1. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 5.11.2004 passed by the learned Chief Judicial Magistrate, Valsad in Criminal Case No. 1071 of 1993, whereby the learned Magistrate has acquitted the respondent – accused of the charges under sec. 409 and 477A of IPC, leveled against him.
2. The brief facts of the prosecution case are as under:
The respondent – accused was working as Deputy Mamlatdar in Revenue Department in the Office of Collector, Valsad. It is alleged that the respondent – accused was on deputation from 7th December, 1987 in the Civil Supplies Department of the State of Gujarat and he worked as Godown Manager in the said department from 7.12.1987 to 31.12.1988. From the Audit Report it was found that during the period 198788 the respondent – accused had committed various irregularities by tampering with the evidence and misappropriated 35 Quintile wheat. It is the case of the prosecution that the respondent – accused has deposited the amount by Challan on 27.1.1989 and also confessed the offence before the Regional Manager of the said department.
It is the case of the prosecution that permit No.184 dated 18.4.1988 was issued for 25 quintile wheat, however, the respondent – accused has tampered with the said permit and change the permit Number as “284” dated 19.8.1988, instead of permit No.184 dated 18.4.1988 and thereby the accused has committed the offence under Sections 409 and 477A of I.P. Code.
Therefore, a complaint with respect to the aforesaid offence was filed against the respondent. 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 Chief Judicial Magistrate, Valsad, which was numbered as Criminal Case No. 1071 of 1993. The trial was initiated against the respondent.
3. To prove the case against the present 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 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 05.11.2004.
5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court the appellant State has preferred the present appeal.
6. It was contended by Ms Hansa Punani, learned APP that the judgment and order of the trial Court is against the provisions of law; the trial 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 has argued that in the case of “Common Cause” a registered Society, through its Director vs. Union of India & Ors., reported in 1997(1)GLH 417, the Hon'ble Supreme Court, in para4 has observed as under:
“4. Directions (1) and (2) made herein above shall not apply to cases of offences involving (a) corruption, misappropriation of public funds, cheating, whether under the Indian Penal Code, Prevention of Corruption Act or any other statute, (b) smuggling, foreign exchange violation and offences under the Narcotics Drugs and Psychotropic Substances Act, (c) Essential Commodities Act, Food Adulteration Act, Acts dealing with Environment or any other economic offences, (d) offences under Arms Act, Explosive Substances Act, Terrorists and Disruptive Activities Act, (e) offences relating to the Army, Navy and Air Force, (f) offences against public tranquility, (g) offences relating to public servants, (h) offences relating to coins and Government stamp, (I) offences relating to election, (j) offences relating to giving false evidence and offences against public justice, (k) any other type of offences against the State, (l) offences under the Taxing enactments and, (m) offences of defamation as defined in Section – 499 IPC.”
Learned APP further argued that looking to the date of the order of Criminal Case, it is covered by the above decision of the Apex Court and, therefore, it appears that the learned trial Judge has committed an error in acquitting the accused.
7. 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 judgment of acquittal, the High Court should have borne in mind the wellsettled 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.”
8. 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.”
9. 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.
10. Even in a 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. 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.
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. 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.
13. 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 and learned Advocate for the respondent – accused. From the record produced before the trial Court, it is clearly established that (i) the original permit, in which irregularity has been committed is not produced, (ii) the amount of misappropriation deposited by the accused by Challan dated 27.1.1989 is not produced; (iii) the confessional statement of the accused made before the Regional Manager is not produced; (iv) Opinion of Hand Writing Expert was not obtained with regard to Notings at Article 12 (Exh. 18, 19, 20), (v) Account Books of witness Usmanbhai is not produced. I have perused the judgment and order passed by the learned Magistrate. It is clearly established on record that the respondentaccused has already been acquitted of the alleged offence and as per the observation of the Hon'ble Apex Court, it cannot now be reopened the trial against the accused – present respondent. Thus, from the oral as well as documentary evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
14. 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.
15. 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. 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.
16. 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. The Judgment and order dated 5.11.2004 passed by the learned Chief Judicial Magistrate, Valsad, in Criminal Case No. 1071 of 1993 is hereby confirmed. R & P to be sent back to the concerned Court forthwith. Bail Bond shall stand discharged.
(Z.K.SAIYED, J.) sas