Allahabad High Court
State Of Uttar Pradesh vs Sita Ram Vishwakarma on 13 July, 2022
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 88
Case :- CRIMINAL REVISION No. - 1619 of 2009
Revisionist :- State Of Uttar Pradesh
Opposite Party :- Sita Ram Vishwakarma
Counsel for Revisionist :- Govt. Advocate,D.R.Chaudhary
Counsel for Opposite Party :- A.G.A.
Hon'ble Sanjay Kumar Singh,J.
1-Heard Additional Government Advocate for the State of Uttar Pradesh/Revisionist. Perused the record as well as impugned judgment.
2-This Criminal Revision under Sections 397/401 Cr.P.C. has been preferred by the State against the judgment and order dated 16.09.2008 passed by Additional Sessions Judge, Court No. 7, Bijnor whereby the Criminal Appeal No. 19 of 2008 of the State was rejected which was preferred against the judgment and order dated 10.03.2008 passed by Additional Chief Judicial Magistrate, Bijnor where by opposite party namely Sita Ram Vishwakarma has been acquitted from the charges u/s 409, 420, 465, 466, 468, 471, 477 A, 208 IPC.
3-This revision is pending since 2009 and has not yet been admitted.
4-As per prosecution case, an approval was given by the Divisional Commissioner Moradabad vide its order dated 12.01.1982 in favour of Sukhey Singh and Karan Singh to realize toll tax for the year 1981-82 from Panipath-khatima Road, Rawali Pheri. According to the terms of the auction, the contractor had deposited an amount of Rs. 88,040/- as 1/4 of the bid amount via F.D.R, Rs. 10,000/- on 13.10.1981 and the remaining amount of Rs. 78,040/- was deposited on 04.02.1982 via TDR but due to non-construction of bridge by the department and not constructing the right route, the contractor could not mortgage the lease with the department for the said recovery due to which the Divisional Commissioner Moradabad vide its order dated 21.07.1982 directed to seize the deposit amount deposited by the contractors. After passing the seizure order, Sita Ram Vishwakarma cashed the aforesaid TDRs and deposited the same in the cash department. As per rules, the said amount shall immediately be deposited in the bank on the same day but the same was not done. The allegation against the opposite party is of embezzlement of Rs. 1,55,000/-. On 12.07.1986, the Executive Engineer had filed a written complaint about the aforesaid embezzlement in Police Station Kotwali. On the said written complaint, a chik F.I.R. was registered against the opposite party on 15.07.1986 as Case Crime No. 369 of 1986 (Ex. Ka-32), under Sections 409, 420, 465, 466, 468, 471, 477A and 218 IPC. After culmination of investigation charge-sheet was submitted against the opposite party, who has denied the aforesaid charges levelled against him and claimed to be tried.
5-So as to hold accused persons guilty, prosecution has examined as many as four prosecution witnesses whereas no defense witnesses have been examined.
6-Statements of the accused person under Section 313 Cr.P.C. was recorded in which, he pleaded his innocence and false implication.
7-By the impugned judgment and order dated 10.03.2008, the trial court has acquitted the opposite party on the ground that no notable facts have been placed before the court to prove the guilt of the opposite party.
8-Learned counsel for the revisionist, while assailing the acquittal, submits that the trial court has erred in law in acquitting the accused persons as the said embezzlement was committed by the opposite party.
9- After going through the impugned judgment and order dated 16.09.2008 and 10.03.2008, I find that the trial court after due appreciation of the evidence, has recorded that no notable facts have been placed before the court to prove the guilt of the opposite party.
10-On testing the above submissions in the light of law settled by the Apex Court regarding the scope of true contours of the jurisdiction vested in the High Court under Section 397 read with Section 401 of the Criminal Procedure Code, 1973, while examining an order of acquittal passed by the trial court, I find that the judgment and order of acquittal in revision can be interfered only on the following circumstances:-
(i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused;
(ii) where the trial court has wrongly shut out evidence which the prosecution wished to produce;
(iii) where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible;
(iv) where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and
(v) where the acquittal is based on the compounding of the offence which is invalid under the law.
11-Further the scope of power of revision against an order of acquittal has been well considered and settled by the Apex Court in case of Vimal Singh Vs. Khuman Singh (1998) 7SCC 223. The observations made in para 9 of the said case are being extracted below :-
"9. Coming to the ambit of power of the High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside and order of acquittal if it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial."
12-Aforesaid view has been reiterated by the Apex Court in it's subsequent judgment in case of Venkatesan Vs. Rani andanother (2013) 14 SCC 207 and held as follows:
"Revisional jurisdiction of the High Court while examining an order of acquittal is extremely narrow and ought to be exercised only in cases where trial court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thereby causing miscarriage of justice. Reappreciation of evidence is an exercise that the High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction. If within the limited parameters, interference of the High Court is justified the only course of action that can be adopted is to order a retrial after setting aside the acquittal. As the language of Section 401 of the Code makes it amply clear there is no power vested in the High Court to convert a finding of acquittal into one of conviction."
13-Keeping in view of the above proposition of law, I find that the present revision against the impugned judgment and order of acquittal is bereft of any merit. There is no manifest error of law or illegality or perversity in the impugned judgment and order dated 10.03.2008 and 16.09.2008. Presumption, observations and findings recorded by the concerned Courts below, while acquitting the opposite party are well founded. Hence, no interference is called for in the impugned judgments and order.
14- Revision lacks merit and is, accordingly dismissed.
Order Date :- 13.7.2022
Saurabh
