Narayanlal Bherulal Kundara vs State Of Gujarat
2022 Latest Caselaw 383 Guj

     R/CR.MA/5206/2021                                       ORDER DATED: 12/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 5206 of 2021

                                      With
                         R/CRIMINAL APPEAL NO. 71 of 2022
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                         NARAYANLAL BHERULAL KUNDARA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR KARTIK V PANDYA(2435) for the Applicant(s) No. 1
MR PRADIP J PATEL(5896) for the Respondent(s) No. 2
MS CM SHAH APP(2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 12/01/2022

                                    ORAL ORDER

(PER : HONOURABLE MR. JUSTICE S.H.VORA)

Feeling aggrieved and dissatisfied with the judgment and order dated 18/02/2020 passed by the learned 2 nd Additional Sessions Judge, Bhavnagar rendered in Criminal Appeal No.54 of 2018 whereby the learned appeal Court quashed and set aside the judgment and order of conviction and sentence dated 27/04/2018 recorded by the learned JMFC, Umrala in Criminal Case No.13 of 2010, the appellant-original complainant has preferred this application to grant leave to appeal as provided under section 378(4) of the Code of Criminal Procedure, 1973 ("the Code" for short).

2. Brief facts leading to the filing of the complaint can be stated thus:

R/CR.MA/5206/2021 ORDER DATED: 12/01/2022

2.1 Respondent No.2 was serving as Sub-Post Master at Dhola Sub Post Office and during his service and in discharge of his official duty, he was to collect telephone revenue and same was to be deposited in the government account. That on 29/10/2008, respondent No.2 received telephone revenue in the sum of Rs.9,310/-; but the said amount was not deposited / credited in the government account till 01/01/2009 and thus he misappropriated the government fund and booked for the offences punishable under Sections 409 and 420 of the Indian Penal Code and complaint being CR No.66 of 2009 came to be filed before Umrala Police Station.

3. Respondent No.2 faced the trial and not pleaded guilty and ultimately charge came to be framed by learned JMFC, Umrala and at the end of the trial, learned JMFC, Umrala convicted respondent No.2 for the offence punishable under Section 409 of IPC and sentenced him to undergo SI for three months with fine of Rs.2,000/-; in default to undergo SI for 15 days.

4. Upon challenge of the said judgment and order of conviction by respondent No.2 before the learned appeal Court, the learned appeal Court quashed and set aside the said judgment and order of conviction and sentence recorded by the learned trial Court and therefore, present appeal is filed by respondent No.2 under Section 378 of the Code.

5. We have heard learned Advocate Mr.Kartik Pandya appearing for the original complainant at length and thoroughly examined the judgment and order of both the Courts below and findings of fact recorded by the learned

R/CR.MA/5206/2021 ORDER DATED: 12/01/2022

appeal Court on its re-assessment and re-analysis of the evidence adduced before the learned trial Court. According to learned Advocate Mr.Pandya, the learned appeal Court has erred in appreciating the reasons recorded by the learned trial Court convicting the respondent No.2 for the offence punishable under Section 409 of IPC and therefore, the learned appeal Court has erred in quashing and setting aside the well reasoned judgment though the learned trial Court after appreciating oral as well as documentary evidence came to the conclusion that respondent No.2 is guilty of misappropriation of amount and convicted him. It is further submitted by learned Advocate Mr.Pandya that the learned appeal Court has misread the evidence involving respondent No.2 and therefore, order of acquittal is illegal, arbitrary, perverse and contrary to the evidence recorded by the learned trial Court in light of the principle settled by the Hon'ble Apex Court in State of Himachal Pradesh v. Karanvir [2006 (5) SCC 381].

6. It is not in dispute that respondent No.2 was serving as Sub-Post Master at Dhola Sub-Post Office and he received a sum of Rs.9,310/- on 29/10/2008 and deposited in the government account only on 01/01/2009. The short question which arises for consideration in this appeal is as to whether having regard to the facts and circumstances of this case, the prosecution has been able to prove that respondent No.2 misappropriated the said amount of Rs.9,310/-.

7. There is no doubt in our mind that respondent No.2 was holding the office of public trust and the moment he received the money towards telephone revenue, it becomes public money and therefore, it was to be deposited / credited in the

R/CR.MA/5206/2021 ORDER DATED: 12/01/2022

government account. It is a matter of fact that the said amount remained with respondent No.2 for about two months.

8. The learned appeal Court in great detail has appreciated the evidence of prosecution witnesses, more particularly, in paragraph 23 to 30. In sum and substance, it has come on record that at relevant point of time, respondent No.2 was holding the charge of other employee and at relevant point of time, in the Post Office, only one employee alongwith respondent No.2 was present. On the date of receipt of sum of Rs.9,310/-, respondent No.2 was only available on duty. It has also come on record that there was heavy work-load and for the said period, huge money transaction took place and further computer was also not working. It is not the case of the prosecution that any document is manipulated or any alteration is made in the record or any inquiry came to be initiated by the Government or deficit is found in the audit report. It has come on record that cash at the end was tallied and everyday account of lakhs of rupees was handled by respondent No.2 and on the day of incident, there was receipt of about Rs.2,60,000/- under the different head. It is because of non-payment of telephone bill, after two months, it came to the knowledge of the prosecution witness No.2-Mr.Gohil that telephone bill is not paid and in turn, respondent No.2 came to know about it and immediately respondent No.2 deposited the money with interest. Thus, the learned appeal Court has come to the conclusion after re-appreciation of evidence that there was no mens rea to commit any offence; but it is the case of negligent in discharge of duty by respondent No.2 and therefore, in absence of mens rea, the learned appeal Court has rightly acquitted the respondent No.2 by quashing and

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setting the judgment and order of conviction and sentence rendered by the learned trial Court.

9. For the foregoing reasons more particularly recorded in paragraph 23 to 30 of impugned judgment and after hearing learned Advocate Mr.Pnadya, we do not find any impropriety or illegality in the judgment and order of learned appeal Court and no second view is possible in light of the findings recorded by the learned appeal Court both on facts and law. Accordingly, present application for leave to appeal fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, captioned Criminal Appeal also deserves to be dismissed and is accordingly dismissed.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) sompura