John Hamilton Christian vs Sham Crimpers 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 2.8.1997 passed by learned Sessions Judge, Surat in Criminal Appeal No. 43 of 1989 whereby the learned Sessions Judge has acquitted the accused for the offences punishable u/s 13 and 21 of the Octroi Act read with Section 398 of the BPMC Act, by setting aside the order of the learned Magistrate dated 4.10.1989 passed in Criminal Case No. 196 of 1984. The learned Sessions Judge by the said judgment and order has also dismissed the Criminal Revision Application No. 5 of 1990 filed by the appellant.

The brief facts of the prosecution case are as under:

2.1 It is the case of the prosecution that the complainant Food Inspector working in Octroi Department of Surat Municipal Corporation. The Commissioner, Surat Municipal Corporation gave the authority to the appellant by letter dated 4.2.1984 to file prosecution against respondents  accused No. 1 to 6. It is the case of the prosecution that the respondent No. 1 is a partnership firm and respondents No. 2 to 6 are the partners of respondent No. 1 firm and the respondents No. 1 to 6 are doing the business of crimping on the machines. It is the case of the prosecution that the respondents No. 1 to 6 purchased and imported crimping machine on 17.3.1982 within the limits of Surat Municipal corporation. The respondent No. 1 company imported the said machine made by Himson Company within the limits of Surat Municipal Corporation which is situated in GIDC. At the time when the said machine was imported within the limits of corporation, no declaration form was filed and without paying the octroi and without declaring the case of the machine, the said machine was entered in the city.

2.2 Therefore for the aforesaid breach of the octroi rules by the accused, the complainant filed complaint before the learned Judicial Magistrate, First Class (Muni.), Surat. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, the respondent-accused were arrested and ultimately charge sheet was filed against them before the learned Judicial Magistrate, First Class (Muni.), Surat.

To prove the case against the accused, the prosecution has examined five witnesses and also produced the documentary evidence before the learned Magistrate. At the end of trial and after hearing arguments on behalf of prosecution and the defence, the learned Judicial Magistrate, First Class (Muni.), Surat has ordered the penalty for five times for respondents No. 1 and 2 and for respondents No. 3, 4, 5 and 6 three times penalty was imposed for the said octroi amount of Rs. 23,988/- in respect of the said machine which is valued at Rs. 9,59,519.52ps and convicted the accused for the offences punishable u/s 13(1)(e), Section 21 of Octroi Act read with Section 398 of the BPMC Act. That order of conviction was challenged by the original accused before the learned Sessions Court at Surat and the appeal was registered as Criminal Appeal No. 43 of 1989. It was heard at length by the learned Sessions Judge and the learned Sessions Judge has observed that there was a lacuna in the production of the evidence of the prosecution and the order of the conviction was set aside by the learned Sessions Judge by judgment and order dated 2.8.1997.

3.1 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Judge, Surat, the appellant has preferred the present appeal.

Mr. Tej Shah, learned advocate for Mr. Prashant Desai, learned advocate for the appellant has contended that the judgment and order of the learned Judge is against the provisions of law; the learned Judge 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 all the ingredients of the evidence against the present accused. The learned advocate for the appellant, therefore, submitted that the appeal be allowed and the judgment and order passed by the learned Sessions Judge be set aside.

Mr. Adil Mirza, learned advocate for Mr. R.R. Marshall, learned advocate appeared on behalf of respondents No. 1 to 6 and Ms. Chetna M. Shah, learned Additional Public Prosecutor appeared on behalf of respondent No. 7-State. The learned advocate for the respondents No. 1 to 6 submitted that the prosecution has failed to establish the case against the accused. It is submitted that there is no evidence worth the name to show that the respondents-accused had committed the alleged offence levelled against the respondents-accused. It is submitted that the prosecution has failed to establish the case against the respondents-accused and the learned Sessions Judge has rightly acquitted the respondents-accused of the charges leveled against them.

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.

6.1 Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court has laid down the following principles:

From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

[3] Various expressions, such as, ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusions'', ''glaring mistakes'', etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language'' to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

6.2 Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

6.3 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.

6.4 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 MP reported in AIR 2007 SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

6.5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy Alias Vemareddy and Another, wherein it is held as under:

This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.

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 advocate for the appellant and the learned advocate for the respondents. It appears from the reason itself shows that the prosecution has not proved the case beyond reasonable doubt. Even they have not produced any documentary evidence in support of the prosecution case. Further the learned advocate for the appellant 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 respondents-accused of the charges levelled against them. I am 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 hereby dismissed. R & P to be sent back to the trial Court, forthwith. Bail bond, if any, stands cancelled.