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Judgment
Z.K. Saiyed, J.—The present appeal, u/s 373(4)(6) of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 17.7.1998 passed by the learned Metropolitan Magistrate Court No. 2 in Criminal Case No. 5831 of 1992, whereby the accused has been acquitted from the charges leveled against him.
The brief facts of the prosecution case are as under:
2.1 The complainant is the Employees Inspector Employees'' Corporation and the accused were asked to produce record before the Insurance Corporation within 10 days from the notice dated 19.5.1992 but the accused failed to produce the same. Therefore, the accused have committed default willfully u/s 44(2) of the ESI Act and the accused are punishable u/s 85(g) of the ESI Act, 1948.
2.2 Therefore, Criminal Case No. 5831 of 1992 with respect to the aforesaid offence was filed against the respondents before the learned Metropolitan Magistrate Court No. 2, Ahmedabad. Process was issued against respondents for the provisions u/s 85(g) of the ESI Act. After hearing and recording the oral as well as documentary evidence, the learned trial Judge has acquitted the accused by passing order dated 17.7.1998.
2.3 To prove the case against the present accused, the appellant produced oral and documentary evidence.
2.4 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned trial Court the appellant has preferred the present appeal.
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 judgement 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.
3.1 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.
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.
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 judgement 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.
5.1 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.
5.2 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.
5.3 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 Counsel for the appellant.
Looking to the paper, it appears that complaint was file by the complainant on 17.11.1992 and summons was issued against the respondents. It was notified before the learned Magistrate 28.12.1992 then it was adjourned on 10.2.1993 and on that day, complainant and his advocate were not present before the learned Judge, therefore, it was adjourned on 10.5.1993. On that day, the complainant was present, but summons was not served to the accused and on the same ground, the matter was adjourned on 21.8.1993, 1.12.1993, 9.3.1994, 24.5.1994, 17.8.1994, 20.1.1995, 30.3.1995, 15.5.1995, 11.8.1995 etc. and also on the date of hearing, the learned advocate and complainant were present before the learned Judge, but the respondents - accused were not served. It was duty of the appellant to serve the process and pray to learned Court to follow the provisions of Code of Criminal Procedure. Looking to date of filing of the complainant is dated 17.11.1992 and order passed on 17.7.1998. The accused persons - respondents were not served after six years. The trial Court has followed direction issued of the Hon''ble Supreme Court in the case of ''Common Cause'' a registered Society through its Director (I) v. Union of India and Ors. reported in 1997 (1) GLH 417.
Heard Mr. Barot, learned advocate for the appellant. He has read the judgment of the Hon''ble Supreme Court and vehemently argued that present respondents are offenders of economic offence and even public funds is also involved and learned Judge has not applied his mind. Learned Judge has committed gross error in passing the order. Therefore, order of the learned Judge is required to be set aside.
Heard learned APP Mr. Pandya for respondent State and Mr. Buddhbhatti, learned Counsel for Mr. K.N. Pandya, learned Counsel appearing on behalf respondent No. 2.
I have gone through the submissions made by Mr. Barot learned Counsel for the appellant. I have gone through the judgment of the Hon''ble Supreme Court. The Hon''ble Supreme Court has observed in para 4 of the aforesaid judgment as under:
Directions (1) and (2) made hereinabove shall not apply to cases of offences involving (a) corruption, misappropriation of public funds, cheating, whether under the Indian Penal Code, Prevention of Corruption Act or any other statute, (b) smuggling, foreign exchange violation and offences under the Narcotics Drugs and Psychotropic Substances Act, (c) Essential Commodities Act, Food Adulteration Act, Acts dealing with Environment or any other economic offences, (d) offences under Arms Act, Explosive Substances Act, Terrorists and Disruptive Activities Act, (e) offences relating to the Army, Navy and Air Force, (f) offences against public tranquility; (g) offences relating to public servants, (h) offences relating to coins and Government stamp, (i) offences relating to elections, (j) offences relating to giving false evidence and offences against public justice (k) any other type of offences against the State (1) offences under the Taxing enactments and (m) offences of defamation as defined in Section 499 I.P.C.
Looking to the contention of the complaint of the present appellant, the ingredients of the complaint is not covered within the meaning of corruption case, misappropriation case of public funds, cheating, smuggling, foreign exchange violation and offence under Narcotics Drugs and Psychotropic Substance Act, Essential Commodities Act, Food Adulteration Act and Acts dealing with Environment or any other economic offences, (d) offences under Arms Act, Explosive Substances Act, Terrorists and Disruptive Activities Act, (e) offences relating to the Army, Navy and Air Force, (f) offences against public tranquility; (g) offences relating to public servants, (h) offences relating to coins and Government stamp, (i) offences relating to elections, (j) offences relating to giving false evidence and offences against public justice (k) any other type of offences against the State (1) offences under the Taxing enactments and (m) offences of defamation as defined in Section 499 I.P.C. The trail Court has correctly relied upon the judgment and therefore, I do not find any reasons, which are assigned by the learned trial Judge is required to be interfered by this Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
Mr. Barot, 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, ulti mate 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. Bail bond, if any, stands cancelled. Record and proceedings to be sent back to trial Court, forthwith.