wife from her own income and his wife does the work of sewing at 50 Paltan Bazaar/Meena Bazaar, from where his wife earns about Rs.2,000-2500 per month. 11. P.W.3 Ratan Singh, who stated that he along with Geeta Devi had gone in the clinic of Dr. Asha Rawal in May-June, 1995 where Dr. Asha Rawal stated that she had neither sold any asset nor she intends to sell in future. In cross-examination he stated that he is employed as salesman in the shop of husband of Geeta Devi since last 20-25 years. 12. P.W.4. A.K. Astahana, who has proved the letter Ex.Ka-3 i.e. the reply given to Geeta Devi about the payment of cheques in favour of S.P. Rawal (husband of respondent). 13. Thereafter, the statement of the respondent/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to her in question form, who denied the allegations levelled against her and stated that the receipts filed by the complainant/appellant are fabricated, forged and fictitious and neither she nor her husband had signed on the said receipts. 5 14. Learned amicus curiae for the appellant argued that the complainant has proved her case against the respondent but the trial court has not appreciated the evidence and the judgment and order passed by the trial court is not correct and justified. I do not find any substance in the argument put forth on behalf of the appellant due to the following reasons: - A. That three cheques (1) dated 28.3.1985 Rs.30,000/- (2) dated 23.11.1985 Rs.40,000/- and (3) dated 5.2.1987 Rs.30,000/- was given to Dr. Suraj Prakash Rawal and Rs.5,000/- was shown to be given in cash by the complainant. In this way, a sum of Rs.1.05 lacs was shown to be given by the appellant/complainant to Dr. Suraj Prakash Rawal, who died on 14.1.1991. The present transaction shown to be executed by the accused/ respondent no.1-Asha Rawal is Rs.40,000/- in cash for which the receipt Ex.Ka-2 was filed in evidence. However, the signatures over the said receipt have specifically and categorically been denied by the respondent Asha Rawal in her statement recorded u/s 313 Cr.P.C. and she has stated that she had not signed on that receipt nor her signatures are there over that receipt. Even the signatures made on the said receipt were not sent to the handwriting expert for the expert opinion whether those signatures were actually made by the respondent no.1 or not. In this way, the prosecution has not proved beyond reasonable doubt that the receipt Ex.Ka-2 was signed by the respondent-Asha Rawal and it also could not be proved that she received Rs.40,000/- in cash. B. That the complainant has stated in her statement that she had took the money of Rs.40,000/- from her husband, however the complainant’s husband, namely, Narendra Gupta, who was examined as PW2, has stated 6 in his cross-examination that the said money of Rs.40,000/- was given by his wife from her own income which she earned by way of sewing. These facts also create reasonable doubt about the testimony of PW1 Smt. Geeta Devi that she actually paid Rs.40,000/- in cash to the respondent-Asha Rawal on 1.11.1992 for purchasing the property in question. C. That besides the above, it is settled law that where two views are possible and one of the views is possible which was taken by the trial court, then the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance is placed on para 7 of the judgment rendered by Hon’ble Supreme Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which reads as under: - “The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible.” 15. On the basis of the evidence discussed above, I am of the considered view that when one view is also possible which was taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the interference with the judgment of the trial court at this stage is not warranted. Therefore, there is no reason to disagree with the view taken by the trial court on the basis of the evidence discussed above and, as such, the 7 complainant has not able to prove its case against the respondent/accused beyond reasonable doubt. 16. For the reasons as recorded above and in view of the facts and circumstances of the case, there is no evidence that the respondent/accused had executed any agreement in favour of the appellant/complainant or she received any money from the complainant for the sale of that property and even there is no evidence except the statement of the complainant herself, that she was beaten by the respondent/accused. Thus, I feel convinced that the trial court was correct and justified in acquitting the respondent-accused for the charge leveled against her u/s 420 IPC. 17. Therefore, the appeal preferred by the complainant/appellant is devoid of merits and is accordingly dismissed. The judgment and order dated 25.05.1998 passed by learned Addl. CJM, Dehradun in Case No.129/1998, Geeta Devi Vs. Asha Rawal, is accordingly made affirmed. (Dharam Veer, J.) April 29, 2010 Rajeev Dang