1. The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 16.1.1992 passed by the learned Principal Judge, City Sesions Judge, Ahmedabad, in Criminal Appeal No.23 of 1991, whereby the accused has been acquitted from the charges leveled against him.
2. The brief facts of the prosecution case are as under:
2.1 On 9.12.1986, the accused collected Rs.2400/ from one Chimanlal Damodardas Barot in connection with flat No.I/7, and on 12.9.1987 the accused collected Rs.417/ from Arunkumar Bhatt in connection with flat No.I/4, of Bankim Cooperative Housing Society by way of installments etc. The accused did not credit said amount in account of the society and thereby he tampered with the records of society and committed breach of trust. Therefore, the offence under Sections 406 and 465 of the Indian Penal Code was registered against the accused. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondent was arrested and, ultimately, chargesheet was filed against him before the court of learned Metropolitan Magistrate, Ahmedabad. The trial was initiated against the respondent.
2.2 To prove the case against the present accused, the prosecution has produced several documentary evidence and examined, following witnesses.
P.W.1 Ashokbhai at Exhibit 23
P.W.2 Chimanlal Damodardas Barot at Exhibit 39
P.W.3 Arunkumar Natvarlal at Exhibit 40
P.W.4 Manohar Devidas at Exhibit 47
P.W.5 Manohardas Tahvani at Exhibit 41
P.W.6 Indravadan Soni at Exhibit 50
P.W.7 Chunilal Ranchhoddas Patel at Exhibit 76
2.3 At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Metropolitan Magistrate,Court No.9, Ahmedabad, passed order dated 31.5.1991, whereby the learned Magistrate ordered the accused to suffer sentence for a period two years R.I. and fine of Rs.3000/, i/d., to further undergo one month R.I. for the offence punishable under Section 403 of the Indian Penal Code. The accused was ordered to undergo sentence for a period of two years R.I. and fine of Rs.2000/, i/d., to further undergo one month R.I. for the offence punishable under Section 465 of the Indian Penal Code. Against the said order of conviction, the accused preferred Appeal being Criminal Appeal No.23 of 1991 before the City Sessions Court at Ahmedabad. The Appeal came up for hearing before the learned Principal Judge, City Sessions Court, Ahmedabad, and learned Principal Judge acquitted the accused from the charges levelled against him by passing judgment and order dated 20.4.1992.
2.4 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the City Sessions Court the appellant State has preferred the present appeal.
3. 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. She further submitted that learned City Sessions Judge brushed aside wrongly the judgment and order passed by the learned Metropolitan Magistrate. She further submitted that the complainant Ashok is a Secretary of the society and he was quite conversant with the handwriting of the accused, but also conversant with the handwriting of the members also. She also submitted that the accused had taken money towards the installments but he did not credit the same in the account of the society. The prosecution proved the offence under Section 403 and 465 of the Indian Penal Code. He further submitted that all the account books and receipts were sent to handwriting expert and handwriting expert as per opinion at Exhibit 43, stated that the document Exhibit 26 and 27, in which the handwriting of the accused, but the learned Sessions Judge did not consider the same in true manner. The accused was not holding any post of the society. She therefore, submitted that the judgment and order of acquittal is required to be quashed and set aside by passing the order of conviction and sentence upon the accused.
4. As against, learned advocate Mr. Yatin Soni appearing on behalf of the respondent submitted that the learned Sessions Judge has rightly appreciated evidence and rightly acquitted the accused from the charges levelled against him. Therefore, the judgment and order of acquittal is required to be confirmed and no interference is required to be called for from this Court.
5. 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 reappreciate 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. 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.
7. It is also a settled legal position that in acquittal appeal, the appellate court is not required to rewrite 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, reported in AIR 1981 SC 1417 wherein it is held as under:
“… This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) 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.”
8. 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 appellantState. From the record, it appears that there was no any reliable and satisfactory evidence that the payment of Rs.1984/ was made to the accused by Chimanlal Damodardas. Therefore, the acceptance of the amount on the part of the accused of the said amount was not proved and therefore, the question of not accounting the same by the accused, cannot arise for holding the accused guilty for the offence alleged against him. Looking to the handwriting expert opinion, it appears that the receipts were not forged and bogus. Therefore, the charges levelled against the accused, cannot be said to be proved and hence, this Court is of the view that the accused had not committed any offence as alleged.
9. 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.
10. In the 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.
11. 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.
12. 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. Bail bond, if any, stands cancelled. Record and proceedings to be sent back to trial Court, forthwith.
ynvyas (Z.K. SAIYED, J.)