CR.A/1230/1997 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1230 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ==================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ==================================================== STATE OF GUJARAT - Appellant(s) Versus DABHI GOVINDJI MASANGJI - Opponent(s) ==================================================== Appearance : MR MR MENGDE, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, ==================================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 19/02/2008 ORAL JUDGMENT By virtue of this appeal under section 378 of the Code of Criminal Procedure, 1973 [hereinafter referred to as 'Cr. P.C.'] the State CR.A/1230/1997 2/13 JUDGMENT of Gujarat has challenged the judgment and order dated 30/9/1997 rendered by the learned Judicial Magistrate First Class, Kalol in Criminal Case No. 134 of 1991. The learned Magistrate by virtue of the impugned judgment and order was pleased to acquit the respondent – accused for the offences punishable under sections 409 and 468 of the Indian Penal Code [IPC]. 2. The case of the prosecution, in nut shell, is that the respondent accused was serving as leave reserved Talati-cum-Secretary at village Serisha, Taluka Kalol from 2/3/1989 to 20/6/1989. That to recover the land revenue, irrigation charges and other chages, etc., are the relevant duties of Talati-cum-Secretary. It is the case of the prosecution that on 4/4/1989 one Masangji Sonaji Thakarda met the accused and paid to the accused Rs.6,952-89 paise; whereupon the accused issued irrigation receipt no. 17779 dated 4/4/1989 in token of receipt of s.6,952-89 paise from said Masangji Sonaji. However, as per the case of the prosecution, in the duplicate receipt as well as triplicate receipt of said original receipt, the accused mentioned only Rs.1,900/- and thereby the accused said to have committed offence of criminal breach of trust and defalcation of Rs.5,052-89 paise and thereby committed offences punishable under sections 409 and 468 of the IPC. Circle Inspector Mr. M A Prajapati, who was direct superior of the accused, paid his inspection visit of village CR.A/1230/1997 3/13 JUDGMENT Serisha on 27/9/1989 and when the Circle Inspector verified relevant records maintained by the accused, he found out the abovestated irregularities. The Circle Inspector reported the incident in writing to Taluka Development Officer [TDO] Laljibhai Hirjibhai. Thereupon the TDO Laljibhai Hirjibhai filed police complaint against the respondent – accused for the above offences. His compliant was registered and the Investigating Officer, during the course of investigation, recorded the statements of witnesses. Ultimately the Investigating Officer filed charge- sheet against the accused in the Court of the learned Magistrate for offences punishable under sections 409 and 468 of the IPC. 2.1. The learned Magistrate framed charge for the offences punishable under sections 409 and 468 of the IPC against the accused. However, the accused did not plead guilty, therefore, the prosecution adduced oral and documentary evidence in this case. 2.2. Testimony of complainant Laljibhai Hirjibhai, who was serving as TDO at the relevant time, was recorded at exh. 6. Circle Inspector Mr. M A Prajapati was examined at exh. 19. Talati-cum- Secretary – Liyakatali Rahematali, who was successor in office of the accused, was examined at exh. 21. The prosecution examined witness Mansang Sonaji at exh. 24. Investigating Officer PSI Lakhabhai Koyabhai Ahir was examined at exh. 32 and Investigating Officer, who CR.A/1230/1997 4/13 JUDGMENT concluded the investigation and filed charge-sheet in the Court of the learned Magistrate, PSI Babarbhai Patel was examined at exh. 34. No more witnesses were examined by the prosecution. During the course of the depositions of complainant TDO Laljibhai Hirjibhai and of Circle Inspector Manibhai Prajapati several documentary evidence was produced by the prosecution. 2.3. After appreciating the oral and documentary evidence on record and after recording further statements of the accused under section 313 of the Cr. P.C., and considering the arguments advanced on behalf of the prosecution and on behalf of the accused, learned Magistrate delivered the impugned judgment and order on 30/9/1997, whereby he was pleased to acquit the accused. 3. On behalf of the appellant – State, learned APP Mr. Mengde submitted that the impugned judgment and order delivered by the learned Magistrate is contrary to law and evidence on record. That the learned Magistrate did not properly appreciate and evaluate the oral and documentary evidence adduced by the prosecution. That it is established not only by the oral evidence, but even by documentary evidence that the accused received Rs.6,952-89 paise from one Masangji Sonaji on 4/4/1989 and original receipt of the aforesaid amount was issued by the accused to said Masangji, but in the duplicate and triplicate receipts only CR.A/1230/1997 5/13 JUDGMENT Rs.1,900/- were shown as received from Masangji Sonaji. That it has come in evidence that subsequently the accused by virtue of Challan deposited only Rs.1,900/- in the Treasury. That it has come in evidence that hand writing and signature in the original receipt as well as duplicate and triplicate receipts are of the accused. That it has been proved beyond reasonable doubt that the accused committed defalcation and criminal breach of trust to the tune of Rs.5,052-89 paise. Despite such cogent and convincing evidence on record, the learned Magistrate erred in discarding such evidence and acquitting the accused. That learned Magistrate committed serious error in holding that the prosecution failed to prove its case against the accused because the disputed documents were not sent to hand-writing expert. That in fact it was not at all necessary and even legally it is not required. That despite the fact that there is sufficient evidence on record regarding entrustment of aforesaid amount by the witness Masangji to the accused, yet the learned Magistrate erred in holding that the prosecution failed to prove the entrustment. Therefore, it was submitted that the appeal be allowed and the impugned judgment and order passed by the learned Magistrate be set aside and the respondent – accused be appropriately punished for the offences punishable under sections 409 and 468 of the IPC in accordance with law. 4. Now before the evidence adduced by the prosecution in this CR.A/1230/1997 6/13 JUDGMENT case is considered in light of the reasonings assigned by the learned Magistrate in the impugned judgment and order, it would be necessary to note that it is well settled that though the appellate Court in an appeal under section 378 of the Cr. P.C., can reappreciate and re-evaluate the evidence adduced by the prosecution, but if the appellate Court finds that the trial Court committed irregularity or any error in not properly appreciating the evidence on record or that the judgment is perverse or suffering from any legal bar or irregularity, then only the appellate Court can interfere with the judgment and order recording acquittal of the accused passed by the trial Court. It is also well settled that if two views are possible, one pointing to the guilt of the accused and other pointing to the innocence of the accused, then the view favourable to the accused should be considered by the appellate Court while dealing with such appeal. 5. In light of the above background, if the evidence adduced by the prosecution in this case is reappreciated or re-evaluated, then it becomes clear that the learned Magistrate did not commit any error while appreciating the evidence on record adduced by the prosecution to come to the conclusion that the prosecution failed to prove beyond reasonable doubt its case against the accused. In the well reasoned judgment delivered by the trial Court, taking into consideration not only the oral CR.A/1230/1997 7/13 JUDGMENT but even documentary evidence adduced by the prosecution and assigning cogent and convincing reasons, the learned Magistrate, came to the above conclusion. Briefly considering the reasons assigned by the learned Magistrate in his judgment, it clearly transpires that the learned Magistrate did not find the deposition of the complainant TDO Laljibhai Hirjibhai inspiring confidence about the case of the prosecution. Admittedly, complainant Laljibhai Hirjibhai, who was serving as TDO at the relevant time, cannot be said to have any personal knowledge regarding the offence. He came to know about the irregularities committed by the Talati-cum-Secretary, the present accused only when he received report in writing from Circle Inspector Mr. M A Prajapati. Along with the report of the Circle Inspector, he received the disputed original receipt and duplicate and triplicate receipts. Circle Inspector sent along with his report, the statement of Masangji Sonaji. On the basis of such papers, the TDO filed the criminal complaint before the police against the accused. However, it has come in evidence that along with the complaint, the complainant Laljibhai Hirjibhai did not produce any single document before the police but the entire documentary evidence produced by the prosecution was produced only during the course of trial of this case before the learned Magistrate. Even during the course of investigation, none out of two Investigating Officers recovered any CR.A/1230/1997 8/13 JUDGMENT document. 6. Complainant Laljibhai Patel, the TDO, during the course of his deposition, admitted that after he lodged FIR against the accused before the police, the police officer did not record his statement. He also admitted in his deposition that so far as the documentary evidence which he produced before the trial Court during the course of his deposition was produced for the first time in this case and he had not supplied any documentary evidence to the police nor the police asked him to produce any papers along with his complaint. 7. Considering the deposition of Circle Inspector Mr. Manibhai Prajapati exh. 19, he deposed that he visited village Serisha on 27/9/1989 and verified the record maintained by the accused. During the course of his inspection, he verified that the aforesaid irregularities were committed by the accused. The Circle Inspector collected the original receipt said to have issued by accused to Masangji Sonaji as well as duplicate and triplicate receipts. He recorded statement of said Masangji Sonaji. He also seized copy of Challan whereby Rs.1,900/- were deposited in the Treasury. He also admitted in his deposition that when the police recorded his statement, neither he produced any documentary evidence including the statement of Masangji which he had recorded nor the police asked him to produce any such documentary evidence. He further CR.A/1230/1997 9/13 JUDGMENT admitted that at the time when he seized the aforesaid record, at that time no panchnama was drawn nor any report was prepared. He admitted that he recorded the statement of Masangji Sonaji only for the purpose of his safety. 7.1. The prosecution examined witness Liyakatali Rahematali at exh. 29, who was successor in office of the respondent accused. As per the prosecution case, respondent – accused was Talati-cum-Secretary at village Serisha from 2/3/1989 to 20/6/1989 and as per the deposition of this witness, he was posted as Talati-cum-Secretary at Serisha from 13/12/1989. During the course of his deposition, he produced the relevant register regarding recovery of irrigation charges for the year 1988-89 wherein according to him, the accused mentioned Rs.1,900/- as recovered from Masangji. However, it is pertinent to note that during the course of his cross-examination, he admitted the suggestion that if Talati has good relation with any party, then Talati may issue receipt showing the full payment or even part payment. He further admitted that as per the office procedure, whenever any agriculturist asks for irrigation facility, at that time Talati verifies as to whether any amount stands outstanding against said agriculturist or not and after recovering the entire dues from such agriculturist, necessary receipt is issued. He further admitted that as per the office practice, the original receipt is issued to the concerned party CR.A/1230/1997 10/13 JUDGMENT and its duplicate and triplicate receipts are maintained in the record of the office. He further admitted that said Masangji Sonaji never complained before him that the accused, who was predecessor in office, had recovered more amount but had issued the receipt showing less amount to Masangji. It is pertinent to note that this witness, during the course of his cross- examination, admitted the fact that there was no good relation between the TDO Laljibhai Patel and the present respondent – accused and they both were not in good term with each other. He further admitted that the TDO was keeping prejudicial attitude towards the accused. It is further pertinent to note that according to this witness, Masangji Sonaji had paid the entire dues on 5/11/1993 and had deposited the said amount in the Treasury. Despite this, this witness admits that Masangji did not make any complaint to him that he had paid the entire dues to the accused. In the impugned judgment, the learned Magistrate observed that if at all Masangji had paid the entire dues to the accused as per the case of the prosecution, then second time if he was required to pay even part of the said amount, either he would be reluctant to pay or at-least while paying the remaining part of the amount, the payee would definitely object once he had already paid the full amount; yet for the second time he has paid either the whole or part of said amount. Nothing whatsoever was done in this case as per the deposition of witness Layakatali. CR.A/1230/1997 11/13 JUDGMENT 7.2. Considering the deposition of witness Masangji Sonaji recorded at exh. 24, the learned Magistrate observed that during the course of his deposition the original receipt exh. 7 was shown to him and he stated that he had paid the amount to the accused and that subsequently Circle Inspector recorded his statement. He further stated that he brought the original receipt exh. 7 and supplied it to the Circle Inspector. In the impugned judgment the learned Magistrate observed that perusing the statement of this witness Masangji recorded by the Circle Inspector, he narrated in detail, the facts regarding actual amount paid by him and the other particulars; whereas during the course of his deposition before the trial Court, he only stated that he paid amount as per the receipt exh. 7 and no other details were stated by this witness during the course of his deposition. About his statement recorded by the Circle Inspector, he stated that he did not know as to what was mentioned by Circle Inspector in his statement. Though he is literate, neither he read said statement nor the statement was read out to him by the Circle Inspector. 7.3. The Investigating Officer PSI Lakhabhai Koyabhai was examined at exh. 32. In his cross-examination he admitted that he did not record any further statement of the complainant. He clearly admitted that during the course of his investigation, he did not seize any documentary evidence. Even he went to the extent of saying that he had not seen the CR.A/1230/1997 12/13 JUDGMENT original receipt. In the impugned judgment, the learned Magistrate observed that when the entire case of the prosecution rests on the footing that the accused issued original receipt to Masangji showing the payment of Rs.6,952-89 paise made to the accused by said Masangji; whereas in the duplicate and triplicate receipts the accused has written Rs.1,900/- as received from Masangji, yet the Investigating Officer did not care to see either the original receipt or even the duplicate and triplicate receipts. The entire case depends upon the documentary evidence, yet not a single documentary evidence was seized by the Investigating Officer. 7.4. Considering the deposition of second Investigating Officer Babarbhai Patel recorded at exh. 34, it clearly transpires that he arrested the accused and subsequently filed charge-sheet in the Court of the learned Magistrate 8. In para. 12 of the impugned judgment, the learned Magistrate verified the original receipt and duplicate and triplicate receipts produced at exhs. 7, 12 and 13 respectively, observed that it is difficult to say that out of the three which can be said to be original or duplicate or triplicate receipts, in the sense that in the duplicate as well as in the triplicate receipt, the original hand writing are there. Learned Magistrate observed that if the duplicate receipt is carbon copy of the original receipt, then there may not be any original handwriting in the CR.A/1230/1997 13/13 JUDGMENT duplicate receipt. He observed that even in the original receipt, the name of Masangji Sonaji is not mentioned. In para. 12 of the judgment, the learned Magistrate enumerated the differences amongst the contents of the original receipt and the duplicate and triplicate receipts. In light of this, the learned Magistrate observed that scientific investigation was necessary in this case, in the sense that the police should have in the first instance seized such important documentary evidence during the course of investigation and thereafter should have forwarded such documentary evidence to handwriting expert. No such scientific investigation was made in this case. Learned Magistrate further observed that even the prosecution failed to prove the required ingredients of “entrustment” beyond reasonable doubt in this case. 9.. Thus, by assigning cogent and convincing reasons in the impugned judgment, the learned Magistrate came to the conclusion that the prosecution failed to prove beyond reasonable doubt its case against the accused. I do not find any just and proper ground to interfere with the impugned judgment and order delivered by the learned Magistrate. In the result, the appeal deserves to be dismissed and it is hereby dismissed. ( J .C. UPADHYAYA, J. ) *Pansala.