Ashokbhai Devabhai Moliya vs State Of Gujarat
2022 Latest Caselaw 667 Guj

     R/CR.MA/13716/2021                            ORDER DATED: 20/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 13716 of 2021

                    In R/CRIMINAL APPEAL NO. 1081 of 2021

                                    With
                      R/CRIMINAL APPEAL NO. 1081 of 2021
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                          ASHOKBHAI DEVABHAI MOLIYA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1
for the opponent(s) No. 2
MS CM SHAH, ADDL. PUBLIC PROSECUTOR(2) for the opponent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 20/01/2022

                              ORAL ORDER

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

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 10.5.2021 passed by the learned 14 th Addl. Chief Judicial Magistrate, Rajkot in Criminal Case No.7605/2008 of 2019, whereby the opponent accused Mr. Maheshbhai Hapaliya came to be acquitted for the offences under sections 406, 465, 467, 468, 471 of IPC, the applicant 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. The applicant herein is a legal heir of Mr.Devabhai Moliya, who was the original complainant in connection with the FIR registered as I - C.R. No.506 of 2007 before the Rajkot Taluka

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Police Station on 15.11.2007 filed against the private opponent herein for the aforesaid offences.

3. In pursuance of the complaint lodged by the complainant, the said case was investigated by the investigating agency, who filed charge-sheet before the competent Court on 17.1.2008, which resulted into registration of Criminal Case No.7605 of 2008. According to the original complainant, it is his case that the private opponent had fraudulently obtained signature of his father i.e. the original complainant on blank papers under the pretext of obtaining loan for carrying out business of animal husbandry on the land bearing revenue survey Nos. 90,. 93, 108 and 207 paiki admeasuring 17 acre and 19 guntha situated in village Mahida. It is the case of the original complainant that the opponent accused fraudulently obtained signature of the original complainant in various blank papers for the purpose of procuring loan. However, the said papers were misused by the opponent accused and on the said papers, he wrote Promissory Note as well as agreement to sell and on the strength of the same, the opponent accused filed frivolous suit against the original complainant.

4. The learned trial Judge framed charge at Exh.19 against the opponent accused for the aforesaid offence. The opponent accused pleaded not guilty and claimed to be tried.

5. In order to bring home charge, the prosecution has examined 15 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 4 of the impugned judgment and order.

6. On conclusion of evidence on the part of the prosecution,

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the trial Court put various incriminating circumstances appearing in the evidence to the opponent accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the opponent accused denied all incriminating circumstances appearing against him as false and further stated that no any incident/offence took place, as alleged in the complaint. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the opponent accused of the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt.

7. We have heard learned advocate Mr. Pratik Jasani for the applicant - son of the complainant and reassessed and reanalyzed the evidence adduced by the complainant before the learned trial Court.

8. At the outset, learned advocate Mr. Jasani submits that the original agreement and Promissory Note were not procured/produced on record and therefore, the learned trial judge has disbelieved the case under the provisions of section 465, 467, 468 and 471 of the IPC, but he has vehemently argued that the complainant has made out a case u/s 406 of the IPC, inasmuch as the opponent accused misused the documents bearing signature of the original complainant by inserting writings in the body of the document and thus, created land transaction and therefore, the opponent accused has committed criminal breach of trust. In support of the submission, he took us to the deposition of relevant witnesses and also agreement and Promissory Note. In order to show that the original complainant and the opponent accused were to obtain loan for carrying business of animal husbandry on the subject land and

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for that, the original complainant put his signature on blank papers. Whereas, the opponent accused inserted writings in the body of the document and above the signature of the original complainant so as to make a show of land transaction and filed civil suit against the original complainant.

9. We have extensively heard learned advocate Mr. Jasani for the applicant. It is the specific case of the complainant that he came to know about the disputed documents only on 16.10.2007 when the opponent accused filed complaint against him and therefore, he lodged present complaint on 15.11.2007. Surprisingly, the said statement of fact deposed before the learned trial Court is far from truth. The obvious reason is such that the original complainant filed two caveat applications before the civil Court on 22.6.2007 and 6.11.2007 produced at Exhs.39A and 42. In the caveat applications, the original complainant specifically refers the dispute with regard to the land and the land transaction. In the caveat applications, the original complainant states that he has not entered into any land transaction and therefore, if any suit is filed by the opponent accused, then the original complainant may be heard. Though the original complainant in his deposition refused any knowledge of the suit with regard to the subject land, but filing of the caveat at the end of the original complainant prima facie shows that before filing of the complaint on 15.11.2007, he was well aware about the land transaction and also proposed action to be taken by the opponent accused in the civil Court. As such, the original complainant was served with the summons of the civil suit, but he has shown ignorance in the cross-examination about filing of the suit. Apart from it, there is no any iota of evidence as to how and in what manner, the writings on the sale agreement and

R/CR.MA/13716/2021 ORDER DATED: 20/01/2022

Promissory Note Exhs.37 and 38 came to be inserted/created and by whom. No any FSL report is obtained or handwriting expert's opinion is obtained so as to bring on record that writings in the body of the document were inserted later on by the opponent accused to create land transaction. In this regard, we have also gone through the evidence of the witnesses examined at Exhs.45, 46 and 47 and they have not disclosed anything about the signature of witnesses, namely Mr. Chhaganbhai Keshavji and Mr. Nimesh Chunilal and simply stated that the orignal complainant handed over two documents, namely, agreement and Promissory Note duly signed by the original complainant. In our considered opinion, there are no sufficient evidence to prove the guilt of the opponent accused. Neither the act of forgery nor the act of breach of trust stands proved. The original complainant relies upon the evidence of the witnesses to establish that the disputed papers were blank when it were handed over to the opponent accused. The oral depositions of witnesses, who signed the disputed document though denied to have signed the document, but no any investigation as to forgery of the signature of the said two witnesses, namely Mr. Chhaganbhai Keshavji and Mr. Nimesh Chunilal. In absence of cogent and reliable evidence, the learned trial judge has rightly disbelieved the case of the complainant. For the sake of repetition, it needs to be noted that the original complainant remained silent from the year 2004 to 2007 till he filed complaint on 15.11.2007 and in order to cover up the silence, he falsely deposed before the Court that he came to know about forgery of the documents only on 16.10.2007, which in fact is not correct statement of facts made by the original complainant if we read two caveat applications filed by the original complainant and also denial of knowledge with regard to filing of

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the suit though he had already appeared. Under the circumstances, the learned trial Judge has rightly acquitted the opponent accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal.

10. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

11. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:

"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."

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12. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

13. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

14. In view of the above and for the reasons stated above, 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) SHEKHAR P. BARVE