Allahabad High Court
State Of U.P. vs Narendra Singh on 18 April, 2018
Bench: Rajesh Dayal Khare, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 41
Case :- GOVERNMENT APPEAL No. - 2792 of 1983
Appellant :- State Of U.P.
Respondent :- Narendra Singh
Counsel for Appellant :- A.G.A.
Counsel for Respondent :- Ashok Kumar Sinha,A.P. Misra,Pradeep Kumar Jain,Rajesh Pathik,Surendra Pratap Singh
Hon'ble Rajesh Dayal Khare,J.
Hon'ble Mrs. Vijay Lakshmi,J.
This appeal along with an application seeking leave to appeal has been filed by the State challenging the legality and correctness of the judgment and order dated 28.7.1983 passed by the learned Munsif Magistrate, Agra, in Criminal Case No.81 of 1983, (State Vs. Narendra Singh), under Section 409 of I.P.C., P.S.Govardhan, District-Agra, whereby the learned trial court has acquitted the accused-respondent from the charges levelled against him. .
Lower court's record has been received.
Heard learned A.G.A. on behalf of the State appellant and Shri Rajesh Pathik on behalf of the accused-respondent. Perused the impugned judgment and the evidence available on the lower court's record.
Learned A.G.A. has contended that the allegation against the accused-respondent is of embezzlement of Rs.15,000/- from the District Co-operative Bank, Mathura, regarding which an F.I.R. was lodged and he was prosecuted pursuant thereto. He has further contended that the accused-respondent had withdrew the amount and did not deposit the same with the Bank, therefore, he was rightly prosecuted. However, the learned court below without a proper appreciation of evidence acquitted him by the impugned judgment, which is liable to be set-aside.
Shri Rajesh Pathik, learned counsel appearing on behalf of the accused-respondent contended that in fact the said amount was withdrawn by the accused-respondent but was given to the Chairman of the then District Co-operative Bank Mathura, Shri Brijvir Singh Mulik through Shri N. L. Verma, the then Secretary of the District Co-operative Bank Mathura, thus no amount was embezzled by the accused-respondent. It is further contended that as during the pendency of the case Shri Brijvir Singh Mulik expired, therefore, he could not be summoned to depose before the trial court. Learned counsel has drawn the attention of this Court to the statement of the brother of Late Shri Brijvir Singh Mulik who had stated that it was his brother who had taken the amount of Rs.15,000/- for which the accused respondent was being unnecessarily harassed. He further contends that the innocence of the accused-respondent is further proved by the fact that nothing was found against him even in the departmental enquiry proceedings which were drawn by the District Co-operative Bank Mathura. Thus, it is contended that the order of acquittal passed by the court below suffers from no illegality and no interference is required by this Court.
We have considered the rival submission advanced by the learned counsel for the parties.
The brief facts of the case are that in the year 1979 accused was Cashier of District Co-operative Bank Ltd. Mathura Branch Goverdhan and in that capacity on 13.7.1979 he made an application for Rs.1,00000/- (one lack). On this application the District Co-operative Bank Ltd. Mathura issued three Cheques numbering N.G.B.002941, N.G.B.002942 and N.G.B.002943 for Rs.25,000/-, 25,000/- and Rs.50,000/- respectively. On 18.7.1979 accused encashed Rs.50,000/- and deposited the same in branch office of Goverdhan. On the same date accused also encashed the cheque No.N.G.B.002941and received Rs.25,000/-. He entered the same in the register of the Bank as paid but subsequently put the mark cancelled and did not make any entry in the Goverdhan Branch. The accused also showed in the register, Cheque No.N.G.B.002942 cancelled but, however, made no entries regarding this cheque. On 18.7.1979 accused deposited Rs.10,000/- in Goverdhan Branch but misappropriated the remaining amount of Rs.15,000/-. To maintain the accounts was the joint responsibility of the accused and that of the Manager Shri Sheo Singh Verma and when Shri Sheo Singh Verma learnt about the said fact, he lodged the report on 14.4.1980 on which the case was investigated and the chargesheet was submitted.
In order to prove its case the prosecution examined Sri Nisha Nath Verma, Shri Shailendra Kumar, Head Cashier, Shri Hari Prasad Varshevya and Shri Udaivir Singh, Investigating Officer.
The accused in his statement stated that he had paid Rs.15,000/- to Sri N.N. Verma (PW-1) who paid it to Sri Brijvir Singh Mulik. He has with him the slip written and signed by Sri N.N.Verma as a receipt of payment.
On consideration of evidence before him the learned trial court acquitted the accused on the following grounds;
(i) Admittedly, the accused had shown the receipt signed by Shri. N.N. Verma (P.W.1) to the Investigating Officer during investigation. The Investigating Officer (P.W.4), in his statement during trial has stated that Shri. N.N.Verma (P.W.1) had informed him that the accused had torn out his signature from some documents and had made the entry "received Rs.15,000/-" above it. The learned trial court disbelieved the aforesaid statement in view of the fact that the aforesaid paper of receiving Rs.15,000/- signed by Shri. N.N. Verma (P.W.1) was not produced by the prosecution during examination of Shri. N.N. Verma as (P.W.1), who could be the best witness to tell about about its genuineness. Even, no application was moved by the prosecution for examination of the paper by some handwriting expert. Under these circumstances, the learned court below held that possibility cannot be ruled out that the accused had paid that money to Sri. N.N. Verma (P.W.1) , who was his superior officer.
(ii) from the defence evidence it is also quite clear that in presence of defence witnesses, Sri Verma had paid Rs.15,000/- to Shri Mulik.
(iii) it is quite clear that the accused was subordinate to Sri Verma and in all likelihood he has done so at his behest.
We do not find any infirmity or perversity in the findings arrived at by learned trial court while acquitting the accused.
The view taken by the learned trial court is a possible view and the well settled legal principles is that in an appeal against acquittal even if two views are possible and the trial judge has taken one view, which is reasonable and plausible and appeals to the judicial mind, then the High Court should refrain from interfering with the order of acquittal.
In Ramesh Babulal Doshi Vs. State of Gujrat;1996 (9) SCC 225, the Hon'ble Supreme Court has held as under:
".....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 should be presumed to be innocence unless he is proved to be guilty by a competent court and secondly the accused having secured an acquittal, the presumption of innocence is, re-enforced and strengthened by the trial court..."
In Mahadeo Laxman Sarane vs. State of Maharashtra, (2007) 12 SCC 705, the Apex Court has observed that:
"It is true, that the settled legal position is that in an appeal against acquittal the High Court ought not to interfere with the order of acquittal if on the basis of the same evidence two views are reasonably possible-one in favour of the accused and the other against him. In such a case if the trial court takes a view in favour of the accused, the High Court ought not to interfere with the order of acquittal."
In C. Antony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1, the Apex Court has laid down the law as follows:-
"Unless the findings of trial court are perverse or contrary to the material on record, High Court cannot, in appeal, substitute its finding merely because another contrary opinion was possible on the basis of the material on record."
In Sirajuddin Vs. State of Karnataka, (1980) 4 SCC 375, the Apex Court has reiterated the same principle in the following words:-
"Where trial Court's order of acquittal is based on a reasonably possible view, High Court should not, as a rule of prudence, disturb the acquittal."
For the aforesaid reasons, there does not appear any good ground to interfere in the impugned judgment.
The application seeking leave to appeal is liable to be rejected and is according rejected.
Consequently, the Government Appeal is dismissed.
Order Date:-18.4.2018-SB
