The State Of ... vs Anna S/O Yadaoraoji Bagde
2017 Latest Caselaw 6529 Bom

                                               1


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR


                       CRIMINAL APPEAL NO.53 OF 2002


 The State of Maharashtra,
 through Police Station Officer,
 Police Station Yavatmal,
 Tq. Dist. Yavatmal.                                          ....... APPELLANT


                                    ...V E R S U S...

        
 Anna s/o. Yadaoraoji Bagde,
 aged about 43 years,
 r/o.Patipura, Yavatmal,
 Tq. Dist. Yavatmal.                                          ......RESPONDENT

     --------------------------------------------------------------------------------------
           Mr. N.B. Jawade, counsel for appellant.
           None for respondent accused.
     ---------------------------------------------------------------------------------------

                                             CORAM:            ROHIT B. DEO, J. 

                                             DATE:                th
                                                               24    AUGUST, 2017.


 ORAL JUDGMENT

 1                 The   State   appeal     is   challenging   the   judgment   and

order of acquittal dated 15.10.2001 delivered by the Chief Judicial

Magistrate, Yavatmal in Regular Criminal Case 105 of 1996 by and

under which the respondent / accused is acquitted for offence

punishable under Sections 409, 407, 420 of the Indian Penal Code.

2 Heard Shri. N.B. Jawade, learned Addl. Public

Prosecutor for the appellant /State. None appears for the

respondent / accused.

3 The gist of the prosecution case before the learned

Magistrate is thus:-

The accused Anna Bagde was a Village Development Officer

at the relevant time. In 1994, Umarsara Gram Panchayat was

dissolved and Shri. Ghanshyam Chirde, who is the complainant

was appointed as the Administrator and one Shri. B.C. Korde

assumed the charge of secretary. Shri. B.C. Korde proceeded on

medical leave w.e.f. 9.11.1999 and in his absence, the charge was

given to accused. When the charge was handed over to the

accused, there was balance of Rs. 1,33,000/- in Gram Panchayat

account.

The complainant alleges that he had approved withdrawal

of Rs. 76,000/- for the purpose of construction of drainage

channels. The accused sought his permission to withdraw the

amount on 30.11.1994. However, the complainant requested the

accused to account for the previous withdrawals. The complainant

further alleges that in the monthly meeting held on 2.12.1994, the

Block Development Officer orally instructed the accused not to

engage in any monetary transaction. Despite the said oral

direction, the accused allegedly withdrew Rs. 50,120/- from the

bank on 3.12.1994 by forging the signature of the complainant on

the cheque and misappropriated this amount.

It is further alleged that accused spent Rs. 60,000/-, which

was the tax collection, without depositing the same in bank and

submitted fraudulent bills. It is further alleged that the amount of

RS. 40,000/- which was sanctioned for construction of latrines

was withdrawn and spent by the accused without approval of the

complainant. The accounts were maintained by the accused and

the signatures of the complainant on the relevant pages of the

registers were forged. The effort, according to the prosecution,

was to show that the accounts were verified by the complainant.

The allegation is that the accused cheated the Government by

forging signatures and indulging in misappropriation. Pursuant to

a report lodged by the complainant, offence punishable under

Sections 409, 420, 467 of the Indian Penal Code were registered.

Pursuant to the investigation, charge-sheet came to be filed and

the learned Chief Judicial Magistrate framed charge at exh. 10.

The defence of the accused is of total denial and false implication.

The accused contended that he did not fulfill the illegal demand of

Rs.10,000/- made by the complainant and hence, the false

implication.

4 The judgment of acquittal is well reasoned and

minutely and painstakingly analyzes and appreciates the evidence

on record. The learned Magistrate has rejected the evidence of the

handwriting expert Shri. Ulhas Athale (PW3) and in my opinion

rightly so. Firstly, the specimen signatures and the cheque were

forwarded to Shri. Athale not by the Investigation Officer but by

the complainant in private capacity. Secondly, it is an admitted

position on record, that the original cheque was not forwarded to

Shri. Athale and that the opinion is based on examination of

photocopy, which the complainant allegedly procured from the

record of the Court. Thirdly, handwriting expert's opinion (Exh.

89) obtained on 27.7.1995, was kept under the wraps and was

only produced before the Court during the trial on 15.7.1999. It is

a settled position of law that the opinion of handwriting expert is

inherently a weak piece of evidence. In the factual matrix, the

handwriting expert's opinion is absolutely unworthy of credit. The

learned Magistrate was more than justified in discarding the

expert opinion of PW3. The learned Addl. Public Prosecutor, Shri.

N.B. Jawade with his usual fairness, does not dispute that if the

report of the handwriting expert is discarded, there does not

appear to be any evidence much less cogent evidence to bring

home the charge under section 467 of the Indian Penal Code. The

finding of the learned Magistrate that the prosecution has further

failed to prove the charge under section 409 and 420 of the Indian

Penal Code is equally unexceptionable. The learned Magistrate is

right in holding that the persons / shopkeepers/ businessmen who

have issued bills and who do not deny the receipt of the amount,

ought to have been examined by the prosecution to prove that the

bills are fraudulent. This, not having been done, there is

absolutely no evidence on record to suggest that the bills are

fraudulent. The learned Magistrate is further justified in recording

a finding that there is no evidence on record to suggest that the

amount of Rs. 40,000/- was to be spent only for construction of

public latrines. On the contrary, there is no single entry of the

receipt of Rs. 40,000/- in the record of the Gram Panchayat much

less an entry which would suggest that this amount of Rs.

40,000/- was to be spent only for construction of public latrines.

In any event, it is not the case of the prosecution that this amount

of Rs. 40,000/- was misappropriated for personal use. The case of

the prosecution is that this amount of Rs. 40,000/- was not spent

for construction of latrines and was spent for other works. Viewed

from any perspective, there is absolutely nothing on record to even

suggest much prove that the accused misappropriated or

converted the said amount of Rs. 40,000/-. I have given my

anxious consideration to the material on record and the reasons

recorded by the learned Magistrate. I am not persuaded to hold

that the judgment of acquittal is perverse. The view taken is

plausible or possible view and this Court would not be justified in

interfering with such view.

The appeal is without substance and is rejected.

JUDGE

Belkhede, PA