State of Gujarat vs Chhelshankar Purshotam Trivedi 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 7.11.1992 passed by the learned Judicial Magistrate, First Class, Dhari in Criminal Case No. 608/1997, whereby the accused

have been acquitted of the charges u/s 408, 409, 467, 477(A), 109 and 34 of IPC. leveled against them.

The brief facts of the prosecution case are as under:

2.1 The accused No. 1 was Education Inspector, accused No. 2 was Dy. Accountant and accused No. 3 were serving at Dhari Taluka Panchayat

office. During the period commencing from March, 1980 to June 1980, the pay bill, DA, TA, Medical Allowance and other allowances of Primary

Teachers, serving under the Taluka Panchayat Office were prepared and the pay is to be disbursed from the pay-centre at Dhari. The pay bills are

required to be presented by Head-Master of the respective schools t the Dhari Taluka Panchayat Office and the same were required to be noted-

down by making entry in dispatch book. The concerned employee who have raised the medical bills are required to submit the medical b ills and

the medical certificate along with the differences for medical allowance and the same is required to be submitted in the form containing in Schedule

10 and are to be presented. Such applications are to be rotated through the clerk of Dhari Taluka Panchayat in its Education Branch and it is the

duty of the concerned clerk to check the amount and approve the medical bill and Education Inspector after examining all the papers received from

the clerk examined as to whether the order for payment prepared by the clerk is correct or not and after checking the same he is required to place

the endorsement to that effect and sent to Dy. Accountant for sanctioning the bill of the concerned teacher and after examining the same by the Dy.

Accountant, the same are required to be submitted through the Taluka Development Officer for passing appropriate order for payment and after

the signature of TDO, the same are required to be sent to Senior Accountant for issuing the cheque for that amount after putting proper entries in

the register and such cheques are required to be signed by Cheque issuing officer and Dy. Accountant and thereafter the TDO put his signature

and such cheques are then sent to the pay-centre in the name of the Head -Master. The accused Nos. 1 to 3 had disbursed the medical

allowances in respect of February 1980 to June 1980 and the said disbursement and applications of the concerned teachers were not according to

the above mentioned procedure and inspite of the same, in the name of the teachers the medical allowances expenses were approved and cheques

were issued and the amounts were withdrawn. According to the prosecution case, the accused No. 1, 2 and 3 knowingly and with dishonest

intention appropriated the amount of Rs. 2824.92paise during the aforesaid period of four months from February, 1980 to May, 1980 from the

medical bills of accused No. 4 to 19. In the month of June, 1980, the bill for an amount of Rs. 99.70paise was prepared and approved in the name

of Bhimjibhai Mevabhai Rathod and on inquiry, at was found that no such bill was either claimed or place or submitted by Bhimjibhai Mevabhai

Rathod and thereby on examining its truthfulness it has come to the notice that no such application for medical allowances were made by the said

person in Schedule-10 form and certificate was also not submitted but the name of the said person was included in the order for payment and the

bill was sanctioned. Therefore, on noticing this illegality, the bills from February, 1980 to May, 1980, were examined and it was learnt that the

aforesaid amount have been appropriated by the accused persons.

2.2 Therefore, a complaint with respect to the aforesaid offence was filed against the respondent with the Dhari Police Station. Necessary

investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondents were arrested

and, ultimately, charge-sheet was filed against them before the court of learned JMFC, Dhari, which was numbered as Criminal Case No.

608/987. The trial was initiated against the respondents.

2.3 To prove the case against the present accused, the prosecution has examined 36 witnesses and also produced several documentary evidence.

2.4 At the end of trial, after recording the statement of the accused u/s 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the

defence, the learned Judge acquitted the respondents of all the charges leveled against them by judgment and order dated 7.11.1992.

2.5 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court the appellant State has preferred the

present appeal.

It was contended by learned APP that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court 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

the whole ingredients of the evidence against the present respondent. Learned APP has also taken this Court through the oral as well as the entire

documentary evidence. He has further contended that the as per the provisions of Section 107 and 108 of IPC, the prosecution has proved its

case but the learned Judge has not considered the oral as well as documentary evidence. He has also contended that the reasons assigned by the

learned Judge is not proper and legal. The learned Judge has not considered the expert''s opinion.

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 APP for the appellant-State. I have alsoperused Ex. 396 statement of the original

accused No. 12 and in view of provisions of Evidence Act, no doubt, there is a provision u/s 10 of the Evidence Act that the statement of co-

conspirator can be used against the other conspirators but from the perusal of the charge, it appears that the charge of criminal conspiracy was not

framed against the accused persons and therefore the statement of co-accused cannot be used against the other accused persons under the

provisions of Evidence Act. Even from the opinion of hand-writing expert , the prosecution has failed to prove the case against the respondents

that they have prepared and forged the documents. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the

trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

Mr. Kartik Pandya learned APP 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 of the

charges leveled against them.

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 are, 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. R & P to be sent back to the trial Court, forthwith.

Bail bond, if any, stands cancelled.