The State Of Maharashtra vs Ishwar Sattu Narayankar
2021 Latest Caselaw 3662 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION
                          CRIMINAL APPEAL NO.91 OF 2006
 The State of Maharashtra                         ) ....Appellant/Complainant
                V/s.
 Ishwar Sattu Narayankar                          )
 Age : 28 years, Occu.: Service                   )
 R/o. 17/28, Shastrinagar,                        )
 Solapur                                          ) .....Respondent/accused
                                   ----
Mrs. Anamika Malhotra, APP for State - Appellant.
None for respondent.
                                   ----
                                    CORAM : K.R.SHRIRAM, J.

                                    DATE     : 26th FEBRUARY 2021
ORAL JUDGMENT :

1                  This is an appeal impugning an order and judgment dated

31st July 2004 passed by the Chief Judicial Magistrate, Solapur, acquitting

respondent (accused) of offences punishable under Section 409 ( Criminal

breach of trust by public servant, or by banker, merchant or agent ) and

Section 477 (A) (Falsification of accounts) of the Indian Penal Code (IPC).

2 It is prosecution's case that accused was attached to Solapur

Municipal Council as Junior Clerk since 18 th August 1989 and was

transferred to Bhavana Rushi Peth Health Centre with effect from

4th October 1991. The work of family planning was allocated to the health

centre. Family planning operations like inserting Copper-T was to be

performed at the health centre. Amounts were also paid to patients of family

planning and for undergoing insertion of Copper-T. The said health centre

had two current accounts. The Medical Officer one Dr. Mrs. Panwalkar was

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authorised to deposit the amount in the bank accounts and she was also

authorised to withdraw the amount from the said accounts. Accused as

Junior Clerk was entrusted with the work of maintaining the accounts of the

health centre. Accused was also preparing the bills. The internal audit of

Solapur Municipal Council audited the accounts of health centre on

24th February 1995 and gave a report that accused had withdrawn an

amount of Rs.1,69,798/- from the bank accounts of health centre and he

could find entries only for Rs.1,17,299/- and therefore, there was a shortfall

of Rs.42,499/- which has been misappropriated by accused.

3 PW-1 Dr. Ashok Shankar Burate filed a complaint as per the

directions of the Assistant Commissioner of Solapur Municipal Council.

Investigation was commenced, statements were recorded, books were seized

and chargesheet was filed. Accused pleaded not guilty and has taken a stand

that he was not entrusted with the amount of the health centre.

4 To prove their charge, prosecution led evidence of four

witnesses, viz., Dr. Ashok Shankar Burate, Health Officer of Solapur

Municipal Corporation, complainant as PW-1; Digambar Ramdas Madgundi,

Internal Auditor of Solapur Municipal Corporation as PW-2; Vidyadhar

Govind Gambhire, Accountant of Sangli Bank Corporation as PW-3; and

Raju Baliram Savant, Health Inspector of Solapur Municipal Council as

PW-4. Defence led evidence of Govind Nagappa Hattyalkar, retired

Superintendent of Solapur Municipal Corporation as DW-1.

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5               As noted earlier, the defence of accused was that on directions

of Dr. Panwalkar, accused would present cheques in the bank for withdrawal

of cash and after withdrawing the cash, it would be handed over to

Dr. Panwalkar. Accused submitted that he was not entrusted with the cash of

the health centre and therefore, the question of misappropriating

Rs.42,499/- or any other amount would not arise.

6 PW-1 has categorically stated that he filed the complaint on

instructions of the Assistant Commissioner of Solapur Municipal Council and

he has no personal knowledge about the misappropriation. PW-1 also states

that he has not verified the audit report prior to filing of complaint.

7 PW-2 is the Internal Auditor who has opined that there was a

shortfall of Rs.42,499/- as it is not reflected in the cash book. According to

PW-2, accused was entrusted with payment of funds to patient, assistant,

medical officers and also maintaining the accounts of the health centre.

According to PW-2, accused has written cash book only for the period from

4th October 1991 to 30th November 1991 and those entries have been signed

by Dr. Panwalkar. According to PW-2, accused withdrew more amount than

what is mentioned in the registers and vouchers and hence, misappropriated

the amount of Rs.42,499/-. PW-2, however, in his cross examination has

admitted that as per his audit report, Medical Officer Dr. Panwalkar was also

responsible for negligence but she is not an accused. The case of the defence

is that as Dr. Panwalkar did not give the challans and vouchers to accused,

then how accused could write the cash book. The onus is on the prosecution

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to first establish that there was entrustment of property to accused and

thereafter, prosecution should show accused converted that property to his

own use or his dishonest use is in violation of provisions of law.

8 PW-3 is the Accountant of Sangli Bank who has admitted that

Dr. Panwalkar was authorised to operate both the accounts of health centre

and accused was not authorised to operate. PW-3 also admitted that even

the specimen of signature of accused is not with the bank. PW-3 also states

that in case of self cheques, the account holder has to collect the amount

and there was no written instructions from Mrs. Panwalkar to pay the

amount of self cheques of the centre to accused.

9 Evidence of PW-4 is crucial in as much as, PW-4 had admitted in

his cross examination that it was Medical Officer who used to withdraw the

amounts from the account of the health centre and Mrs. Panwalkar was the

Medical Officer. PW-4 has further admitted that cash in hand of the centre

was in the custody of the Medical Officer. PW-4 also admits that his evidence

about fraud on the part of accused was hearsay. From the evidence of PW-3

and PW-4, it is quite obvious that it was Dr. Panwalkar, Medical Officer of

the Health Centre, who was actually entrusted with the cash in hand and

not accused. The innocence of accused is further proved by the defence

witness, who had conducted departmental enquiry against accused. DW-1

has stated that during the departmental enquiry, it has come on record that

accused would present cheques on the directions of Dr. Panwalkar for

collection and after receiving the amount from the bank, accused would

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hand over the cash to Dr. Panwalkar. This also confirms that cash of the

health centre was in the custody of Medical Officer Dr. Panwalkar and

therefore, it is quite obvious that prosecution has failed to prove

entrustment of property to accused.

10 The Apex Court in Ghurey Lal V/s. State of U.P.1 has culled out

the factors to be kept in mind by the Appellate Court while hearing an

appeal against acquittal. Paragraph Nos.72 and 73 of the said judgment read

as under :

72. The following principles emerge from the cases above :

1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

73. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when :

1. (2008) 10 SCC 450

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i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

11 The Apex Court in many other judgments including Murlidhar

& Ors. V/s. State of Karnataka2 has held that unless, the conclusions

reached by the trial court are found to be palpably wrong or based on

erroneous view of the law or if such conclusions are allowed to stand, they

are likely to result in grave injustice, Appellate Court should not interfere

with the conclusions of the Trial Court. Apex Court also held that merely

because the appellate court on re-appreciation and re-evaluation of the

evidence is inclined to take a different view, interference with the judgment

of acquittal is not justified if the view taken by the trial court is

a possible view.

2. (2014) 5 SCC 730

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We must also keep in mind that there is a presumption of

innocence in favour of respondent and such presumption is strengthened by

the order of acquittal passed in his favour by the Trial Court.

The Apex Court in Ramesh Babulal Doshi V/s. State of

Gujarat3 has held that if the Appellate Court holds, for reasons to be

recorded that the order of acquittal cannot at all be sustained because

Appellate Court finds the order to be palpably wrong, manifestly erroneous

or demonstrably unsustainable, Appellate Court can reappraise the evidence

to arrive at its own conclusions. In other words, if Appellate Court finds that

there was nothing wrong or manifestly erroneous with the order of the Trial

Court, the Appeal Court need not even re-appraise the evidence and arrive

at its own conclusions.

12 I do not find anything palpably wrong, manifestly erroneous or

demonstrably unsustainable in the impugned judgment. From the evidence

available on record, there is nothing to substantiate the charge leveled

against accused.

13 There is an acquittal and therefore, there is double presumption

in favour of accused. Firstly, the presumption of innocence available to

accused under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless he is proved guilty by

a competent court of law. Secondly, accused having secured acquittal, the

presumption of his innocence is further reinforced, reaffirmed and

3. 1996 SCC (cri) 972

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strengthened by the Trial Court. For acquitting accused, the Trial Court

observed that the prosecution had failed to prove its case.

14 In the circumstances, in my view, the opinion of the Trial Court

cannot be held to be illegal or improper or contrary to law. The order of

acquittal, in my view, cannot be interfered with. I cannot find any fault with

the judgment of the Trial Court.

            15              Appeal dismissed.



                                                                  (K.R. SHRIRAM, J.)

           Digitally
           signed by
           Gauri A.
Gauri A.   Gaekwad
Gaekwad    Date:
           2021.03.03
           11:12:19
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