2. revn 431-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION REVISION APPLICATION NO. 431 OF 2010 Tarun B. Patwa .. Applicant Vs The State of Maharashtra & Ors .. Respondent Mr. Sanjay P. Kadam for the Applicant Mr. H.J. Dedhia, APP for the State CORAM : D.D. SINHA AND SMT. V.K. TAHILRAMANI, JJ DATE : 23rd NOVEMBER, 2010. P.C.: 1. Heard the learned counsel for the applicant-original complainant and the learned Additional Public Prosecutor for the State. 2. The Revision is directed against the judgment and order of acquittal dated 30.06.2009 passed by the Additional Metropolitan Magistrate, Mumbai whereby the original accused came to be acquitted for the offences punishable under Sections 406, 420, 465, 467, 468 and 477A of IPC. Learned counsel for the complainant has submitted that the accused Mr. Shah was working as an accountant with the complainant PW 1 Tarun who was the proprietor of the companies in question. 1 2. revn 431-10.doc It is contended that his wife Sandhya PW 2 was also the proprietor of the companies. It is the case of the complainant that Mr. Shah while working as an accountant between 1993 to 1996 alleged to have committed the offences punishable under above referred Sections. It is submitted that the questionable transactions pertain to the cheques in question are reflected in paras 3, 4 and 5 of the deposition of PW 1 Tarun - original complainant, the proprietor of the companies. It is contended that the evidence of PW 2 Sandhya, wife of the complainant corroborates the material particulars of the prosecution case disclosed by PW 1. Similarly, the evidence of PW 3 Jayant and PW 4 Chandrakant is also consistent with the material particulars of the prosecution case disclosed by PW 1 and PW 2. The learned counsel for the complainant has submitted that the trial Court did not consider the substantive evidence adduced by the prosecution and wrongly acquitted the accused for the offences charged. 3. It is further contended that apart from the naure of evidence adduced by the prosecution, the grievance of the complainant is that the prosecution deliberately did not examine the material witnesses such as Sanjay Desai, Modi, Desai and Joshi etc. It is further submitted that, not examining the material witnesses demonstrates that the 2 2. revn 431-10.doc investigation conducted by the Investigating Officer was with a oblique motive, to give benefit to the accused. The learned counsel for the complainant,therefore, contended that the order impugned is unsustainable in law and liable to be quashed and set aside. 4. The learned Additional Public Prosecutor supported the impugned order and has submitted that the same is based on the evidence adduced by the prosecution. The Additional Public Prosecutor though did not disagree with the contentions canvassed by the learned counsel for the complainant, however, has submitted that finding of acquittal is based on the evidence available on record. 5. We have considered the contentions canvassed by the respective advocates. In the instant case,it is the case of the complainant that questionable transactions had taken place between 1993 to 1996. It is not in dispute that the audit of the company was carried out by the auditor every year. It is also not in dispute that during the said period, in spite of audit conducted by the auditor, the complainant did not lodge any complaint for commission of the alleged offences against Mr. Shah and for the first time, lodged the compliant in the year 1999. It is also not in dispute that Mr. Shah worked as an accountant with the complainant from 3 2. revn 431-10.doc 1993 to 1996 and resigned from the post in the year 1996. However, the complainant continued him to act as a consultant for a period of two to three years thereafter. So far as the evidence of the complainant-PW 1, his wife PW 2 Sandhya and other witnesses examined by the prosecution is concerned, the findings recorded by the trial Court are in para 22 of the judgment, which in our view, are just and proper and are sustainable in law which reads thus: "It is essential on the part of the prosecution to prove forgery by showing the accused made false documents etc to receive any money by intending that the documents forged shall be used for the purpose of cheating. Moreover, to attract the offence punishable under Section 420 of IPC dishonestly inducing to deliver property and intention to cheat since inception with mens rea are essential. For the offence punishable under Section 406 IPC entrustment of the property is essential so as to hold the accused guilty for dishonestly misappropriating or converting his own use that property. For the offence punishable under Section 477 A, there must be falsification of accounts showing that accused destroyed, altered the books, paper or writing while working as clerk, officer or servant and there must be willful act of destruction with intent to defraud." 6. So far as the other arguments of learned counsel for the complainant regarding not examining the material witnesses by the prosecution is concerned, it is not in 4 2. revn 431-10.doc dispute that their statements which were recorded during the investigation, show that it refers to the transaction which alleged to have taken place after 1996 onwards and therefore, same were not relevant for the purpose of proving the charge against the accused for the offences which pertain to the period commencing from 1993 to 1996. 7. In the circumstances, no case is made out for showing indulgence. Revision application is rejected. [ D. D. SINHA, J ] [SMT. V.K. TAHILRAMANI, J.] 5 2. revn 431-10.doc 6