State Of Gujarat vs Naginbhai Morarbhai Patel
2021 Latest Caselaw 17952 Guj

    R/CR.RA/168/2021                               ORDER DATED: 01/12/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 168 of 2021

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                           STATE OF GUJARAT
                                 Versus
                       NAGINBHAI MORARBHAI PATEL
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Appearance:
MS CM SHAH ADDL.PUBLIC PROSECUTOR(2) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                             Date : 01/12/2021

                                  ORAL ORDER

This Revision Application is filed by the State of Gujarat under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (herein after referred to as 'the Code') challenging the judgment of acquittal recorded by the learned Chief Judicial Magistrate, Bayad-Arvalli dated 14.05.2018 in favour of the respondent-accused in Criminal Case No.1191 of 2013, which came to be confirmed by the learned Additional Sessions Judge, Modasa, District: Arvalli vide an order dated 18.09.2019 in Criminal Appeal No.52 of 2018.

As per the case of the prosecution, the respondent- accused gave Rs.8,87,337/- through cheque, towards the potato seeds and amount lent, to the complainant, drawn on Nagrik Bank, Bayad Branch, which returned 'unpaid' and thereby accused are alleged to have committed criminal breach of trust and cheating with the complainant. It is further case of the prosecution that when the complainant went for demanding due money, he was threatened of dire consequences and abused by

R/CR.RA/168/2021 ORDER DATED: 01/12/2021

the accused. Pursuant to the same, the complainant registered a First Information Report and on conclusion of investigation, charge-sheet came to be filed against the respondents-accused for an offence under Sections 406, 420, 504, 506(2) and 114 of the Indian Penal Code.

It appears that in all 10 witnesses in support of the prosecution case came to be examined and 9 documents were produced and proved. After appreciating evidence led before the Court and hearing the parties, learned Magistrate acquitted the accused of the charge leveled against them.

Being aggrieved, the State preferred the aforesaid Criminal Appeal challenging the order of acquittal which also came to be dismissed, as aforesaid.

Heard Ms.C.M.Shah, learned Additional Public Prosecutor. According to her submission, the order of acquittal recorded by the learned Magistrate and confirmed by the appellate Court is erroneous, illegal and against the evidence on record. She has further submitted that towards the dues of the complainant, cheque was issued by the accessed and such cheque returned 'unpaid' and thereby the accused committed an offence, as aforesaid. She has further submitted that despite the evidence on record available, wrong finding of acquittal is recorded by the trial Court as also confirmed by the appellate Court. Therefore, she has submitted that this Revision Application may be admitted and allowed.

Considering the submission made as also perusing the order of learned Magistrate in detail as also the appellate Court

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along with evidence of witnesses provided by the learned APP, it is clear that there was commercial transaction between the complainant as also the accused. The complainant has not followed the proceedings after accused came to be acquitted by the competent Court. Surprisingly, State has challenged that order of acquittal, may be in a police case, even on dismissal of appeal, the State has chased the accused by way of this Revision Application. Going through both the decisions passed by the Competent Court, it is clear that complainant miserably failed to adduced any evidence in support of his assertion before the Court in the nature of documentary evidence. As recorded in the appellate Court's order at para-14, there is an admission on behalf of the complainant during the course of cross examination that he has not produced his books of account showing sale and purchase, as alleged, involved in the present transaction and he is not even ready to produce the same. It is further admission of the complainant in the cross examination that present complaint is prepared in his office at Kapadvanj in presence of his lawyer. He has further admitted that there is no whisper in the First Information Report that one Kiranbhai has beaten him up. After quoting in extenso the material omission admitted by the complainant having not stated in his complaint, the learned Judge has reached the conclusion acquitting the accused.

Not only that it is an admission in the cross examination of the complainant that the traders who trade in the market yard has to obtain a license. He has further admitted that normally in the market yard, there has to be printed bill book and receipt book. He has further admitted that the bills which are produced on record by the complainant Exh.54 to 59 do not bear license

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numbers. He has further admitted in his cross examination that Exh.54 to 59 are the bills issued on his letter pads where bill numbers are also not mentioned. He has further admitted that those bills are also not referred to in account books. He has further deposed that bills which are produced during the sale of potato for which market cess is paid despite that as per the admission, no evidence in support thereof by way of any receipt or payment of market cess is also produced. Thus, considering the overall evidence led before the Court, it appears that for pure and civil transaction, the complainant has invoked criminal jurisdiction prosecuting the respondent-accused. Over and above that, as per admission of the complainant himself that cheques which have been referred to in FIR for non payment thereof, he has already filed complaint in the Kapadvanj Court.

One witness, Fakirchand Durgadas, Exh.83 examined on behalf of the prosecution. As deposed to before the Court that he does not know anything about the complaint and in his presence nothing has happened. From the certified copy of the deposition of the said witness, it is clear that he is not even declared hostile. The panch witnesses examined before the Court have also not supported the case of prosecution. It appears to be only assertion of the complainant but there is no other independent witness examined to show that there is any cheating or criminal breach of trust, as aforesaid. On the contrary, the evidence which is led reflects pure and simple commercial transaction in between the parties i.e. complainant and accused. The complainant appears to have resorted to the criminal action which has been taken further till this Court by the State Government and first informant-complainant refrained from challenging even the order of acquittal. He may be within

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his right not to challenge an order of acquittal but in this case, State miserably failed to show any illegality or impropriety into the judgment of acquittal recorded by the trial Court as also confirmed by the appellate Court so as to interfere in it, in this revisional jurisdiction and hence, this Revision Application is rejected.

(UMESH A. TRIVEDI, J) ASHISH M. GADHIYA