•Y'VY.-- - CF0000063566 IN THE HIGPT COURT OF JUDICATURE AT JABALPUR. APPLICANT APPELLANT .^Mtsc.^rITCase ^o, €^~oW~7^ Cri.Appeal Ho. \\\^ /99-.'^®c-<^ ; State of Madhya Pradesh through S.H.O, Sonhat,Distt,Korea. -versus- NONlAmIC^NTS '' E1. Mahendranath s/o Prem Shanker, aged €-2. Sitaram S/o Jiyutram,aged about 45 years, ^s ^".^ ^^.^ ^' /y/'" ^ < .^p^'/' ^ .^-•^\ ^ ^^ t 5. Aawarulhaq s/o Mohd«Ishaq,aged about 36years, ^ 4. Durgaprasad s/o Radhyashyam, aged 55 years, J^ ,^5. Neelkanth s/o Shridhar Kulkarni, aged, ^r,.y <^%>- ^- ^ ^ X^^/^l^6' All resident of village Baikynthpur, .^:,t ^'a^ c6~) ^^ Police Station Baikunthpur,Distt,.Korea,MP. APSLICATION FOR GRANT OF LEAVE TOAPPEAL U/S 578(iii) CRIMINAL PROCEDURE CODE/APPEAL U/S 578(i) Cr.P.C. -^^^ M < • v> HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) CRIMINAL APPEAL No. 1114/2000 APPELLANT State of Madhya Pradesh VERSUS RESPONDENTS Mahendranath and others. Shri Akhil Mishra Dy. GA for the appeliant/State. Shri A.K. Prasad counsel for the respondent No.1 Shri A.N. Pandey counsel for respondent No.2. Shri Mahendra Dubey counsel for respondents 3 and 4. APPEAL UNDER SECT10N 378 (1) OF THE GODE OP CRIWIINAL PROCEDURE. JUDGIVIENT (21.04.2010) This appeal has been filed against the impugned judgment dated 10.5.1999 passed by Chief Judicial Magistrate, Baikunthpur, in Crimtnai Case No. 36/1986 acquitting the respondents/accused of the offence punishable under Sections 420,409, 468.471-A and 120-B IPC. 2. Brief facte of the case are that under the scheme introduced by State Government commonly known as integrated Rural Development Programme (IRDP for short) two milldng animals (cow and/or bufFalo) Were to be distributed to the beneficiaries. Further case ofthe prosecution is thatthough on paper, number of beneficiaries have been shown to have received the milking animals but in fact they haye not received thesame. tt is stated that on the arrival of Prime Minister in the area, some complaint was made to him. Subsequently, an enquiry was directed to be conducted byAssistant Director.Agriculture namely Bhairon Prasad Khare (PW-11). In the enquiry, it was found that number of benefidaries have not received the milking animals and thereby respondents/accused have committedan offence under various sections. Further case of the prosecution is that at the relevant time respondent No.1 Mahendranath was the Branch Manager ofthe Regional Rural Bank, respondent No.2 - Sitaram was the Gram Sewak under the Agriculture Department and respondente 3 and 4 were the villagers acting as mediators. In some of the cases r^pondent No.3 was the vendor ofthe animals and deceased/accused - Hansraj was also jnvolved in the commisslon of the offence whereas deceased/respondent No.6 Neelkanth was the Veterinary doctor who had /'e"^ ^SK^^. t • .' ""'•^•^ % .• "^ ^^ ^^ issued the health certificate in respect ofthe milking animals. Itis alleged that during the enquiry conducted by Bhairon Prasad Khare (PW-11), one Nand Kumar Sonpakar (PW-10) did the ph^ical verification ofthe antmals and found that animals were not distributed to the beneficiaries. 3. So as tp hold the accused/respondents guilty the prosecution has examined 15 witnesses. Statements of the respondents/accused were also recorded under Section 313 of the Code of Crimina! Procedure in which they pleaded their innocence and felse implication in the case. 4. After hearing the parties the Court below has acquitted the respondents/accused ofthe charges levelled againstthem. 5. Counsel for.the appellanVState submits that on the basis of material avaiiable on record the Court below ought to have convicted the respondents/accused for the offences mentioned above but having ignored the evidence available on record it has fallen In a grave error of law in awarding acquittal to them. He submits that despite the fact that Bhairon Prasd Khare (PW-11) and Nand Kumar Sonpakar (PW-10) have supported the case of the prosecution, mereiy on the basis of deteiled enquiry conducted by Bhairon Prasad Khare (PW-11) the Court below ought to have convicted the respondents/accused. According to him in a case of mass cheating where number ofvillagers have been cheated and even if the villagers so cheated have not deposed anything against the respondents/accused, merely on that basis they ought not to have been acquitted. He submits that report of the enquiry officer ought to have been given much weight ignoring the other evidence. Hesubmits thatsimilar is the statement of Nand Kumar Sonpakar (PW-10) where after due verification he has stated that the beneficiaries have not receh/ed the milking animais. 6. On the other hand counsel for the respondents/accused support the impugned judgment and submit that in the present case even the complainant namely Ramadhin has not been examined by the prosecution and from the record it is clear that he has not made any complaint whatsoever to anyone on the basis of which the respondents can be prosecuted. From the record it is clear that he has not made any complaint whateoever to anyone on the basls of which the respondente can be prosecuted. It is argued that even the persons who stood surety have not supported the case of the prosecution. It is argued that the enquiry officer namely Bhairon Prasad Khare (PW-11) has admitted that he was not ^1&... 1 ^ -2— legally competent to conduct ttie enquiry and no beneficiary has made any complaint before him. It is argued that the alleged incident is said to have taken place in the year 1982 whereas the FIR has been registered on 30.10.1985 and there is no reasonable explanation for such inordinate delay in making the so called complaint. It is argued that so catled report of Bhairon Prasad Khare is not a part of the charge sheet nor itwas produced before the Court at the time of trial and in the absence of the said report, even if Bhairon Prasad Khare (PW-11) has sated againsltlie respondents/accused, ttiey cannot be convicted. 7. Star witness Bhairon Prasad Khare (RAf-1 T) has stated in his evidence that from 1979 to 29.9.1989 he was working as Assistant Director, Agriculture and was posted at Gramin Vikas /y?hikaran, Ambikapur. He has steted that at the time of visit of the Prime Mjnister, the villagers ofvillage Katgodi had made a complaint and on verificatjon itwas found that 10 beneficiaries had not receivedthe fjret one animal out of Uie two for which they were entitled. This witness had conducted an enquify in which he found that the respondente and other accused persons have committed the offence. This witness has however admitted the fact that he was not the controlling authority as he was not having the charge of that particular area but it was one N.P. Mishra who was having the charge of the said area. This witness has further stated that when he visited the area, no complaint whatsoever was made to him. This wjfriess has however admitted the fact that while giving the loan in favour of the beneficiaries, monitoring card was prepared in four copies - one for the beneficiaries, one for Block Development Officer, oneto be kept by Bank Manager and one to be kept in the office record of DRDA. He has stated that during enquiry ttiough the monitoring card was demanded by him. the same was not given to him. This witness has further admitted that he was directed by the Chief Executive OfRcerto conductthe enquiry but no such order has been filed or produced by him at the time of trial nor the same \ has been proved. Thus the very basis regarding authorization of Shri Bhairon Prasad Khare to conduct the enqulry is missing in the case in \ hand. This witness has alsoadmitted the factthatatthetimeofenquiryhe had recorded the statements of various persons but names of those persons have not been shown along wth the challan nor copy ofthe same has been filed with it. Similar is the position with the statement of Nand Kumar Sonpakar (PW-10) in which he has explained the part of the procedure. This witness has however admitted that no complalnt was made to him by any of the benefidaries and no communication has been / \ -£/- made from the ofRce of ttie BIock Development Officer. Since th@ complainant has not supported the case of the prosecution and has been declared hostlle, there remains nothing but for the statement of Bhairon Prasad Khare (PW-11) who had made the enquiry against the accused/respondents. The trial Court has considered the entjre case of the prosecution and passed thejudgment of acquittal having appreciated the evidence avaiiable on record. 8. Thus after going through the material available on record and being very much consdous of the existing legal position that in an appeal against acquittal if two views are possible on the basis of evidence led by the complainant and the trial Court taking one view favoured the accused, this Court is of the considered opinion that reversion of the findings of acquittal by the appeliate Court taking the other possibte view Snto consideration, is not permissible in law and therefore tihe judgment impugned acquitting the respondents /accused of the offences under Sections 420,409,468.471-A and 120-B IPC, is just and proper and does not warrant any interference by this Court. Accordingly, the appeal being without substance is liable to be dismissed and it is dismissed as such. Sd/- Pritinker Diwaker Judge q--•^