Jaswant Singh vs State of Punjab and Another

Sabina, J.—Chaman Lal-respondent 2 along with his co-accused Kamal Kumar had faced trial for commission of offence punishable under Sections 120B and 420 of the Indian Penal Code, 1860 (IPC for short) in F.I.R. No. 15 dated 11.2.2006 registered at Police Station Koomkalan, Ludhiana. Trial Court, vide judgment/order dated 13.7.2011 convicted and sentenced respondent 2 for commission of offence punishable u/s 420 IPC. In appeal filed by respondent No. 2, he was acquitted of the charges framed against him by the Appellate Court vide judgment dated 27.2.2013. Co-accused Kamal Kumar was acquitted by the trial Court and his acquittal was maintained by the Appellate Court. Hence, the present petition by the complainant-petitioner.

I have heard learned counsel for the petitioner and have gone through the record available on the file carefully.

Prosecution story, in brief, is that the accused took Rs. 3,20,000/- from the complainant for sending him to Korea. However, complainant was sent to Hongkong and Taiwan on business tour visa and no work permit was obtained for the complainant by the accused, although, they had assured him in this regard.

Learned Appellate Court, while ordering acquittal of respondent No. 2 of the charge framed against him, has held as under:-

As per the inquiry report Ex. DB the amount of Rs. 3,20,000/- and passport was handed over by the complainant in December, 2004. As per the air tickets EX. PW 2/A and PW 2/B, the complainant had travelled in the month of March, 2005. He waited till November, 2005 and then moved written complaint EX. PA to DIG, Ludhiana Range Ludhiana for registration of case against Chaman Lal and his sons. The delay in lodging of the F.I.R. has not been explained. The evidence of the prosecution does not prove the dishonest intention of Chaman Lal in sending the complainant to Hongkong or Taiwan. It is made out from the evidence that the complainant had willingly travelled to Hongkong and Taiwan and was in the knowledge that he was being sent to these countries on return air ticket and on business tour visa. It is not proved that there was any misrepresentation by the accused which resulted in inducement of the complainant. The oral statements of the prosecution witnesses that the accused had assured to send the complainant to Korea cannot be accepted. In my opinion the ingredients of offence punishable u/s 420 IPC are not proved. The witnesses have proved that Rs. 50,000/- have been returned out of Rs. 3,20,000/- paid to the accused and the remaining amount has not been paid by him. The remedy available to the complainant to recover the remaining amount is of civil nature. It seems that the F.I.R. has been got lodged just to get the remaining amount recovered from the accused. The matter was not reported to the police immediately on coming to know of the cheating committed by the accused. The delay in lodging of the F.I.R. explains that there was mutual consent between the parties that the complainant would travel on business tour visa to Hongkong and Taiwan and then return to India on the same air ticket. In case there was any agreement between the parties that the complainant would travel to Korea on work permit, the complainant could not have boarded the flight from New Delhi on return ticket.

The reasons given by the appellate court, while ordering acquittal of respondent No. 2 are sound reasons. Learned counsel for the applicant has failed to point out any mis-reading of evidence on record by the appellate court which would warrant interference by this Court.

Their lordships of the Supreme Court in Allarakha K. Mansuri Vs. State of Gujarat, , held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.

A Division Bench of this Court in State of Punjab Vs. Hansa Singh while dealing with an appeal against acquittal, has opined as under:

We are of the opinion that the matter would have to be examined in the light of the observations of the Hon''ble Supreme Court in Ashok Kumar Vs. State of Rajasthan, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.

To the same effect is the ratio of the judgments of the Supreme Court in State of Goa Vs. Sanjay Thakran and Another, and in Chandrappa and Others Vs. State of Karnataka,

Similarly, in Mrinal Das and Others Vs. The State of Tripura, , the Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:

8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.

Accordingly, this petition is dismissed.