Bombay High Court
The State Of Maharashtra vs Arkesh Baburao Pagare And Ors on 18 March, 2021
Bench: Ravindra V. Ghuge, B. U. Debadwar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.771 OF 2019
WITH
APPLICATION FOR LEAVE TO APPEAL BY STATE (ALS) NO.153 OF 2018
DEEPAK PADMANABH PUJARI
VERSUS
ARKESH BABURAO PAGARE AND OTHERS
...
Advocate for the Appellant : Smt.M.D.Thube-Mhase i/by Lex Aquila
APP for the State : Shri S.G. Sangle
...
CORAM : RAVINDRA V. GHUGE
&
B. U. DEBADWAR, JJ.
DATE :- 18th March, 2021
Per Court :-
1. The appellant in Criminal Appeal No.771/2019, is the first
informant. He is aggrieved by the judgment and order dated 10.01.2018
delivered by the learned Additional Sessions Judge, Aurangabad in
Sessions Case No.294/2014 vide which, all the six accused have been
acquitted from the charge of having committed the offences punishable
under Sections 395, 109 and 120-B of the Indian Penal Code.
2. The informant had lodged the report of the offence on
21.06.2014 with the MIDC Cidco Police Station, Aurangabad. Narration in
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the FIR indicates that accused No.5, an employee of an educational
institution in which the appellant/ informant was an employee, was the
driver of the vehicle in which, an amount of Rs.52 lacs were being
transported for depositing the same in the Malkapur Urban Cooperative
Bank account. The said amount was towards the collection of tuition fees
of students admitted to the school. The entire sequence of events have
been narrated in the FIR.
3. The learned advocate for the appellant and the learned
prosecutor, have drawn our attention to the impugned judgment and the
testimony of witnesses. It is pointed out that the amount was kept in a bag
in which, the bank deposit slips were also preserved. Details in the bank
deposit slips were filled in and accused No.5 was supposed to deposit the
said amount along with slips in the concerned bank.
4. It was the allegation of the informant that accused No.5, in
connivance with accused Nos.1 to 4 and 6, had hatched a criminal
conspiracy so as to obstruct the car of the informant bearing number MH-
20-CS-1642. Accordingly, the car was obstructed by the accused using
motorcycles to create a picture of there being a slight collision between
the vehicle and the motorcycle. A quarrel-like scene was created and with
the assistance of the driver/ accused No.5, the bag of money and bank
deposit slips kept beneath the rear seat of the driver, were stolen.
5. The learned advocate for the appellant submits that accused
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No.4 entered a memorandum under Section 27 of the Evidence Act and
led to the discovery and seizure of the bag, which was intact with the
entire amount and bank deposit slips. This vital piece of evidence has been
ignored by the Trial Court merely because the panch witness turned
hostile. It is a matter of fact that the said amount has been directed by the
Trial Court to be returned to the Chairperson of the educational institution
as it belonged to it and not even accused No.4, much less, any other
accused have claimed that the amount belongs to them.
6. The test identification parade was conducted and the accused
were identified by the informant. These accused were also subsequently
identified by the informant, who testified, before the Trial Court. This vital
piece of evidence has also been ignored.
7. The informant had put forth a theory that accused No.1 had
an auto recording mechanism in his cellphone instrument. Accused No.5
knew of the plan/ movement of the informant for depositing the money in
the bank. He, therefore, spoke to accused No.1 and the telephonic
conversation between the two, was recorded. Phones were seized. The
CDR record was produced by the Nodal Officer of the cellular service
provider along with the certificate under Section 65-B of the Evidence Act.
Recorded telephonic conversation nails the accused. However, the Trial
Court has ignored this vital piece of evidence on the ground that the
Nodal Officer did not produce his appointment order and his nomination
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as the Nodal Officer for the service provider.
8. In view of the above, we do find that this Criminal Appeal
needs to be considered. In the event, we refuse to admit the appeal, the
informant/ appellant would lose a valuable right of challenging the
judgment of acquittal.
9. As such, this Criminal Appeal No.771/2019 is ADMITTED.
Issue notice to the respondents for final hearing, returnable after one year.
The learned prosecutor waives service of notice on admission, on behalf of
respondent No.7/ State.
10. We direct the compliance of Section 390 of the Code of
Criminal Procedure, 1973.
11. The learned Additional Sessions Judge, Aurangabad shall
prepare the appeal paper book in Sessions Case No.294/2014 decided on
10.01.2018, by 31.08.2021 and transmit the same along with the original
record and proceedings and muddemal property, if any, to reach this Court
by 30.10.2021.
12. In view of the above and for the reasons recorded in the
foregoing paragraphs, the application filed by the State seeking leave to
appeal, is allowed. Taking into account the judgment delivered by this
Court at Principal Seat in Satesh H. Chandiramani vs. Sadashiv Namdeo
Kharabi and another, in Criminal Application No.1201/2007 and Criminal
Application No.1200/2007 decided on 10.02.2009, the application
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seeking leave to appeal itself is treated as an appeal filed by the State. As
such, this appeal is also ADMITTED and notice be issued to the
respondents.
kps (B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
