Akhil Bhartiya Andhshraddha ... vs Master Kalyankar @ Mohan Mahadeo ...
2017 Latest Caselaw 7452 Bom

                                       1                                       apeal326.02




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 326 OF 2002


 Akhil Bhartiya Andhshraddha Nirmulan 
 Samiti, District Branch Yavatmal, 
 Regd. No.288/86, through Mahesh
 Bhagwandas Dattani, Secretary.                                ....       APPELLANT


                     VERSUS


 1) Master Kalyankar @ Mohan Mahadeo
     Janbaji Kalyankar,
     R/o Sandeep Talkies, Near Temple of
     Maruti, Gadge Nagar, Yavatmal. 

 2) State of Maharashtra.                                      ....       RESPONDENTS


 ______________________________________________________________

          Shri A.C. Dharmadhikari, Advocate for the appellant, 
                        None for the respondent.
  ______________________________________________________________

                               CORAM   :  ROHIT B. DEO, J.

                            DATED    :    22
                                              nd  SEPTEMBER, 2017

 ORAL JUDGMENT : 

The challenge is to the judgment and order dated

19-4-2002 in Summary Criminal Case 2826/1996, delivered by the

learned Chief Judicial Magistrate, Yavatmal, acquitting the respondent

1 (hereinafter referred to as the "accused") for offence punishable

2 apeal326.02

under Sections 2, 3, 4, 5, 7 and 9(A) of the Drugs and Magic Remedies

(Objectionable Advertisement) Act, 1954 (hereinafter referred to as

the "Act").

2. The complainant before the trial Court, in the purported

capacity of Secretary of Akhil Bhartiya Andhshraddha Nirmulan Samiti,

Yavatmal Branch instituted complaint under Section 9(A) and Sections

2, 3, 4, 5 and 7 of the Act, the gist of which was that the accused

published an advertisement in Marathi daily newspaper Namo

Maharashtra on 7, 8 and 9th April, 1996 and in daily Loksatta on 11,

12, 14, 15 and 16th April, 1996 and the said advertisements inter alia

claimed that success, marriage of daughter, conception of child,

prosperity in business and the like could be ensured through yantra

(magic) and ratna (diamond). The complaint states that the

advertisements gave the following contact, name and address.

'Master Kalyankar, Sandeep Talkies,

Behind Maroti Temple, Gadge Nagar, Yavatmal."

3. The complainant alleged that the suggestion and

insinuation that the accused possesses miraculous power and that

yantra and ratna could be used to ensure conception of child and the

3 apeal326.02

like is calculated to deceive and mislead the gullible people and the

advertisements constitute offence under the Act. The learned

Magistrate issued process, the plea of the accused was recorded vide

Exhibit 14, the accused pleaded not guilty and claimed to be tried.

The defence as is discernible from the trend and tenor of the cross-

examination and the statement recorded under Section 313 of the

Criminal Procedure Code is of total denial.

4. The learned Magistrate held that the contents of the

advertisements are objectionable and do transgress the provisions of

the Act. However, the accused is acquitted on the ground that the

complainant failed to establish beyond reasonable doubt that the

accused is responsible for the publication of the offending

advertisements.

5. The learned Counsel for the appellant Shri

A.C. Dharmadhikari would urge that the judgment of acquittal borders

on perversity. He would urge that the complainant conclusively

established that the accused was responsible for the publication of the

offending advertisements. The learned Counsel would invite my

attention to the depositions of P.W.3 Chandrakant Dhakulkar, the

4 apeal326.02

Chief Sub-Editor of Loksatta, P.W.4 Suresh Giri, the Manager of Namo

Maharashtra and that of P.W.6 Ulhas Athale, the Handwriting Expert.

6. P.W.3 has proved the newspapers published on 11, 12, 14,

15 and 16th April, 1996 at Exhibits 41 to 45. However, P.W.3 did not

produce the application purported to be that of the accused to link the

accused to the advertisements. Similarly, P.W.4 only proves the

newspapers without producing any material to link the accused to the

publication. P.W.4 too did not produce any documentary evidence

connecting the accused to the advertisements. P.W.6, Handwriting

Expert was examined to prove the signature on a document purported

to be a letter dated 07-1-1997 allegedly hand delivered by the accused

to P.W.1 Mahesh Dattani. This letter dated 07-1-1997 allegedly admits

that the advertisements were published by the accused. The opinion of

the Handwriting Expert is on the basis of the comparison of the

disputed signature of the letter dated 07-1-1997 with the standard

signatures of the accused on Exhibits 6, 12, 13 and 16. The opinion

and the deposition in the examination-in-chief is, however, rendered of

no utility to the complainant in view of the admission that the

Handwriting Expert has not opined as regards the contents of

handwriting in the letter dated 07-1-1997. The further admission is

5 apeal326.02

that the signature could not be compared with the writing in the body

of the letter for want of sufficient material. That, apart, it is well

settled that the opinion of the Handwriting Expert is essentially a weak

piece of evidence. In the absence of cogent primary evidence on

record, the evidence of the Handwriting Expert, suspect as the

evidence is, does not take the case of the complainant any further. The

learned Magistrate has taken a possible view. The view is certainly not

perverse. The limitations of the appellate Court while scrutinized the

judgment of acquittal are well recognized. I do not see any reason to

disturb the judgment of acquittal.

7. The appeal is sans merit and is rejected. The bail bond of

the accused shall stand discharged.

The appeal is disposed of accordingly.

JUDGE

adgokar