Chattisgarh High Court
Ashfaque Ali vs State Of Chhattisgarh on 20 January, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:3410
NAFR
Digitally
signed by
AMIT PATEL
HIGH COURT OF CHHATTISGARH AT BILASPUR
Date:
2025.01.20
04:49:05 Criminal Appeal No. 663 of 2005
+0530
Judgment Reserved on : 26.11.2024
Judgment Delivered on: 20.01.2025
Ashfaque Ali, S/o Shri Asgar Ali, aged about 47 years, Occupation- Advocate, R/o
Sadar Road, Jagdalpur, District- Bastar (C.G.)
---Appellant
Versus
State of Chhattisgarh, through P.S.- Geedam, District- Dantewada (C.G.)
--State/Respondent
_____________________________________________________________
For Appellant : Mr. Vimlesh Bajpai, Advocate.
For State/Respondent : Ms. M. Asha, Panel Lawyer.
_____________________________________________________________
Hon'ble Smt. Justice Rajani Dubey
C A V Judgment
1. This appeal is preferred under Section 374 (2) of the Code of Criminal
Procedure, 1973 against the judgment dated 12.08.2005 passed by
learned Additional Sessions Judge, Dantewada, District- South Bastar
Dantewada, C.G. in Sessions Trial No.10/2003, wherein the said Court
convicted the appellant and sentenced him as under:-
Conviction Sentence
Under Section 420 of IPC R.I. for 05 years with fine
amount of Rs. 50,000/-, in
default payment of fine, to
undergo additional S.I. for 01
year.
Under Section 467 of IPC R.I. for 10 years with fine
amount of Rs. 5,000/-, in default
of payment of fine, to undergo
additional S.I. for 06 months.
(Both sentences are directed to run concurrently)
Prosecution story:-
2. The prosecution case, in brief, is that on 13.12.1992, appellant, (the
then Manager at Regional Rural Bank, Branch- Nelsar, District-
Bastar,C.G.) went to the house of Radhabai (PW-09) who resides at
Village- Bodli (which is 8 Kms from Nelsar) and after eating chicken, he
returned to Nelsar. On that night, the Bank was set to ablaze, the
Research Agency were having doubts on the appellant as he was
habitual gambler and he must have formed this conspiracy to cover up
his financial irregularities/infirmities and to destroy any evidence
regarding his fraudulent work during his tenure as a Manager of the
said Bank. After getting the oral and documentary evidence by the
Research Agency that the appellant had committed financial
irregularities and withdrawn the amount fraudulently, it is evident from
the Research Agency that the appellant had withdrawn the amounts
from the State Bank of India, Geedam on different dates and the said
amounts were not deposited by the appellant in Rural Regional Bank.
The appellant had also withdrawn amount fraudulently from the saving
account holders and withdrawn the amount in the name of Block
Development Officer, Bhairamgarh on different dates, whereas the said
amounts were not withdrawn on different dates by the said department.
The appellant had also falsified the Bank records.The prosecution after
conducting the due and necessary investigation, filed the charge-sheet
before the Court of Judicial Magistrate, Dantewada, thereafter, the
matter was committed to learned Additional Sessions Judge, North
Bastar Dantewada and the accused/appellant was put to trial for the
offence punishable under Sections 436, 409, 409, 420, 420 & 467 of
IPC.
3. So as to hold the accused/appellant guilty, the prosecution examined as
many as 25 witnesses. Statement of the accused/appellant was also
recorded under Section 313 of Cr.P.C. in which he denied the
incriminating charges leveled against him and pleaded his innocence
and false implication in the case. In his defence, the appellant
examined 02 witnesses.
4. The learned trial Court after hearing the counsel for the respective
parties and considering the material available on record convicted and
sentenced the accused/appellant, as mentioned in para 1 of this
judgment. Hence, the present appeal.
Submission of the parties:-
5. Learned counsel for the appellant submits that conviction of the
appellant is bad, illegal and improper, the prosecution has failed to
prove necessary ingredients of offence under Section 420 of IPC, the
appellant has been convicted under Section 467 of IPC, but there is no
evidence available on record that appellant has forged any document.
Learned Trial Court has convicted the appellant on the basis of
depositions of B.C. Mazumdar (PW-03) and Moti Singh Chandravanshi
(PW-24), but they have nowhere stated that the appellant forged any
documents. He further submits that the conviction is erroneous and
contrary to the evidence on record, hence is unsustainable in the eye of
law and deserves to be set aside. Learned Trial Court has erred in
holding that the accused person/appellant has admitted his guilt while
replying to Question No. 15 of his statement under Section 313 Cr.P.C.
So, the impugned judgment is liable to be set- aside and appellant
deserves to be acquitted of the said charges levelled against him.
6. Per contra, learned State counsel supporting the impugned judgment
submits that the learned trial Court properly appreciated the oral and
documentary evidence and rightly convicted the appellant. Therefore,
the impugned judgment does not suffer from any irregularity or infirmity
warranting interference by this Court in the instant appeal and appeal is
liable to be dismissed.
7. I have heard learned counsel for the parties and perused the material
available on record including the impugned judgment.
Discussion & Analysis:-
8. It is clear from record of learned Trial Court that the learned Trial Court
framed charges for offence under Sections 436, 409,409,420, 420 &
467 of IPC against the appellant and the learned Trial Court after
minutely appreciating the oral and documentary evidence, acquitted the
appellant of offence under Sections 436, 409, 409 & 420 of IPC and
convicted the appellant for offence punishable under Sections 420 &
467 of IPC. It is clear from record of learned Trial Court that prosecution
has examined as many as 25 witnesses against the appellant and also
the appellant examined 02 witnesses in his defence.
9. It is quite vivid that learned Trial Court found in para 34 of its judgment
that accused admitted his guilt of Question No. 15 and relied upon the
evidence of B.C. Majumdar (PW-03) & Motisingh Chandravanshi (PW-
24), thereby convicted the appellant.
10. B. C. Majumdar (PW-03) has stated in his examination-in-chief that on
different dates, the amounts were withdrawn and in para 12 of his
cross-examination he admitted that " 12. ;g ckr lgh gS fd Vh0vkj0 ls bl
ckr iqf"V gksrh gS fd jkf'k fyad 'kk[kk ls fudky dj iz/kku dk;kZy; [kkrk esa tek dh xbZ gSA
;g ckr lgh gS fd lkIrkfgd fooj.kksa esa Hkh mDr fooj.k vkrk gSA ''
11. Moti Singh Chandravanshi (PW-24) has also admitted in paras 7 & 8 of
his cross-examination that " 7. ;g dguk lgh gS fd cLrj {ks=h; xzkeh.k cSad usylukj
esas tc vkx yxh mlds i'pkr gh eSaus izHkkj fy;k FkkA ;|fi eSaus TokbZu vDVwcj 1992 esa dj
fy;k Fkk fdarq izHkkj ysus esa eq>s blfy, foyac gqvk pqafd dSlcqd esUVsu ugh Fkk mDr dS'kcqd
fodkl [kaM HkSjex<+ dh ugh Hkjh xbZ FkhA
8. fodkl[kaM HkSjex<+ dh dS'kcqd tks lacaf/kr DydZ ds }kjk fy[kh tkrh Fkh og cjkcj ugh Hkjh
xbZ Fkh] ckn esa Hkjh xbZ FkhA rc eSaus pktZ fy;kA ''
12. The accused person/appellant has answered question No. 15, which is
reproduced for ready reference is as under:-
'' प्रश्न -15 उपरोक्त गवाह का यह भी कथन है की ग्रामीण बैंक नेल्सनर शाखा के दैनिक लेन
- देन रजिस्टर के पृष्ट -146 और 185 पर विकास खंड अधिकारी भैरमगढ़ को दिनांक
04.11.91 एवं 04.01.92 को क्रमशः 25 हजार रुपए एवं 20 हजार रुपए को भुगतान
किया जाना बताया गया था, तुम्हारा क्या कहना है ?
उत्तर- भुगतान किया गया है I ''
13. The accused/appellant has examined himself as Defence Witness-2
and stated in para 3 that " .....y{ehjkuh jk; us fnukad 06-08-1992 dks gh lkof/k tek
j'khn jkf'k 25000@&:i;s cuokbZ Fkh tks iz0Mh0&19 gSA lkFk gh eSa U;k;ky; Jheku izFke
O;ogkj U;k0oxZ&2 txnyiqj ds U;k;ky; esa lafLFkr okn dzekad &3,@99 esa okfnuh Jherh
y{ehjkuh jk; }kjk izLrqr nLrkost dh lwph dh izekf.kr lR;izfrfyih izLrqr dj jgk gWw ftlesa
Hkh nf"kZr gS] fd fo'ks"k lkof/k tek j'khn fnukad 06-08-1992 dks gh rS;kj dh xbZ Fkh tks
iz0Mh0&20 gSA ''
14. Learned Trial Court convicted the appellant under Section 467 of IPC
and charge framed by Trial Court in para 06, which is reproduced
herein for ready reference as under:-
" 6 rqe usylukj {ks=h; xzkeh.k cSad ds izca/kd dh gSfl;r csbZekuhiwoZd vk'k; ls lu~ 1990 ls
12-12-92 ds e/; LVsV cSad xhne ls fnukad 18-08-92 dks izkIr 20000@#&:i;s fnukad 14-09-92
dks izkIr 20000@&:i;s rFkk fnukad 25-09-92 dks IkzkIr 15000@&:i;s rFkk fnukad 06-03-92 dks
Jherh y{eh jk; ls lkof/k tek j"khn okLrs izkIr 25000@& :i;s rFkk cpr [kkrk/kkjh ekM+oh
tksxk] oqt: jke ,oa ts-,Q-c?ksy ds ikl cqd esa rFkk fodkl[kaM vf/kdkjh HkSjex<+ ds [kkrs esa
fnukad 04-11-91 dks 25000@&:i;s rFkk fnukad 04-01-92 dks 20000@&:i;s vkgj.k ds laca/k esa
QTkhZ baUnzkt dj dqVjpuk fd;kA vkSj ,slk djds rqeus og vijk/k fd;k tks Hkk0n0fo0 dh /kkjk
467 ds varxZr n.Muh; gS vkSj bl U;k;ky; ds fopj.k {ks=kf/kdkj ds varxZr gSA"
15. But, it is clear from statements of both the witnesses i.e. PW-03 & PW-
24 and answer of the appellant that it is not proved that the accused
has forged fixed deposit slip of Laxmirani Rai and the saving account
holders of Madhvi Joga and other persons and it is admitted by PW-03
that amount was withdrawn, but deposited in Head Office account and
entries were made in T.R. and in weekly details (lkIrkfgd fooj.k).
Defence has also filed documents of civil case which was filed by
Laxmirani Rai, which shows that accused/appellant is not liable for any
misappropriation or forgery.
16. Learned Trial Court convicted the appellant only on the statements of
PW-03 and PW-24 and Question No. 15 of accused's statement which
was recorded under Section 313 of Cr.P.C. But, it is clear that learned
Trial Court did not appreciate cross-examinations of both witnesses and
overlooked their admission and also did not appreciate statement of
defence witnesses, however no other witnesses stated about any
forgery or misappropriation against the appellant, learned Trial Court
has convicted the appellant only on three grounds, but looking to the
cross-examinations of both witnesses and explanation of appellant, it is
clear that prosecution has utterly failed to prove its case beyond all
reasonable doubts. Thus, findings recorded by learned Trial Court being
perverse are unsustainable in the eye of law.
17. In view of the aforesaid discussion and considering the facts and
circumstances of the case, this appeal is allowed. The impugned
judgment is set aside and the appellant is acquitted of the charge under
Sections 420 & 467 of I.P.C. Fine amount, if any, deposited by the
appellant shall be refunded forthwith.
18. The appellant is reported to be on bail, therefore, his bail bond shall
remain in operation for a period of six months from today in view of
provision of Section 437-A of Cr.P.C.
19. The Trial court record along with a copy of this judgment be sent back
immediately to the trial court concerned for compliance and necessary
action.
Sd/-
(Rajani Dubey)
Judge
AMIT PATEL
