The State of Gujarat vs H.S. Balani Executive Engineer and Others

K.S. Jhaveri, J.

1.0 The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgement and order of acquittal dated 12th August 1991 passed by learned Special Judge, Special Court, Rajkot in Special Criminal Cases No. 31 to 34, 38 to 43, 46, 47 and 49 to 53 of 1986 whereby the accused persons were acquitted of the charges leveled against them.

2.0 The brief facts of the prosecution case are as under:

2.1 In all these cases the accused are Executive Engineer, Deputy Engineer and Supervisor of Rural Water Resources and Research Department, Rajkot and also the contractor who was given the work on contract.

2.2 As per the Scheme of the Department yield test for the well situated at various villages of Rajkot District was to be performed by the officers of the Department. The yield test was for measuring the speed of water being received in the well. Accordingly the contract was given to the accused contractor and the officers of the Department were to supervise the work of yield test of the well. As per the procedure the Executive Engineer was to pass the bills and make payment to the contractor. The allegation is that though the work was given to the contractor, the yield test was done with the help of local farmers, the pump of the local farmers were used for drawing the water from the well and no payment as remuneration for using the machines was made to the farmers by the officers of the Department. The further allegation is that the Deputy Engineer prepared false bills in the name of the contractor knowing fully well that no work of yield test was performed by the Contractor. Such bills were illegally passed and payment was made to the contractor by bearer cheque avoiding usual procedure of making payment by crossed cheque. It was further alleged that the bill was passed on priority basis. The further allegation is that the contractor received payment of Rs. 2000/- knowing fully well that he had not done any yield test of the well in question.

2.3 Therefore it was alleged that the respondents accused committed offences u/s 409, 420, 467, 477-A, 120B, 34, 114 and 165-A of Indian Penal Code and offence under clause [c] and [d] of Sub-section (1) of Section 5 of Prevention of Corruption Act, 1947. Accordingly various complaints were filed in respect of different wells and different payments against the respondents after taking sanction u/s 6(1)(b) of the Prevention of Corruption Act and u/s 196(2) and Section 197(1) of the Criminal procedure Code.

2.6 Necessary investigation was carried out and statements of several witnesses were recorded. After investigation chargesheet was filed against the respondents before the court of learned Special Judge, Rajkot.

2.7 Thereafter trial was initiated against the respondents. In order to prove the guilt of the accused the prosecution has examined various witness and produced on record various documents including rate list for taking yield test, final bill of yield test, request letter for bearer cheque, xerox copy of the cheque, yield test report, letter of opinion of handwriting expert, PWD Manual Rule, PWD procedure and accounts, letter of previous sanction for prosecution, etc.

2.8 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 Special Judge, Special Court, Rajkot, acquitted the respondents of all the charges leveled against them by judgement and order dated 12th August 1991.

3.0 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant State has preferred the present appeal.

4.0 It was contended by learned APP that the judgement and order of the Special Court is against the provisions of law; the Special 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 all the ingredients of the evidence against the present respondents.

4.1 Learned APP has also taken this Court through the oral as well as the entire documentary evidence. He submitted that the trial court has erred in appreciating the opinion of the handwriting expert and that issuance of bearer cheque is against the rules. He, therefore, submitted that the appeals deserve to be allowed.

5.0 Learned Advocates appearing for the respondents submitted that the prosecution has failed to establish the case against the respondents accused.

5.1 They submitted that there is no evidence worth the name to show that the respondents accused have committed the alleged offence levelled against them.

5.2 Learned Advocates, therefore, submitted that The prosecution has failed to establish the case against the accused and the trial court has rightly acquitted the respondents of the charges leveled against them.

6.0 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.

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 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.

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 judgement 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.

6.6 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.

7.0 We have gone through the judgement and order passed by the trial court. We 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.

7.1 A clear finding is recorded by the trial court to the effect that the bill which has been prepared and the payment made on the basis of the said bill, no link has been found between them and the well of the witness who has been examined. In fact the only allegation is that the farmer was not paid the amount for the usage of his engine for the purpose of carrying out the test and even if it is true, then also for such act of non-payment, it cannot be said that it is a criminal offence.

7.2 The Special Court has considered the oral as well as documentary evidence on record. The Court has placed reliance upon the opinion of handwriting expert. This document explicitly establishes that the signature therein is of the contractor to whom the contract work was given. It has therefore come on record that the contractor was given contract. Further evidence on record shows that measurement was taken and bill was prepared accordingly and the payment was made to the contractor by cheque which was encashed by the contractor himself by signing the same. The bill was duly sanctioned and payment was received by accused contractor. All the documents establishing the said facts are on record and it cannot be said that the trial court has committed any illegality or error in appreciating those pieces of evidence.

7.3 Admittedly the prosecution has failed to prove the complaint in view of the death of the complainant. It was open for the prosecution to examine the successor of the complainant or anybody from the department in order to support the case of the prosecution. However, no such steps were taken to prove the case. Further, the prosecution has failed to prove that the work in question was in fact not done. All the documents on record shows that the work was carried out and measurement was also taken. Therefore, we are unable to accept the contention that the work was not carried out by the contractor.

7.4 A contention was raised on behalf of the APP that the payment was made by way of bearer cheque. However, merely by making the payment by bearer cheque it cannot be said that the respondents accused have committed offences either under IPC or under the provisions of Prevention of Corruption Act. Though the allegation is that bearer cheque is given, it is not proved that in fact the contractor was not paid nor has the contractor made a grievance that he had not received the payment. Therefore, looking to the overall facts and circumstances of the case the prosecution has failed to prove that there is any omission on the part of the respondents accused.

7.5 We have perused the judgement as well as the observations of the Special Court. So far as the alleged offences are concerned, we are of the opinion that the ingredients of the provisions of Sections 409, 420, 467, 477-A, 120B, 34, 114 and 165-A of Indian Penal Code and provisions of Section 5 of the Prevention of Corruption Act are not established. It is true that criminal conspiracy is defined in Section 120A of the Penal Code. The main ingredient to establish the criminal conspiracy is agreement and we have not found any iota of evidence to say that there was any agreement between the conspirator and the co-conspirators. Section 120B of IPC is required to be considered in light Section 10 of the Evidence Act. We have also perused the matter in the light of provisions Section 10 of the Evidence Act and also compared the evidence of prosecution in connection with the alleged offences, but we have not found any iota of evidence to come to a conclusion that the present respondents have committed the alleged offences.

7.6 The Special Court has also considered the aspect that the complaint was lodged almost after a period of three years and the delay for lodging the complaint was not at all explained.

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

9.0 In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.

9.1 We 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.

10.0 We 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 appeals are hereby dismissed.