1. The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 10.8.2001 passed by the learned Metropolitan Magistrate, Court No.5, Ahmedabad, in Criminal Case No.2171 of 1984, whereby the accused have been acquitted from the charges leveled against them.
2. Facts in brief of the prosecution case are such that the accused planned to construct cooperative housing society. The accused collected Rs.92,800/ by issuing share each of Rs.50/ from 28 members and also the accused collected Rs.1,10,000/ from 22 members and thereby each member paid Rs.5000/ to the accused. As per the complaint, the accused in all collected Rs.2,02,800/ from 51 members for constructing cooperative housing society. The accused had not started any procedure to construct the society. When the complainant and other members asked to the accused about the amount, which they had paid, the accused replied evasively and thereby the accused spent the amount for his personal use and thereby misappropriated the amount collected from the members of the society. The accused denied to give the amount to the members including the complainant, the offence under Sections 420, 406, 504 and 114 of the Indian Penal Code was registered against the accused. Thereafter, necessary investigation was carried out and statements of several witnesses were recorded. The trial was initiated against the respondent accused.
3. To prove the case against the present accused, the prosecution has examined, in all 9 witnesses and also produced several documentary evidence.
4. 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 Magistrate acquitted the respondent of all the charges leveled against him by judgment and order dated 10.8.2001.
5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Court of learned Magistrate, the appellant has preferred the present appeal.
6. Learned advocate Mr. Bhatt for HL Patel Association appearing on behalf of the appellant submitted that the accused had committed criminal breach of trust and committed an act of cheating which amounts to the offence under Section 420 and 406 of the Indian Penal Code. He read the oral evidence of witness of the witnesses and argued that as per the complainant evidence, the complainant has proved the main ingredients under Sections 405 of 415 of the Indian Penal Code. He further submitted that learned Magistrate has not considered that when the aspect of entrustment and dominion over the property is proved, then the learned Magistrate ought to consider that the respondent – accused have committed the criminal breach of trust. He read the provisions of Section 415 and submitted that when the ingredients of cheating is proved from the documentary and oral evidence, then learned trial Judge has wrongly observed that the prosecution has failed to prove the offence under Sections 406, 420 of the Indian Penal Code. He further submitted that the ingredients of entrustment and dominion over the property as prescribed under Section 405 of the Indian Penal Code are prima facie proved against the accused as well as the the aspect of cheating as provided under Section 415 of the Indian Penal Code are also proved against the accused and therefore, trial Court ought to have convicted the accused for the offence as alleged against them. He also read audit report at Exhibit 44 and argued that even the conduct of the accused is proved in line of the provisions under Section 8 of the Evidence Act. He therefore, submitted that the judgment and order of acquittal passed by the learned trial Judge is required to be quashed and set aside by allowing this Appeal.
7. Learned advocate Mr. Dave and Mr. Ahuja have supported the judgment and order passed by the lower Court. They have submitted that no interference is required to be called for from this Court as the lower Court has passed the judgment and order after appreciating the evidence on record. The ingredients of Section 405 are not at all established against the accused.
8. Learned APP Mr. Hansa Punani for the State has fairly stated that the State has not filed Appeal against the judgment and order of acquittal passed by the learned lower Court.
9. I have perused the record and considered the submissions made by the parties. I have perused the oral evidence of the witnesses examined by the trial Court. I have minutely perused the report at Exhibit 44 submitted by the auditor and per the evidence of said Auditor, it appears that there is no illegality committed by the accused because all the accounts were audited. Even the accused issued share certificate to the members of the society. The receipt of the amount were issued. The complainant did not produce the confessional statement of the accused as alleged by the complainant. The byelaws of the society were not produced for which the complainant alleged that the accused proposed to construct the society, but the evidence showing that the accused cheated the complainant was not produced. Therefore, it can be said that there is no evidence which establish that the accused committed offence as alleged and even the proposed plan for construction of cooperative housing society is not even on record. There is no any resolution produced on record, which show that it was resolved to make construction in 55 Sq. Mtr. instead of 200 Sq. Mtr. Therefore, the offence alleged against the accused person is not proved and therefore, learned Magistrate has rightly appreciated the evidence on record and rightly acquitted the accused.
10. 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 appellantState. Thus, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt.
11. 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.”
12. 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 her.
13. 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.
14. 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.)