Dayashanker vs Jogi Devji Tandel and Others

Z.K. Saiyed, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 16.5.1988 passed by the learned Additional Chief Judicial Magistrate, Valsad in Criminal Case No. 2 of 1985, whereby the accused has been acquitted of the charges leveled against him.

The brief facts of the prosecution case are as under:

2.1 On 20.12.1983, the officers of the Customs office, Ahmedabad were petrolling between Daman and Umargam at the sea routes. At that time, at about 12:00 a.m., there were two steamers found suspicious. The officers made indication about stop the said steamers, but on the contrary, said steamers were running with fast speed in the adverse direction. Thereafter, the officers made attempt to catch up and ultimately, both were cought by the officers. After inquiry, various currencies of different countries were found in all Rs. 47,31,078/-, which was seized u/s 113 of the Customs Act. The proceedings were initiated u/s 135 of the Customs Act as well as 120-B of the Indian Penal Code.

2.2 Therefore, Criminal Case No. 2 of 1985 with respect to the aforesaid offence was filed against the learned Additional Chief Judicial Magistrate, Valsad. Necessary investigation was carried out and statements of several witnesses were recorded. Ultimately, charge-sheet was filed against them before the court of learned Additional Judicial Magistrate, Valsad.

2.3 To prove the case against the present accused, the prosecution has examined, in all 17 witnesses and also produced documentary evidence.

2.4 At the end of trial, after hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondent of all the charges leveled against them by judgment and order dated 16.5.1988.

2.4 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned trial Court, the appellant State has preferred the present appeal.

It was contended by learned Counsel Mr. K.T. Dave that the judgment and order of the learned Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondent. Learned Counsel has also taken this Court through the oral as well as the entire documentary evidence.

At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala and Another, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:

In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.

4.1 Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran and Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:

From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.

4.2 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh and Ors. reported in AIR 2007 SCW 5553 and in Girja Prasad (Dead) by LRs v. State of M.P. reported in AIR 2007 SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned Counsel for the appellant.

Mr. K.T. Dave, learned Counsel is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.

In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.

I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.

I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is required to be dismissed.

In view of the aforesaid observation, appeal fails and is hereby dismissed. Bail bond, if any, stands cancelled.