Mohan Dyechem Industries vs State of Gujarat and Another

Z.K. Saiyed, J.—The appellant-original complainant has filed the present appeal u/s 378 of the Code of Criminal Procedure, 1973 against the Judgment and order of acquittal dated 17/1/2002 passed by the learned Assistant and Additional Sessions Judge, Vadodara in Criminal Appeal No. 28 of 2001 whereby the judgment and order of conviction and sentence dated 20/4/2001 passed by Judicial Magistrate First Class (Traffic), Vadodara in Criminal Case No. 1739 of 1999 is set aside and accused was acquitted of the charges leveled against him.

The brief facts of the prosecution case are as under:

2.1 On 4/1/1999 the complainant has received order from the company of accused that accused wanted to purchase the Benjonthron. Accordingly complainant has sent the goods as per order on 6/1/1999 of Rs. 63,790/- vide Invoice No. 071 and also sent the goods as per order on 6/2/1999 of Rs. 14,774/- vide Invoice No. 072. The accused after receiving goods given two cheques of Rs. 63,790/- on 10/2/1999 and of Rs. 14,374/- on 16/3/1999 and also promised that if any delay would occur in payment, he will pay 2.5% interest per month. From the bank the said two cheques were came back and thereby complainant has sent demand notice on 4/5/1999 u/s 138(B) of the Negotiable Instruments Act for payment of said two cheques. Though said notice was received by the accused, he has not paid the money of cheques and therefore the complainant has filed complaint before the Judicial Magistrate First Class (Traffic), Vadodara under Sections 117 and 138 of the Negotiable Instruments Act.

2.2 Necessary investigation was carried out and statements of witnesses were recorded. Ultimately, charge sheet was filed against the respondents-accused before the court of learned Judicial Magistrate First Class (Traffic), Vadoara which was numbered as Criminal Case No. 1739 of 1999. After considering the evidence on record and submissions made by the parties, learned Judicial Magistrate First Class (Traffic), Vadodara on 20/4/2001 has passed order convicting and sentencing the respondent to suffer simple imprisonment of Eleven months and a fine of Rs. 5,000/- and in default simple imprisonment of one month. The learned Magistrate has also ordered the respondent-accused to pay Rs. 1,00,000/- as compensation to the appellant.

2.3 Being aggrieved by the said judgment and order of the learned Judicial Magistrate First Class (Traffic), Vadodara dated 20/4/2001, accused-company has filed Criminal Appeal No. 28 of 2001 before the learned Assistant and Additional Sessions Judge, Vadodara and the learned Assistant and Additional Sessions Judge, Vadodara vide order dated 17/1/2002 set aside the judgment and order of conviction and sentence dated 20/4/2001 in Criminal Case No. 1739 of 1999 passed by Judicial Magistrate First Class (Traffic), Vadodara and acquitted the accused of the charges leveled against him which is impugned in the present appeal.

2.4 Being aggrieved by and dissatisfied with the aforesaid Judgment and order passed by the learned Assistant and Additional Sessions Court dated 17/1/2002, the appellant-original complainant has preferred the present appeal.

Learned advocate Mr. M.M. Tirmizi for the appellant-original complainant contended that there was non-production of document regarding service of postal receipt and the same was not properly considered by the learned Assistant and Additional Sessions Judge and acquitted the accused of the charges leveled against him observing that the complainant has not followed mandatory provisions of law. He has also contended that the Sessions Court has not properly appreciated the evidence led by the prosecution before the Trial Court 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-accused. He has also taken this Court through the oral as well as the entire documentary evidence. He has submitted that the accused was found committing offence punishable under Sections 117 and 138 of the Negotiable Instruments Act and therefore the Judicial Magistrate First Class (Traffic) has rightly imposed the punishment as stated above upon the accused person and therefore there was no reason for the learned Assistant and Additional Sessions Judge to disbelieve the prosecution case and to acquit the respondent-accused.

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 Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court 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.

4.2 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.

4.3 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.

4.4 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.

4.5 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.

4.6 Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.

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-original complainant Mr. Tirmizi. I am too impressed with the arguments made by learned advocate for the appellant-original complainant but he is not in a position to convince this Court that the original complainant has followed the mandatory provisions regarding notice to the other side.

5.1 The entire prosecution case rests on documentary evidences produced before the Court. No doubt the prosecution has produced sufficient evidences before the learned Judicial Magistrate First Class (Traffic), Vadodara to prove the case but before the learned Assistant and Additional Sessions Judge learned advocate for the appellant-original complainant has failed to prove the case. Even today learned advocate for the appellant is unable to show that the respondent-accused person has committed offence punishable under Sections 117 and 138 of the Negotiable Instruments Act. It appears from the documentary evidence produced before the Trial Court that the prosecution has failed to prove the case beyond reasonable doubt. Therefore it appears that there is serious lacuna in the prosecution case and the prosecution has failed to establish the case against the respondent-accused. Therefore the Trial Court has rightly passed the order of acquittal in favour of the accused and I do not find any reason to interfere with the said finding of the Trial Court.

5.2 Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. 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 respondent-accused 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 hereby dismissed.