Pankaj N.Vaidhya vs M/S. Petrochem Industries, A ...
2022 Latest Caselaw 3759 Guj

    R/CR.A/2182/2005                                CAV JUDGMENT DATED: 30/03/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 2182 of 2005


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== PANKAJ N.VAIDHYA Versus M/S. PETROCHEM INDUSTRIES, A PROPRIETORY FIRM & 2 other(s) ========================================================== Appearance:

MR DEEPAK G ALORIA(6580) for the Appellant(s) No. 1 MR MAULIN G PANDYA(3999) for the Opponent(s)/Respondent(s) No. 1,2 NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2 MR RC KODEKAR, ADDL PUBLIC PROSECUTOR for the

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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 30/03/2022

CAV JUDGMENT

1. The present appeal, under section 378(5) of the Code of

Criminal Procedure, 1973, is directed against the judgment and

order of acquittal dated 04.05.2002 passed by the learned Chief

R/CR.A/2182/2005 CAV JUDGMENT DATED: 30/03/2022

Judicial Magistrate, Surat, in Criminal Case No. 2058 of 1996,

whereby the learned Magistrate has acquitted the respondents

- accused from the charges levelled against them.

2. The brief facts of the prosecution case is that the

respondent No. 1 is the proprietary firm and respondents No.2

is the proprietor of the said firm. It is alleged that the

respondent No.2 is responsible and liable for day to day affairs

of the company and he is discharging the polluted water

without any process or treatment in open land as well as in

the river. It is alleged that respondents are discharging large

quantity of polluted water in the open land and in the river

and they have not taken any kind of permission for that. It is

alleged that on 22.03.1996 the officers of the Board have

visited the factory premises for inspection and took the sample

of effluent water which was sent for analysis. It is alleged that

the Public Analyst submitted the Report and as per the said

Report it was found that the accused have committed the

breach of Sections 24, 25, 43. 44 and 47 of the Prevention of

Water Pollution Control Act., and therefore, after obtaining

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sanction complaint has been filed against the respondents -

accused. Thereafter, the trial was conducted against the

respondents - accused. The trial Court examined the witnesses

and also considered the documentary evidence led before it

and after considering the documentary as well as oral evidence

has acquitted the respondents - accused from the charges

levelled against them.

3. It was contended by learned Advocate Mr. Deepak G. Aloria

for the appellant that the judgment and order of the learned

Magistrate is not proper, legal and it is erroneous. He has also

contended that the learned Magistrate has not considered the

evidence of the witnesses. He has contended that the Board

Officers have followed the rules prescribed by law and the

Officer of the Board have also followed the procedure of taking

the sample. The sample was seized and sealed properly. Yet,

the learned Magistrate has not considered the evidence of

prosecution. Therefore, the order impugned in this appeal

passed by the learned Magistrate requires to be quashed and

set aside.

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4. Learned Advocate Mr. Maulik G. Pandya, appearing for the

respondents - original accused, has supported the judgment

and order of acquittal passed by the trial Court and contended

that the trial Court has rightly acquitted the respondents -

accused.

5. It is a settled legal position that in acquittal appeal, the

Appellate Court is not required to re-write the judgment or to

give fresh reasoning when the Appellate Court is in agreement

with the reasons assigned by the trial court acquitting the

accused. In the instant case, this Court is in full agreement

with the reasons given and findings recorded by the trial Court

while acquitting the respondents- accused and adopting the

said reasons and for the reasons aforesaid, in my view, the

impugned judgment is just, legal and proper and requires no

interference by this Court at this stage. From the perusal of

record it appears from the cross examination of the

complainant that the complainant has no personal information

about the alleged offence and that he has not personally

visited the premises of respondent firm and on the bais of this

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fact, the trial Court has came to the conclusion that

complainant is only formal complainant and his evidence

cannot be taken into consideration while deciding the case.

6. In a decision of the Apex Court in the case of State of Goa

V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75 , the

Court has reiterated the powers of the High Court in such

cases. In para 16 of the said decision the Court has observed

as under:

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

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7. Similar principle has been laid down by the Apex Court in

the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors,

reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by

LRs Vs. state of MP, reported in 2007 AIR SCW 5589 . Thus,

the powers which this Court may exercise against an order of

acquittal are well settled.

8. It is also a settled legal position that in acquittal appeal,

the appellate court is not required to re-write the judgment or

to give fresh reasonings, when the reasons assigned by the

Court below are found to be just and proper. Such principle is

laid down by the Apex Court in the case of State of Karnataka

Vs. Hemareddy, reported in AIR 1981 SC 1417.

9. Thus, in case the appellate court agrees with the reasons

and the opinion given by the lower court, then the discussion

of evidence is not necessary.

10. I have gone through the judgment and order passed by the

trial court. I have also perused the oral as well as

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documentary evidence led by the trial court and also

considered the submissions made by learned Advocate for the

appellant. The trial court while considering the oral as well as

documentary evidence has clearly observed that the

complainant has no personal knowledge and as per the

instruction he has filed complaint. The trial Court has observed

that from the evidence it is difficult fo believe whether the

sanction to file complaint to the complainant is legal. The trial

Court has also observed that the prosecution has not examined

the Board Analyst who can be said to be an expert. The trial

Court has clearly found that the prosecution has failed to

prove its case beyond reasonable doubt. Even in the present

appeal, nothing is produced or pointed out to rebut the

conclusion of the trial Court. Thus, from the evidence itself it

is established that the prosecution has not proved its case

beyond reasonable doubt.

11. In the above view of the matter, I am of the considered

opinion that the trial court was completely justified in

acquitting the respondent of the charges leveled against him.

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12. I find that the findings recorded by the trial court are

absolutely just and proper and in recording the said findings,

no illegality or infirmity has been committed by it.

13. I am, therefore, in complete agreement with the findings,

ultimate conclusion and the resultant order of acquittal

recorded by the court below and hence find no reasons to

interfere with the same. Hence the appeal is hereby dismissed.

The Judgment and order dated 04.05.2002 passed by learned

Chief Judicial Magistrate, Surat, in Criminal Case No.2058 of

1996 is hereby conformed. R & P to be sent back to the trial

Court, forthwith. Bail bond, if any, stands cancelled.

(RAJENDRA M. SAREEN,J) DRASHTI K. SHUKLA