1 crap2813.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2813 OF 2010 Manohardas Baba Shikshan Prasarak Mandal ...Applicant VERSUS The State of Maharashtra & ors. ...Respondents ..... Shri K.M.Nagarkar, advocate for the applicant Smt. Y.M.Kshirsagar, A.P.P. for respondent no.1 Shri R.L.Kute, advocate for respondent nos. 2 and 3. ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 25 th March, 2011 PER COURT : 1 Heard the learned counsel for the respective parties. 2 This is an application, preferred by the applicant, seeking leave to file appeal, challenging the judgment and order of acquittal, dated 6.3.2010, rendered by the learned 4 th Joint Civil Judge, Junior Division and Judicial Magistrate, First Class, Sangamner, in R.T.C. No. 132 of 2003, thereby acquitting respondent nos. 2 and 3 for the offences punishable 2 crap2813.10 under Section 379 r/w Section 34 of the Indian Penal Code. 3 I have perused the R. and P. and the impugned judgment and order dated 6.3.2010 with the assistance of the learned counsel for the parties. 4 It is the case of the complainant that accused no.1 was the Head Master of the School of the complainant/institution in the year 1999-2000 and accused no.2 was appointed as temporary teacher for the said year. However, it is the contention of the complainant that thereafter respondent nos. 1 and 2 had no relations with the complainant/institution. Hence, since accused nos. 1 and 2 were not continued on their respective posts, they had grudge in their mind, and hence, in furtherance of their common intention, on 4.6.2000 at about 7.00 p.m., accused nos. 1 and 2 broke opened the lock of the office of the complainant/institution and committed theft of the documents and amount of Rs.500/- from the cash box from the office of the complainant. It is the contention of the complainant that thereafter the complainant lodged the complaint with the police station, but police personnel did not take cognizance, and hence, the complainant filed the present private complaint on 6.7.2000. 5 To substantiate the charges levelled against accused nos. 1 and 2, the complainant examined two witnesses i.e. PW1 Raosaheb Nannaware and PW2 Vilas Borade; whereas the accused did not examine themselves nor examined any witness on their behalf, but put forth their defence through the cross-examination of the complainant’s witnesses, as 3 crap2813.10 well as their statements recorded under Sections 313 of the Code of Criminal Procedure. 6 At the out set, although the alleged incident occurred on 4.6.2000, the present complaint came to be filed by the complainant on 6.7.2000 i.e. after the lapse of about one month and 2 days, but the complainant has not given any plausible and convincing explanation in that respect. In the said context, it is the contention of the complainant that the complainant lodged the complaint with the Police Inspector, Sangamner on 5.6.2000, but after going through the contents of the complaint, it is curious to note that there is no reference of the alleged theft on 4.6.2000 in the said complaint dated 5.6.2000. In the natural course of events, had the alleged theft been taken place on 4.6.2000, then there would have been certainly reference thereof in the complaint filed by the complainant on the very next day i.e. 5.6.2000, but such a reference is not there in the complaint and the said absence speaks volumes for itself. 7 In the said context, it is also the contention of the complainant that the complainant filed the complaint with the Police Inspector, Sangamner on 17.6.2000 in respect of breaking open the lock of the office of the complainant/institution on 4.6.2000 by the accused. However, on perusal of the contents of the said complaint, although there is mention of alleged breaking open of lock, but there is no mention of the names of the accused that the accused broke opened the said lock, as well as there is no mention of alleged theft by the accused in the said complaint, and the said discrepancies also hamper the case of the complainant. 4 crap2813.10 8 In substance, the complainant has failed to give proper and convincing explanation for the said delay of almost about 1 month and 2 days and the said unexplained delay hampers the case of the complainant. 9 Moreover, PW1 Raosaheb Nannaware admitted in his cross- examination that the office of the complainant/institution is in the space of Grampanchayat near Maruti tample and there are two Industries of manufacturing of Bidis, as well as there is one hotel of Lahanu Shinde and Khandu Jedgule near the said temple, as well as there is one shop of Nana Shinde, as well as there is one stage in front of Maruti temple where 5-50 worshipers sit for worship. Keeping in mind the said aspect and coming to the complaint of the complainant, the time of the alleged theft given is of 7.00 p.m., but the complainant has not examined any independent witness, although there used to be 5-50 worshipers and there were hotel, shop and Bidi Industries, etc. as mentioned herein above, and therefore, the occurrence of the incident as alleged by the complainant itself comes under the cloud of suspicion. 10 As regards the testimony of PW2 Vilas Borade, he has admitted in his cross-examination that all the documents of the complainant/institution are kept in the custody of the Head Master and he also was the Head Master of the said institution for some time and he further admitted that he has cordial relations with PW2 Raosaheb Nannaware, who is the President of the said institution, and hence also, 5 crap2813.10 the said testimony of PW2 Vilas Borade appears to be the testimony of interested witness, and therefore, same is required to be viewed with great care and caution. 11 Apart from that, it has come on record that the disputes between both the parties are pending before the Charity Commissioner, and therefore, possibility cannot be ruled out of filing the present false complaint against the accused by the complainant out of the said rivalry. 12 In the circumstances, considering totality of the matter, the view adopted by the Trial Court after scrutinizing and assessing the evidence on record while acquitting the accused persons appears to be a possible view and same does not appear to be perverse and the reasoning given thereof cannot be faulted with, and hence, no interference therein is warranted in the appellate jurisdiction, and consequently, present application deserves to be rejected. 13 In the result, present application, which is sans merits, stands dismissed and leave to file appeal is refused. R. and P. be sent back to the concerned court, and the present application stands disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap2813.10