As against the judgment of acquittal dated 24.05.2002 pronounced by the learned X Metropolitan Magistrate, Egmore, Chennai in C.C.No.8406/2000, the defacto complainant who was also examined as PW-1, has preferred this criminal appeal under Section 378 Cr.P.C.
2. The factual matrix leading to the filing of the criminal appeal can be briefly stated as follows:
i) The Inspector of Police, Law and Order, Thirumangalam Police Station, Chennai 600 101, who figures as the second respondent in this appeal registered a case against the first respondent herein/accused based on the complaint of the appellant herein (defacto complainant) dated 08.10.1999, in Crime No.1263/1999 for offences punishable under
Sections 406,420 and
506(ii) IPC on the file of Thirumangalam Police Station, Chennai-101.
ii) In the said complaint it had been stated that PW-2 - Senthil, had entrusted a sum of Rs.15,00,000/- to the appellant (PW-1) on 20.07.1999 to keep it in safe custody for a few days, as he was leaving on a pilgrimage to Sabarimalai; that since the appellant/PW-1 did not want to keep that much of cash in her hands, she handed over the same to the first respondent/accused, who was running a finance company in the name and style of "Deena Dayal Finance Limited" on the understanding that he would return the cash to the appellant/PW-1 within 3 or 4 days; that the first respondent/accused, thereafter made the appellant/PW-1 to believe that he could get a medical seat in Chennai for her son for a sum of Rs.15,00,000/-; that the appellant/PW-1 believing him to be influential, asked him to use the money which was entrusted by her for keeping in safe custody; that after four days, the first respondent informed the appellant/PW-1 that it was not possible for him to get the medical seat for the son of the appellant as promised and promised to return the above said amount entrusted to him and that thereafter, when the appellant/PW-1 continuously pleaded for four days for the return of money, the first respondent/accused caused a threat to inform the officials of the Income Tax department as the amount was unaccounted. It was the further contention raised in the complaint that after some amount of persuasion, the first respondent/accused promised to pay back the amount on 27.07.1999, but on the said date he paid only a sum of Rs.3,00,000/- and informed the appellant/PW-1 to collect the balance on 28.07.1999 and that the first respondent/accused also informed the appellant over phone that he would withhold a sum of Rs.2,00,000/- and make payment of the balance alone and that if the appellant/PW-1 would demand that amount also, she would have to face problems with the Income Tax department. The further allegation made in the complaint is that on 28.07.1999 when the appellant, along with her employee by name Kumar, went to the office of the first respondent/accused to collect the balance amount, he handed over a sum of Rs.10,00,000/- alone and on the demand made by the appellant/PW-1 for the balance sum of Rs.2,00,000/- he informed that it would be given at a later point of time; that as threatened by the first respondent/accused, when the appellant/PW-1 reached her house she saw the Income Tax officials waiting for her; that the income tax officials seized and impounded the said amount and deposited the same in the name of the appellant/PW-1 with Reserve Bank of India, stating that the said amount would be released only if it was shown in the accounts of the appellant to the regular Assessment Officer; that thereafter the first respondent/accused contacted the appellant over telephone and informed her not to give any police complaint and to withdraw the complaint, if any, already given stating that if it was not done, he would destroy the peace of her day to day life and do harm to her physically and that only thereafter, the appellant/PW-1 chose to give a complaint to the second respondent for cheating her of Rs.2,00,000/- and causing criminal intimidation.
iii) Based on the above said written complaint, marked as Ex.P1 in the trial before the Trial court, the second respondent, who also figured as PW-7, took up the investigation and submitted a final report alleging commission of the above said offences by the first respondent/accused.
iv) The learned X Metropolitan Magistrate, Egmore, Chennai, framed charges for offences punishable under
Section 406,420 and
506(i) IPC and tried the case, as the first respondent/accused pleaded not guilty. As many as eight witnesses were examined as PW-1 to PW-8 and seven documents were marked as Ex.P1 to Ex.P7 on the side of the prosecution. Rs.2,00,000/- (20 bundles of 100/- rupees notes) allegedly recovered from the first respondent/accused were produced as M.O.1 series.
v) Thereafter the first respondent/accused was questioned under
Section 313(1)(b) Cr.P.C. regarding the incriminating materials available in the evidence adduced on the side of the prosecution. One Ramachandra Rao was examined as the sole defence witness (D.W.1) and two documents were marked as Ex.D1 and Ex.D2 on the side of the accused.
vi) The trial court considered the evidence brought before it in the light of the arguments advanced on either side and upon such a consideration, came to the conclusion that none of the charges made against the first respondent herein/accused was proved beyond reasonable doubt and acquitted him of all the charges giving the benefit of doubt, by its judgment dated 24.05.2002.
5. Aggrieved by and challenging the correctness of the said judgment of acquittal, the appellant herein/defacto complainant (PW-1) has chosen to file the present appeal under
Section 378 of Cr.P.C.
6. Advancing arguments on behalf of the appellant Mr.B.V.Suresh Kumar, learned counsel submitted that the judgment of the court below was erroneous and liable to be set aside by this court; that the court below failed to properly appreciate the evidence adduced on the side of the prosecution; that the insignificant and trivial contradictions were blown out of proportion to come to the erroneous conclusion that the charges made against the first respondent/accused were not proved beyond reasonable doubt; that the court below failed to note that all the witnesses examined on the side of the prosecution corroborated each other in material parts and that the judgment of acquittal pronounced by the court below was infirm and defective deserving disapproval by this court.
7. Per contra, it is the contention of the learned counsel for the first respondent/accused that the appeal itself is not maintainable and the same deserves to be dismissed in limini, as no appeal by a witness in a case instituted on a police report shall be entertained; that only in cases instituted otherwise than on a police report i.e. if a case is instituted on private complaint, the complainant can file an appeal against acquittal, that too, only with the leave of the court; that instead of filing a revision against acquittal in the instant case, the appellant/PW-1 has chosen to erroneously file an appeal challenging the judgment of acquittal and that hence the appeal should be dismissed.
8. Mr.J.C.Durairaj, learned Government Advocate (Crl. Side) representing the second respondent would support the arguments advanced by the learned counsel for the first respondent/accused regarding the maintainability of an appeal by the defacto complainant in a case instituted on police report. However, the learned Government Advocate represented that the second respondent had no interest in this appeal either in favour of the appellant or in favour of the first respondent and that any order, which this court would deem fit to pass in this appeal might be passed.
9. In view of the above stand taken by the first respondent regarding the maintainability of the appeal, the learned counsel for the appellant submitted that though an appeal has been preferred erroneously and instead a revision alone shall be maintainable, the appeal petition itself can be converted into a revision and necessary orders may be passed.
10. The learned counsel for the first respondent/accused, as a reply to the above said submission would state that though there is a specific provision in the Cr.P.C. for converting a revision into an appeal, there is no corresponding provision for converting an appeal into a revision and that even assuming that this appeal can be converted into a revision, the well-considered judgment of acquittal of the trial court does not warrant any interference.
11. Chapter 29 of the Code of Criminal Procedure deals with the appeals from judgment or order of criminal court.
Section 372 says that no appeal shall lie from any judgment or order of a criminal court except as provided for by the code or by any other law for the time being in force.
12.
Section 374 of Code of Criminal Procedure deals with appeals from convictions, which we are not concerned with.
Section 377 deal with the appeal by the state Government on the ground of inadequacy of sentence.
Section 378 of Code of Criminal Procedure alone is the sole repository of the appeals in cases of acquittal. Sub-Clauses 1 to 3 of
Section 378 deal with appeal against acquittal by the State. Sub-clause 4 alone deals with an appeal against acquittal by a private party. Sub-clauses 4 to 6 are relevant for the purpose of consideration in this case. They read as follows:
" (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)."
13. A reading of the entire
Section 378 of Cr.P.C and especially sub-clauses 4 to 6 will make it clear that no appeal by a witness shall lie against a judgment or order of acquittal made in a case instituted on police report. Only in cases instituted on private complaint, an appeal by the complainant shall be entertained, provided the High Court grants special leave under clause (4) of
Section 378 of Cr.P.C to file such an appeal against acquittal. Even in cases that come under sub-clauses (1) and (2) of
Section 378, namely cases instituted on police complaint, no appeal against acquittal to the High Court shall be entertained except with the leave of the High court as per sub-clause (3) of
Section 378.14. A reading of the entire
Section 378 will make it abundantly clear that the present appeal filed by the appellant against the judgment of acquittal pronounced by the court below is not maintainable. Therefore, we have to consider whether the request made by the learned counsel for the petitioner for converting the appeal into a revision can be entertained. As rightly pointed out by the learned counsel for the first respondent/accused, there is specific provision in
Section 401 sub-clause (5) which reads as follows:
"where an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."
But a corresponding provision enabling the court to treat an appeal petition as an application for revision is not there in the Code of Criminal Procedure.
15. However, when a similar case came before the Hon'ble Supreme Court in Jagbir and another v. State of Punjab reported in AIR 1998 SC 3130, it was held therein that no appeal by a complainant in a case taken cognizance of on a police report against an order of acquittal shall be entertained by the High Court. But, ultimately in the said case, the Hon'ble Supreme Court directed the High Court to treat the Appeal petition filed by the complainant as an application for revision of the order of the Sessions Judge and dispose of the same in accordance with law. The relevant paragraph reads as follows:-
" Since the appeal must succeed on a pure question of law, we need not go into the facts of the case. Admittedly, the cognizance in the instant case was taken upon a police report under
Section 190(1)(b), Cr.P.C. Resultantly, it was the State alone who could file an appeal in the High Court against the order of acquittal under
Section 378(1), Cr.P.C after obtaining the leave under sub-
section 3 thereof and not the complainant who could only file an application under
Section 401, Cr.P.C. for revision of that order. The High Court, therefore was not at all justified in entertaining the appeal of the complainant and disposing the same in the manner aforesaid. On this score alone, we allow this appeal and restore the order of the trial court. The High Court will now treat the memorandum of appeal filed by the complainant as an application for revision of the order of the Sessions Judge, qua the two appellants only, and dispose of the same in accordance with law."
16. From the above said judgment of the Hon'ble Supreme Court, even though there is no specific provision for treating a petition of appeal as an application for revision, if the High court is of the view that if the interest of justice requires so to do the appeal petition can be treated as an application for revision under
Section 401. In the instant case, it is obvious that an appeal has been filed on an erroneous belief that such an appeal by the defacto complainant is maintainable against the judgment of acquittal. The Registry of this court has also contributed to such a mistake by entertaining the appeal petition without returning the same questioning the maintainability of the appeal by the defacto complainant as the case was instituted on a police report. Therefore, this court hereby comes to the conclusion that the appeal petition filed by the appellant herein is to be treated as a revision against acquittal and the appeal is hereby directed to be renumbered as a criminal revision case.
17. The scope of appeal under
Section 378 Cr.P.C is wide enough to allow the appellate court to re-appreciate the evidence and come to an independent conclusion. However, there are several cases in which the Hon'ble Supreme Court has made it clear that the courts must be careful in reversing the judgment or order of acquittal and that the order of acquittal should not be interfered with merely because another view than the one taken by the trial court is possible.
18. In Shingara Singh v. State of Haryana and another with Subha Singh v. State of Haryana and others, reported in AIR 2004 SUPREME COURT 124, it has been held that "where two views are reasonably possible on the basis of evidence on record, the one that favours the accused must be accepted. It was also held that in any event in a case of acquittal, if the view of the trial court is possible, reasonable view on the basis of evidence on record, interference by the High Court may not be justified."
19. In C.Anotony v. K.G.Raghavan Nair reported in AIR 2003 SUPREME COURT 182, the Hon'ble Supreme Court has held that "though the appellate court has full power to re-appreciate evidence but without coming to a definite conclusion that findings by the trial court are perverse, it cannot substitute the findings of the trial court by taking a totally different perspective and convict the accused. When such is the possible in case of appeal against acquittal, stronger grounds are needed to interfere with the order of acquittal by exercising the power of revision."
20. The Hon'ble Supreme Court in Harihar Chakravarty v. The State of West Bengal reported in A.I.R. 1954 S.C. 266 has taken a view: "the revisional jurisdiction of High Court against acquittal cannot be ordinarily invoked or used merely because the lower court has taken a wrong view of law or misappropriation of evidence on record. Unless it comes to the conclusion that there was perversity in the finding of the court below and that the same has resulted in miscarriage of justice."
21. In K.Chinnaswamy Reddy v. State of Andhra Pradesh reported in 1962 SC 1788, it was observed by the Hon'ble Supreme Court as follows:
"It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have though fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been flagrant miscarriage of justice."
22. The same was quoted with approval again by the Hon'ble Supreme Court in Kishan Swaroop v. Govt. of NCT of Delhi reported in AIR 1998 SC 990. It is the well known principle of criminal jurisprudence that unless and until the accused is proved to be guilty, there is a presumption that he is innocent. When the case resulted in acquittal in the trial Court, the said presumption gets doubly strengthened and no interference with the judgment or order of acquittal can be made unless glaring defect in the procedure or manifest error on a point of law or perversity in the finding is noticed.
23. If the above said principles are applied to the case on hand, as rightly pointed out by the learned counsel for the first respondent/accused no interference with the judgment of acquittal pronounced by the court below shall be justified.
24. The appellant (defacto complainant) is an Income Tax assessee. According to her case, her friend, namely PW-2 who was running a finance company entrusted a sum of Rs.15,00,000/- to her to be kept in safe custody for 3 or 4 days, as he was going on a pilgrimage to Sabarimalai. When such was the case, she would not have chosen to entrust the said amount to the first respondent/accused who was also running a finance company. The reason for entrusting the amount to the first respondent/accused, as pleaded by the defacto complainant is also not probable, as rightly held by the court below. If at all she had given the amount to be kept in safe custody for 3 or 4 days alone, she would not have chosen to give her consent for using the said amount for securing a medical seat for her son in Chennai. Within four days after the alleged entrustment, according to the defacto complainant, she came to know that the first respondent/accused could not get a medical seat for her son and demanded the payment of the said amount. She has also stated that the accused who had made a promise to pay the amount within 3 to 4 days, chose to cause a threat that he would inform the Income Tax department, if she insisted upon the repayment of the said amount. There is no explanation as to what prompted her not to lodge a complaint then and there itself. According to the prosecution theory, out of Rs.15,00,000/- a sum of Rs.3,00,000/- was repaid by the accused on 27.07.1999 and another sum of Rs.10,00,000/- was paid on 28.07.1999 and the said amount was also seized by the Income Tax department officials, based on the information furnished by the first respondent/accused. If it was true, the appellant could have very well lodged a complaint immediately. On the other hand, she waited till 08.10.1999 (nearly 2 = months) and only thereafter gave a complaint. Immediately on registration of a case, recovery of a sum of Rs.2,00,000/-, marked as M.O.1 series purporting to be the balance amount retained by the first respondent/accused from the amount entrusted by the defacto complainant was made. But it is quite improbable for a person running a finance company to keep the said cash in tact for about three months.
25. It is not the case of the prosecution, not even the evidence of PW-1, that the very same currency notes she had given to the first respondent/accused were returned to her on 27.07.1999 and 28.07.1999. It is also not the evidence of the prosecution witnesses that M.O.1 series were the currency notes entrusted by the defacto complainant to the first respondent/accused.
26. On the other hand, clear evidence has been adduced by the accused through DW-1 and by producing Ex.D1 and D2 to make it probable that after arresting the first respondent/accused, the Investigating Officer got a self cheque signed by the first respondent/accused for a sum of Rs.3,00,000/- and got it encashed in the bank. The said defence plea need not be proved beyond reasonable doubt. If such plea is made probable by the evidence adduced on the side of the accused, the same is enough to hold that a reasonable suspicion has arisen regarding the alleged recovery made. Though an attempt has been made to account for the money through PW-2, the attempt has ended in utter failure, as the explanation offered by his is not convincing.
27. The so-called independent witnesses, namely PW-3 and 4 are employees of PW-1 and 2 respectively. Hence, the court below has rightly observed that they are interested witnesses and as such before accepting their evidence, the same must be put to the test of careful scrutiny. The court below has also come to the conclusion that after careful scrutiny, their evidence is not reliable. The court below has approached the problem in right perspective, appreciated the evidence in a proper manner and upon such appreciation, has come to a correct conclusion that the prosecution has failed to prove the charges against the first respondent herein/accused beyond reasonable doubt and that benefit of doubt should be given to the first respondent herein/accused. This court does not find any defect or infirmity, much less perversity in the manner of appreciation of evidence made by the court below and in the above said finding arrived at by the court below.
28. Upon considering all the above said aspects, this court also comes to the conclusion that there is no misappreciation of evidence made or wrong view of law taken by the court below and that there is no manifest illegality or gross miscarriage of justice caused by the judgment of acquittal pronounced by the court below. This court also comes to the conclusion that it is not an exceptional case wherein a glaring defect in the procedure or a manifest error P.R.SHIVAKUMAR, J.
asr/ on a point of law and consequently a flagrant miscarriage of justice can be noticed.
29. Therefore, unhesitatingly, this court comes to the conclusion that no interference can be made with the judgment of acquittal of the court below even in exercise of revisional powers of this court under
Section 401 Cr.P.C.
30. For all the reasons stated above, the appeal petition converted into an application for revision fails and accordingly the same is dismissed.
20.04.2009 asr/ Index : Yes Internet : Yes To X Metropolitan Magistrate, Egmore, Chennai JUDGMENT in Crl.A.No.1257/2002 (Converted as Crl.R.C.
No.393 of 2009)