Harnam Singh and Another vs State of Haryana and Another

Alok Singh, J.

CRM No. 29992 of 2010

Application is allowed for the reasons stated therein. Delay of 119 days in filing the petition is condoned.

Main Case

Harnam Singh and Jassa Ram-Petitioners have knocked the door of this Court by way of present revision petition against the judgment and order dated 1.9.2009, passed by the Sub-Judicial Magistrate, Tohana, by virtue of which the accused Respondent No. 2 was acquitted of the charges levelled against him by giving him benefit of doubt. In a nutshell the facts necessary for the disposal of this petition are that on 20.7.2003 Tilak Raj got recorded a statement before the police that due to unemployment he was doing agriculture work. His neighbour, namely, Mohan Singh son of Attar Singh resident of Deh (hereinafter referred as accused) told him that he could send the complainant to a foreign country, since his own son Tarsem had gone there. Believing the accused, complainant alongwith Harnam Singh son of Jaimal Singh, Amrik Singh son of Puran Singh, Jassa Ram son of Gurnam Singh and Rajbinder Singh son of Kulbir Singh all residents of Village Deh, were ready to go to foreign country. Accused Mohan Singh obtained an amount of Rs. 3,00,000/-from the complainant. Similarly, accused took money from above said Harnam etc. For a few months complainant was kept in foreign country. Since, no employment was got arranged for him, complainant came back. Accused Mohan Singh alongwith his son Tarsem and daughter Harinder Kaur had cheated the complainant, apart from misappropriating his money. On the basis of the said statement, a case was registered against the accused. Statements of the witnesses were recorded and after completion of the investigation challan was presented against the accused-Respondent No. 2. The accused was charge sheeted u/s 406 and 420 of Indian Penal Code to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined 10 witnesses and closed its evidence. Statement of the accused u/s 313 of the Code of Criminal Procedure was recorded, wherein he denied the allegations and pleaded false implication. After hearing the learned Public Prosecutor, learned defence counsel as well as after going through the record the learned trial Court acquitted the accused as noticed above.

Learned Counsel for the Petitioner has vehemently argued that the learned trial Court has not properly appreciated the evidence available on the record and as such the impugned judgment of acquittal is liable to be set aside and the accused are liable to be acquitted for an offence under Sections 406 and 420 of the Indian Penal Code. In the year 2003, the accused had taken Rs. 3,00,000/-for sending him to foreign country, but he has neither send him to foreign country nor returned the said amount and in this manner the accused is liable to be punished for the commission of offence under Sections 406/420 of the Indian Penal Code.

I have gone through the record and have given my thoughtful consideration to the arguments advanced by the learned Counsel for the Petitioner.

After going through the record, I find that Jagdish when appeared in the witness box has deposed on oath that accused-Respondent had promised him to send him to foreign country on payment of Rs. 2,50,000/-and the said money was given by his father Balraj, but neither Balraj father of PW7 Jagdish, has been cited as a prosecution witness nor PW7 Jadgish has given the date, month, place or time of making the payment to the accused-Respondent. Similarly, though PW4 Rajvinder Singh has deposed regarding the payment of Rs. 2,65,000/- through his father Kulbir Singh to the accused-Respondent, but surprisingly the name of this witness does not mention in the list of witnesses to be examined on behalf of the prosecution. Similarly, PW3 Harnam Singh has deposed that accused-Respondent has obtained Rs. 4,00,000/-from him by playing fraud yet he has failed to give specific day, month, place or time of the said payment and in this manner the statements made by the prosecution witnesses are vague and no reliance can be placed on such type of evidence. Learned trial Court has properly appreciated the evidence available on the record and has rightly came to the conclusion that the prosecution has failed to prove the charges framed against the accused-Respondent. The trial Court after going through the material on record has opined that in the absence of disclosure of name of offender, non-identification of accused in the court and not uttering even a single sentence against the accused regarding entrustment and cheating against the accused by Tilak Raj complainant, it cannot be said that accused had committed the alleged offense of cheating and criminal breach of trust. Suffice it to say that there are doubts galore in the evidence of prosecution, on account of which, accused is entitled for benefit of doubt.

Hon''ble Apex Court in the matter of Akalu Ahir reported in 1973(3) SCC 583 in para 8 has observed as under: -

...the revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice

i. Where the trial court has no jurisdiction to try the case, but has still acquitted the accused;

ii. Where the trial court has wrongly shut out evidence which the prosecution wishes to produce;

iii. Where the appellate court has wrongly held the evidence which was admitted by the Trial Court to the inadmissible;

iv. Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and v. Where the acquittal is based on the compounding of the offence which is invalid under the law.

These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal."

Hon''ble Apex Court, in the matter of Bindeshwari Prasad Singh v. State of Bihar reported in 2002(6) SCC 560 in paras 13 and 14 has observed as under:

The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.

We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction u/s 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial Court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At best the High Court thought that the prosecution witnesses were reliable while the trial court took the opposite view. This Court has repeatedly observed that in exercise of revisional jurisdictional against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and should not constitute itself into an appellate court which has a much wider jurisdiction to go into questions of facts and law, and to convert an order of acquittal into one of conviction.

Hon''ble Apex Court, in the matter of Johar and Others Vs. Mangal Prasad and Another, in para 19 has held as under: -

The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severally (sic severely) restricted, particularly when it arises from a judgment of acquittal.

Now, this is well settled preposition of law that power of this Court in a revision against the judgment of acquittal is limited. This Court while exercising the revisional jurisdiction ordinarily will not re-assess the evidence. Even if two views are possible on the re-assessment of the evidence, this Court while exercising the revisional jurisdiction ordinarily shall not disturb the order of acquittal passed by the learned Trial Court. It is well settled law that in case of acquittal if trial Court''s view is possible or plausible then the Appellate Court or the High Court should not ordinarily interfere with the findings of the trial Court. Furthermore, it is a settled legal position that if there is a presumption of innocence of the accused then that presumption is further fortified with the acquittal of accused by the trial Court.

In the opinion of this Court, learned trial Court has not left or overlooked any important evidence which could prove the guilt of the accused. In the opinion of this Court, trial Court has not committed any jurisdictional or procedural error which would have vitiated the trial. No interference is called for. Dismissed.