Gujarat High Court
State Of Gujarat vs Dineshbhai Harishbhai Rav on 2 July, 2025
NEUTRAL CITATION
R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 193 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
DINESHBHAI HARISHBHAI RAV
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Appearance:
MR PRANAV DHAGAT, APP for the Appellant No. 1
MR PRATIK B BAROT(3711) for the Opponent/Respondent No. 1
MR.MAULIN BAROT(3835) for the Opponent/Respondent No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 02/07/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') against the judgment and the order dated 11.06.2010 in Criminal Appeal No.239 of 2009 passed by the learned Additional Sessions Judge, Court No.15, Ahmedabad City (hereinafter referred to as 'the learned First Appellate Court'), whereby, the learned First Appellate Court has Page 1 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined quashed and set aside the judgment and order 31.08.2009 in Criminal Case No. 796 of 2001 passed by the learned Chief Metropolitan Magistrate, Ahmedabad, (hereinafter referred to as 'the learned Trial Court) whereby, the learned Trial Court convicted the accused and sentenced to undergo rigorous imprisonment of three years for the offence punishable under Section 420 of the Indian Penal Code (hereinafter referred to as 'the IPC'). The respondent is hereinafter referred to as 'the accused' as he stood in the rank and file in the original case, for the sake of convenience, clarity and brevity.
2. The relevant facts leading to filing of the present appeal are as under:
2.1. The complainant Mahavir Mahadevbhai Balay was residing at Ahmedabad and his friend Kamleshbhai Chhotalal was residing in Bapunagar Housing Board. The accused and other co-
accused were known to Kamleshbhai Chhotalal and the accused and the other co-accused came and told the complainant that there is good scope for Indians in America and he had to pay an amount of Rs.2,00,000/- and the remaining amount was to be paid after Page 2 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined reaching America. The complainant told his other friends Anil Ramswaroop, Praful Alakprasad and Kamleshbhai and all four of them decided to go to America and took Rs.25,000/- each and went to the house of Kamleshbhai where the accused and other accused made them affix their signatures on some forms, which had the heading of Bible Information Society Canada and America and they were told that they would have to go to America as Christians and they would get free food and clothes and could also get married there. That all of them gave an amount of Rs.5,80,000/- and the accused and co-accused told them that they would reach America within 4-6 months but for a long time the deal could not materialize. The complainant and others demanded their amounts and cheques were given to them and the cheques were deposited in the bank but they returned unpaid. As the accused and co-accused had cheated the complainant and others, a private complaint was filed before the Court of learned Chief Metropolitan Magistrate and an order under section 156(3) of the Code of Criminal Procedure was passed, pursuant to which, an FIR came to be registered under section 406, 420, 34 of the IPC as Bapunagar Police Station M-Case No. 2 of 2001. Page 3 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025
NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined 2.2. After registration of the FIR, the investigation was carried out by the concerned Investigating Officer and after having sufficient material against the accused and co-accused who absconded, the charge sheet came to be filed before the Court of the Chief Metropolitan against the accused with the names of the co-accused in the column of absconding accused. 2.3. The accused was duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code. A charge was framed by the learned Trial Court at Exh.3 and the statement of the accused was recorded at Exh. 4, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution examined 6 witnesses and produced 4 documentary evidences in support of the case.
2.4. After the closing pursis was submitted by the learned APP, the further statement of the accused under Section 313 of the Code was recorded wherein the accused denied the evidence on Page 4 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined record. After hearing the arguments of the learned APP and learned advocate for the accused and after perusing the documents on record, the learned Trial Court, by the impugned judgment and order dated 31.08.2009, was pleased to convict the accused and sentenced him to simple imprisonment for three years and for the offence punishable under Section 420 of the IPC. 2.5. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the accused preferred Criminal Appeal No.239 of 2009 before the City Sessions Court, Ahmedabad, whereby, the appeal preferred by the accused came to be allowed and the learned Additional Sessions Judge, Court No. 15 quashed and set aside the judgment and order dated 31.08.2009 passed by the learned Chief Metropolitan Magistrate in Criminal Case No. 796 of 2001.
3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned First Appellate Court, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order passed by the First Appellate Court is ex-facie, illegal, arbitrary and without properly Page 5 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined appreciating the facts of the case and the materials available on record. The First Appellate Court has erred in appreciating the fact that when the accused persons are found to have been guilty and to have the deterrent effect on the society as well as to curb such offence of cheating in the name of sending persons to foreign country ought not to have been acquitted. The First Appellate Court has erred in considering the fact that the accused had, in collusion with a common intention, committed the offence as alleged against him and thereby caused financial loss to the complainant and other persons. The First Appellate Court has erred in considering the fact that the accused had committed breach of trust, created forged and bogus documents and obtained signatures of complainant and others and has erred in appreciating the oral as well as documentary evidences produced by the prosecution in its true spirit and straightway arrived at the conclusion that the prosecution has failed to prove the case beyond reasonable doubts. The First Appellate Court ought to have appreciated the fact that the witnesses are examined and the witnesses and the documentary evidences produced on record of the case go against the accused and therefore, the order of acquittal Page 6 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined passed by the learned First Appellate Court requires to be quashed and set aside.
4. Heard learned APP Mr.Pranav Dhagat for the appellant - State and learned advocate Mr.Pratik Barot for the respondent - accused. Perused the impugned judgment and order of acquittal passed by the First Appellate Court as well as judgment and order of conviction passed by the learned Trial Court and have re-appreciated the entire evidence of the prosecution on record of the case.
4.1. Learned APP Mr.Pranav Dhagat for the appellant - State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the First Appellate Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the the case and has successfully proved the case against the accused but the First Appellate Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by the learned Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed Page 7 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined by learned Judge is based on inferences, not warranted by facts of the case and also on presumption, not permitted by law. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the accused guilty for the said offence. Learned APP has urged this Court to allow the present appeal and impose maximum sentence on the accused. 4.2. Learned advocate Mr.Pratik Barot for the respondent - original accused has submitted that the learned First Appellate Court has appreciated all the evidence in true perspective and has not committed any error in acquitting the accused. Therefore, no interference of this Court is required in the impugned judgment and the order of acquittal passed by the learned First Appellate Court and has urged this Court to reject the appeal.
5. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415, the Apex Court has observed as under:
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NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313 :
AIR 2006 SC 831, this Court stated; "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the First Appellate Court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the First Appellate Court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the First Appellate Court". (emphasis supplied) ........ From the above decisions, in our considered view, the following general principles regarding powers of 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 ac- quittal 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 cir-
cumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an ap- pellate Court in an appeal against acquittal. Such phrase- ologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to in- terfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own con- clusion.
(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 avail- able to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be Page 9 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquit- tal, the presumption of his innocence is further rein- forced, reaffirmed and strengthened by the First Appel- late 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 First Ap- pellate Court.
6. It is a settled principle of law that in an appeal against acquittal, the Appellate Court is circumscribed by limitation that no interference has to be made in the order of acquittal unless after appreciation of the evidence produced before the learned Trial Court, it appears that there are some manifest illegality of perversity which could not have been possibly arrived at by the Court. It is also a settled principle that there is no embargo on the Appellate Court to review the evidence but, generally the order of acquittal shall not be interfered with as the presumption of innocence of the accused is further strengthened by the order of acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case of the prosecution i.e.
(i) guilt of the accused and (ii) his innocence, the view, which is in favour of the accused, should be adopted, and if the First Page 10 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined Appellate Court has taken the view in favour of the accused, the Appellate Court should not disturb the findings of the acquittal. The Appellate Court can interfere with the judgment and order of acquittal only when there are compelling and substantial reasons and the order is clearly unreasonable and where the Appellate Court comes to conclusion that based on the evidence, the conviction is a must.
7. In light of the above, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW-1 Mahavir Mahadevbhai at Exh.5 and the witness is the complainant, who has narrated all the facts of the complaint on oath. During the cross-examination by the learned advocate for the accused the witness has stated that Manubhai Somabhai Parekh is residing in 'Prashant Colony' and the accused is residing near him. Whatever dealings had taken place, had taken place with David, who was from Ahmedabad, and the cheque, which is produced at Exh.7, bore the signature of Manubhai Somabhai Parekh, and the other cheques are produced at Exh.8 and Exh.9. 7.1. The prosecution has examined PW-2 Anilkumar Page 11 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined Ramswaroop Tiwar at Exh.10 and the witness has stated that he is known to the accused, and at that time, the accused was residing at Nadiad. The witness wanted to go to America and he had told the accused and an amount of Rs.4,00,000/- was demanded and the amount of Rs.1,75,000/-was given at the house of Chhotalal Barot and the other amount of Rs.1,55,000/- was given at 'Sriram Handloom House'. They were supposed to go to America in January, 2001, but the trip did not materialise, and hence, the amount was demanded back, but it was not repaid by the accused. During the cross-examination by the learned advocate for the accused, the witness has stated that the complaint was filed against Dineshbhai Rav, Manubhai Somabhai Parekh and David Peter, but he has not met Davidbhai till today. The amount was given by him and he knows Kamleshbhai and the cheque was given by Dineshbhai, but he does not know whose signature is affixed in the cheque, which is produced at Exh.11. The accused is is a neighbour of of Manubhai.
7.2. The prosecution has examined PW-3 Prafulkumar Alakhprasad Sharma at Exh.12 and the witness has stated that he Page 12 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined had given the accused an amount of Rs.1,00,000/- to go to America in the presence of Chhotalal. That as the transaction to go to America did not take place, he had demanded for the amount and a bogus cheque was given to him by the accused, but he does not know whose signature is affixed on the cheque. During the cross- examination by the learned advocate for the accused, the witness has stated that the complaint is filed against three persons. 7.3. PW-4 Kamleshbhai Chhotalal Barot has been examined at Exh.13 and the witness has stated that the accused is his wife's uncle and was an agent to send people to America. The accused had told him that he would take him to America and get him a job and he and his friends Prafulkumar, Mahavir and Anilbhai Tiwari had given an amount of Rs.5,80,000/-, out of which, Rs.1,25,000/- was given in cash. The accused had told them that he would take them within six months to America, but he did not send them to America and they demanded for the amount of Rs.1,25,000/- and the cheques were given, which returned unpaid. The cheques are produced at Exhs.14, 15 and 16. During the cross-examination by the learned advocate for the accused, the witness has stated that Page 13 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined the cheques were given by Dineshbhai, but he does not know whose signature is affixed on them. At the time of the incident, he was married to the niece of the accused.
7.4. PW-5 Jignaben Vishnukumar Barot examined at Exh.17 is the niece of the accused, who has stated that her brother-in-law Kamleshbhai wanted to go abroad and the accused and one Manubhai had taken money from him. They had demanded for Rs.4,00,000/- to 5,00,000/- and an amount of Rs.2,00,000/- was given to Manubhai, and at that time, the accused was with Manubhai. That even though, the amount was paid, they did not send her brother-in-law Kamleshbhai to America and Dineshbhai and the accused had agreed to return the amount, but he did not return the amount till today. During the cross-examination by the learned advocate for the accused, the witness has stated that all the money was collected and given to Manubhai and the cheques were given by Manubhai Parekh, which were from his account. 7.5. PW-6 Virjibhai Jivabhai Katara has been examined at Exh.18 and the witness is the Investigating Officer, who has narrated in detail the procedure undertaken by him during Page 14 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined investigation. The witness has stated that he had arrested the accused and filed the charge sheet. During the cross-examination by the learned advocate for the accused, the witness has stated that the present accused Dineshbhai did not give any cheques and during investigation, it was found that the complainant and the witnesses did not give any money to the accused.
8. On minute appreciation of the entire evidence of the prosecution, it is the case of the prosecution that the accused along with the other co-accused had taken an amount of Rs.5,80,000/- from them to send them to America and had taken their signatures in some blank forms. The other accused are absconding and as per the evidence, the amount was not given to the present accused, but was given by the complainant and the witnesses to the co-accused, who are absconding. There is no evidence on record that the accused had agreed to send the complainant and witnesses to America and had taken any amount from the complainant or the witnesses and there is no evidence that the accused had agreed to return the amount and had given the cheques. The only evidence that has emerged on record is that the accused was a neighbor of Page 15 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025 NEUTRAL CITATION R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025 undefined the absconding accused and was with him at the time when the amount was paid by the complainant and the witnesses to the absconding accused.
9. In view of the above, the learned First Appellate Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned First Appellate Court has appreciated all the evidence and this Court is of the considered opinion that the learned First Appellate Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned First Appellate Court are absolutely just and proper and no illegality or infirmity has been committed by the learned First Appellate Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned First Appellate Court. This Court finds no reason to interfere with the impugned judgment and order passed by the learned First Appellate Court and the present appeal is devoid of merits and resultantly, the same is dismissed. Page 16 of 17 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:27 IST 2025
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10. The impugned judgment and the order dated 11.06.2010 in Criminal Appeal No.239 of 2009 passed by the learned Additional Sessions Judge, Court No.15, Ahmedabad City is hereby confirmed.
11. Bail bond stands cancelled. Record and proceedings be sent back to the learned First Appellate Court forthwith.
Sd/-
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