[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 31.01.2004 passed by the learned Judicial Magistrate, First Class, Municipal Court, Surat in Municipal Case No. 789 of 2000, whereby the learned Magistrate has acquitted the respondent No.1 original accused from the charges levelled against accused.
[2] It is the case of the corporation and the complainant that the respondent was the owner of Green Belt and they are importing perfumery, electronics, electric equipments, hair dryer and crockeries. The squad of R.B.I Department of the Corporation had visited the accused premises for the purpose of checking. The squad of the corporation had asked the accused to produce the purchase bill of the imported goods, chalan and the receipt of the payment made towards the octroi amount. It is further the case of the complainant that the accused has submitted the bills and octroi receipt. The corporation, after verifying the bills and challans with the stock register, found that the bills are not as per the stock. It is further alleged in the complaint that the statement of the accused was recorded after assessment of the stock, the list was prepared. It is also alleged that the coordinator has also written a letter to the accused which was delivered on 20.09.1999 by hand delivery. However, the said letter was not responded by the accused, though the same was received by him. It is also further alleged that even after receipt of the said letter, the accused has not replied and has not produced any documentary evidence with regard to the payment made towards octroi. It is also alleged in the complaint that the accused has not followed all the necessary procedure for the purpose of payment of octroi and has committed theft of the octroi and has imported the goods without making payment of octroi. It is also alleged that the accused had not followed all the necessary procedure for the purpose of octroi with deliberate intention so as to see that the amount of octroi can be saved. It is also alleged in the complaint that at the time of importing the goods, the accused is required to fill up the declaration form, however, the accused has not submitted the declaration form as per the Octroi Rules and the Standing Order and thereby the accused has committed the offence under the provision as referred hereinabove.
[3] To prove the case against the present respondent – accused, the prosecution has examined the witnesses and also produced documentary evidence.
[4] At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Magistrate has acquitted the accused of all the charges levelled against him by Judgment and order dated 31.01.2004 in Criminal Case No.789 of 2000.
[5] Being aggrieved by and dissatisfied with the Judgment and order passed by the trial Court the appellant – original complainant has preferred the present Appeal.
[6] Heard learned advocate Mr.Prasant G. Desai for the appellant and learned APP Mr.L. B. Dabhi, for the respondent No.2 – State. Though served, nobody appears on behalf of the respondent No.1.
[7] Learned advocate for the appellant has submitted that learned trial Court has not exercised his jurisdiction vested with him. He has contended that the accused has committed breach of the Octroi Rules Nos.13(1)(E), 13(1)(2), 28(1), 28(2)(c) and also the breach of Standing Order Nos.4, 6 and (1). He has also contended that non-furnishing the declaration form as per the Octroi Rules and the Standing Order would amount to statutory presumption that the accused has committed the theft. Hew has contended that the trial Court has not properly appreciated the depositions of the complainant at Ex.50, Nanubhai Ex.60, Devabhai Rathod, Ex.64, Manharlal Kothiwala, Ex.74 and Suresh Dahyabhai Ex.76. He has contended that the accused has committed an offence in not paying the octroi amount. He has contended that the accused has not submitted the requisition form and has not replied the letter Ex.54 which was received by the accused and the acknowledgment to that effect is at Ex.55. He has contended that despite the letter Ex.54 and 63, the accused has not produced any documentary evidence to show that he has paid the amount of octroi and has also not tendered the octroi receipt showing the payment towards the octroi amount and, therefore, the accused has committed the offence of non-payment of octroi. He has, therefore, urged that the appeal be allowed and the judgment and order of the trial Court be confirmed.
[8] 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 & Anr, reported in (2006)6 SCC, 39, 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:
“54. 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.”
[9] Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
“42. 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.”
[10] 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.
[11] Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & 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:
“16. 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.”
[12] Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
[13] 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 reasoning, 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, reported in AIR 1981 SC 1417.
[14] 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.
[15] 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 before the trial court and also considered the submissions made by learned APP for the appellant. I have also perused the oral evidence of raiding party and the version of the complaint and the complainant, it is prima facie established that the prosecution has failed to prove and established the material issue regarding the date, quantity of the goods which were imported and the version of the declaration and due to non-availability of the said material, through which the prosecution could not prove the case beyond reasonable doubt. Looking to the oral as well as documentary evidence, it appears that the prosecution could not able to establish its case beyond reasonable doubt. So looking to the non-availability of the material evidence, the learned Judge has rightly observed in para-7 that it is not stated as to on which date, in how much quantity and from where the goods were imported and the declaration form is also not filled up. The learned Judge has also observed in said paragraph that the said fact has also not been proved by the prosecution beyond reasonable doubt. The learned Judge has also observed that even, the goods were imported from outside Surat, this fact is also not disclosed by any of the witnesses and in the complaint also, the said fact is not disclosed. It also appears that the prosecution has failed to prove that the accused had not filled up the declaration form, they have not stopped at the Octroi post and that they have committed the breach of Rule 13. Therefore, it appears that the trial Court has rightly come to the conclusion in acquitting the accused from the charges levelled against him. Hence, the present appeal deserves to be allowed and the judgment and order of the trial Court requires to be confirmed.
[16] The trial court has, after appreciating the oral as well as documentary evidence, has found that the witnesses have not supported the case of prosecution. The trial Court has also found that there are serious lacunae in the evidence of the witnesses. Nothing is produced on record to rebut the concrete findings of the trial Court.
[17] Thus, the appellant could not bring home the charge against the respondent – accused in the present Appeal. The prosecution has miserably failed to prove the charge levelled against the respondent – accused. Thus, from the evidence itself it is established that the prosecution has not proved its case as alleged against the accused beyond reasonable doubt.
[18] Learned counsel appearing on behalf of the apellant is not in a position to show any evidence to take a contrary view in 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.
[19] In 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.
[20] I am, 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.
[21] In view of above the Appeal is dismissed. Bail bonds, if any, shall stand cancelled. Record & Proceeding may be sent back to the trial Court.
[ Z. K. SAIYED, J. ] (vijay)