State of Madhya Pradesh (Now State of Chhattisgarh) Vs. Govind Dewan JUDGMENT @ HIGH COURT OF CHHATTISGARH, BILASPUR (Sinqle Bench: Hon’ble Shri Sunil Kumar Sinha, J) Post for Judgment : 12/201 0 f Stir," Sunil Kumar Sinha Judge Criminal Apgeal No. 647 of 1991 @ HIGH COURT OF CHHATTISGARH, BILASPUR (Sinqle Bench: Hon’ble Shri Sunil Kumar Sinha, J) . Criminal Appeal No. 647 of 1991 APPELLANT State of Madhya Pradesh (Now State of Chhattisgarh) Versus RESPONDENT Govind Dewan S/o Tahal Dewan, Aged Accused 23 years, R/o Sindhi Colony, Gali No. 3 Lalbag, Rajnandgaon, Tehsil & District Rajnandgaon, . M.P. (Now Chhattisgarh) (Appeal under Section 378 (1) of The Code of Criminal Procedure, 1973) Appearance: . Mr.,S.K. Mishra, Panel Lawyer forthe appellant/State. None for the respondent. JUDGMENT (14.12.2010) Sunil Kumar Sinha, J. (1) Being aggrieved with the judgment of acquittal dated 10‘“ of September, 1990 passed in Criminal Case No. 2092/88 by the Chief Judicial Magistrate, Rajnandgaon, the State has preferred this appeal. By the impugned judgment, the respondent has been acquitted of the charges framed u/ss 408, 420, 468 & 471 of the IPC. /’\' i \ (2) The facts, briefly stated, are as under:- Respondent— Govind Dewan was working as a Clerk in State Bank of India, Agricultural Development Branch, Lalbag. The / 2 w Criminal Agpeal No. 647 of 1991 allegations are that when he was in possessions of Money Transer Forms (M.T. Forms), he committed theft of M.T. Form, forged it by tilling an amount of Rs.2,63,000/— on the name of his brother Tarachand Vaswani (PW—1) and thereafter with a forged covering letter of the concerned officer sent them to MLA Rest House. Branch of State Bank of India, Bhopal by registered post. On the strength of that deposit in the account of Tarachand Vaswani (PW- 1) at Bhopal Branch, one draft in favour of Rajnandgaon was issued on 18.8.86 on the name of Tarachand Vaswani (PW-1). It was found that the said draft was deposited in S.B. A/c No. 14/T/5044 of Tarachand Vaswani on 208.86., Thereafter Rs.60,000/— Vide cheque'No. 842105 dated 6.9.86; Rs.35,000/— Vide cheque No. 842106 dated 12.9.86 and Rs.1,05,000/— Vide cheque No. 842106 dated 16.9.86 were withdrawn. The above amounts were allegedly received by respondent— Govind Dewan. Govind Dewan was on duty on 4.8.86 of issuance of security forms which includes M.T. Forms. As such he had occasion to commit ~ theft of one Form. The matter came into the notice of the concerned authority when the forged M.T. Form' (No. MW 001243) was missing. In further inquiry, it was found that the draft deposited was also missing from Rajnandgaon Branch. However, the corresponding advise was available at the Branch record. This raised strong suspicion against the respondent/accused, therefore, a written report (Ex.-P/8) was sent to the concerned police station by Branch Manager of Rajnandgaon Branch. Various documents were seized by the Investigating Officer. Specimen hand writing of the respondent/accusedand the questioned document along with specimen hand writing of the respondent/accused were sent for their expert examination. The State Examiner‘of Questioned Documents, Bhopal gave his opinion on 30.7.88. After completion of usual investigation, the charge-sheet was tiled against the respondent/accused alone. The respondent was charged u/ss 408, 420, 468 & 471 of the‘IPC. The learned Magistrate, after completion of the trial, found that the prosecution failed to establish a? 3 3? Criminal Appeal No. 647 of 1991 the guilt of the respondent, therefore, the respondent was acquitted of the charges framed against him. (3) Mr. S.K. Mishra, Iearned Panel Lawyer appearing on behalf of the appellant/State, argued that the Iearned Magistrate erred in Iaw in passing the judgment of acquittai in favour of the respondent. There was ample evidence on- record to hold that the respondent/accused was liable for punishment under the aforementioned Sections of IPC. (4) l have heard the learned counsel for the State/appellant at length ’and have also perused the records of the criminal case. »\/ . (5) Out of several witnesses cited by the prosecution, the prosecution could examine only 5 witnesses namely Tarachand Vaswani (PW-1), Iqbal (PW-2), Alok (PW-3), Laichand (PWA) and Dr. R.L. Nagendra (PW- 5). (6) The learned Magistrate has regretfully observed that even after giving several opportunities to the prosecution, the prosecution could not produce important witnesses and only formal witnesses could be examined. The Magistrate has recorded a finding that on theevidence of Dr. R.L. Nagendra (PW-5) who was Branch Manager, Iqbal (PW—2) and Lalchand (PW-4 ), it was only established that at the relevant time, the respondent/accused was working as a Clerk in the said Branch of Rajnandgaon. On due appreciation of their evidence, the Magistrate has come to the conclusion that only on the basis of the fact that at one point of time, the respondent/accusedgwas in charge M.T. Forms in the concerned Bank, it cannot be held that he committed theft of M.T. Form 4 @ Criminal Appeal No. 647 of 1991 and forged it in the above manner. Dr. R.L. Nagendra (PW-5)’who was the Branch Manager of the concerned Branch, has stated that on 4.8.86, the respondent/accused was in possession of Security Forms and M.T. Forms, therefore, a suspicion arises against the respondent that he must have committed the theft. The learned Magistrate has appreciated the evidence of Dr. R.L. Nagendra (PW—5) in Iight of the evidence of Iqbal ~ (PW-4). Iqbal was working as an Accountant in Rajnandgoan Branch. He has taken that charge on 4.8.86. He deposed in Para-5 of his evidence that M.T. Forms Book was in his possession on 9.8.86 also and on 9.8.86, he had issued the M.T. Forms Book containing Form No. 001234 to 001250 to Mr. Uikey (another employee of the Bank). He further admitted that Uikey on the same date had also returned the Forms. (.7) ‘The learned Magistrate has also observed that neither Investigating Officer was examined nor the hand writing expert was examined to prove the hand writing of the questioned documents. Even the F.I.R. or important police papers were not proved. It is on all this account, the learned Magistrate held that the prosecution utterly failed to prove the guilty of the respondent/accused and the respondent/accused was entitled for acquittal in the matter. (8) In Budh 'Singh and others —Vs.- State of U.P. (2006) 9 SCC 731, the Supreme Court held vide para 9, that in a matter of appeal against acquittal, the High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidence on record 5 Criminal Appeal No. 647 of 1991 so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainabie. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissibie evidence and has taken into consideration evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny of‘the Appellate Court. (9) ln V.N. Ratheesh —Vs.- State of Kerala, AIR 2006 SC 2667, the Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal.._The Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused shOuId be adopted. The Supreme CoUrt further said that the paramount consideration of the Court is to ensure that miscarriage of jUStice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored. a duty is cast upon the Appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to a whether any of the accused really committed any offence or not. The Supreme Court referred to the decision rendered in the matter of Bhagwan Singh and others —Vs.- State of Madhya Pradesh (2002 (2) ' 6 $ Criminal Appeal No. 647 of 1991 Supreme 567). It was further held that the principle to be followed by Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. lf the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustinably eliminated in the process, it is a compelling reason for interference. (10) ln Rame'sh Babulal Doshi -—Vs- State of Guiarat (1996) 9 SCC 225, the Supreme Court said that “While sitting in judgment over an acquittalthe appellate court is hrst required to seek an answer to the question whether the nndings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to‘be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above intirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions”. (1'1) l have gone through the entire evidence on record with a view to tind out as to whether the views of the learned Magistrate were perverse or othenivise unsustainable. After going through the entire evidence available on record, l do not find any compelling and substantial reasons to interfere with the judgment of acquittal. It is not a case in which the judgment may be said to be unreasonable or a case in which releyant ” and convihcing materials have been eliminated‘ in th‘e process of appreciation. Suspension how so strong can not take the place of proof. The learned Magistrate has taken this view and has acquitted the i