1. By way of present revision application, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the applicant has prayed to quash and set aside the order 21st March, 2002 passed by the learned Chief Judicial Magistrate, Surat in Criminal Case No.684 of 1990 and also further prayed to convict the accused persons for the offence punishable under Sections 408, 465, 401, 471, 472(A) and 34 of the Indian Penal Code.
2. It is the case of the prosecution that the respondents- accused were working with Gujarat State Road Transport Corporation. The respondents-accused were deputed on the post of Booking Clerk at Surat Depot and were assigned work of advance ticket booking of the passengers after collecting fare and also to make necessary entries in the voucher books issued by the S.T. Corporation. It was found that the accused persons by manipulating the advance booking voucher books and the method of booking being changed with dishonest intention, misappropriated lakhs of rupees and had submitted false accounts. Therefore, a criminal complaint was filed against the accused and thereafter criminal case was tried.
3. After hearing both the sides, the learned Chief Judicial Magistrate, Surat vide his order dated 21st March, 2002 passed in Criminal Case No.684 of 1990 acquitted the respondents-accused from the charges levelled against them.
4. Being aggrieved by and dissatisfied with the said order, the applicant – S.T. Corporation has preferred the present revision application before this Court.
5. Heard Mr.Ashish Dagli, learned counsel for the applicant, Mr.H.L. Jani, learned Additional Public Prosecutor for respondent No.1-State and Mr.Bharat Jani, learned counsel for respondent Nos.2 and 3.
6. Mr.Dagli, learned counsel for the applicant, states that though the applicants have collected the amount for tickets issued, they have not deposited the amount with the Corporation and thereby misappropriated the funds of the Corporation. He has contended that the prosecution has proved its case before the learned Magistrate through oral as well as documentary evidence, but the learned Magistrate has erred in not appreciating the evidence produced before him and has acquitted the respondents-accused. He has further contended that voucher books issued by the S.T. Corporation were entrusted to the respondents- accused and they have misused the entrustment of voucher books. The said voucher books were given them to perform their duty, which have been forged and manipulated the said voucher books by the respondents-accused. He has further contended that though it appears from the documentary evidence that the respondents-accused have forged the documents and have misappropriated the amount, the learned Magistrate has committed grave error and acquitted the respondents-accused. He has contended that the learned Magistrate has not properly appreciated the evidence produced before him. He, therefore, contended that looking to the facts of the case, the order passed by the learned Chief Judicial Magistrate, Surat is required to be quashed and set aside and the respondents-accused may kindly be convicted for the offence alleged against them.
7. As against this, Mr.Bharat Jani, learned counsel for the respondent Nos.2 and 3-accused, states that the prosecution has failed to prove its case beyond reasonable doubt. He has contended that the complainant has expired prior to his examination and therefore, the complaint cannot be considered. He has read the oral evidences of the witnesses and contended that prosecution has failed to establish entrustment and dominion over the property to the respondents-accused. He has further contended that main ingredients of forgery are not establish beyond reasonable doubt and therefore, the say of the learned counsel for the applicant that the respondents-accused had committed forgery is baseless. He has contended that after considering the evidence produced on record and after hearing the parties, the learned Magistrate has passed absolutely just and proper order and is not required to be interfered with.
8. Heard Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent No.1-State and also perused papers produced before me.
9. It is true that complainant has expired prior to his examination, but non-examination of the complainant is not fatal to the case. It is the duty of the prosecution to prove its case beyond reasonable doubt through oral as well as documentary evidence and from the oral evidence of the witnesses. In this case, it appears from the papers that the prosecution has failed to prove ingredient of entrustment and dominion over the property. Even the prosecution has failed to prove the ingredient of provision of Section 405 of the Indian Penal Code. The prosecution has failed to connect the respondents-accused with the offence alleged against them of forgery.
10. In view of above observation, present revision application is dismissed. The order dated 21st March, 2002 passed by the learned Chief Judicial Magistrate, Surat in Criminal Case No.684 of 1990 is hereby confirmed. Interim relief, if any, shall stand vacated. Rule is discharged. Record and Proceedings, if any, be sent back to the Court concerned forthwith.
(Z. K. Saiyed, J) Anup