Gujarat High Court
State Of Gujarat vs Ishwarchand Misharimal Jain ... on 11 October, 2022
Bench: Ashokkumar C. Joshi
R/CR.A/1581/2009 JUDGMENT DATED: 11/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1581 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
ISHWARCHAND MISHARIMAL JAIN (OWNER C/O MAHAVIR
CABLES(INDIA) & 1 other(s)
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Appearance:
MR LB DABHI, APP for the Appellant(s) No. 1
MR LR PATHAN with MR MA SAPA (2634) for the
Opponent(s)/Respondent(s) No. 1,2
MR MOHD.HANIF SHAIKH(3547) for the Opponent(s)/Respondent(s) No. 1,2
================================================================
CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 11/10/2022
ORAL JUDGMENT
1. Being aggrieved and dissatisfied by the judgment and order
dated 19.11.2008 passed by the learned Judicial Magistrate,
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First Class, Lunawada, in Criminal Case No.36 of 1994 below
Exh.49, the State has moved the present Appeal under Section
378(4) of the Code of Criminal Procedure.
2. The factual matrix of the complaint is that on 24 th March
1992 the complainant had visited the shop in the name and style
of Sohil Electric falling into his area at Lunawada, wherein the
packed electrical articles were lying in the shop for selling, such
as, fluorescent tube-lights, wherein one packet of Lion Brand
containing picture of Lady Bombay-2 was there. However, on the
said packing material of packet, as per law, the particulars of the
packers' name & address, year of packing and other particulars
regarding tax did not mention on it and thereby the accused
persons have committed offence punishable under Section 39 of
the Standards of Weights and Measures Act, 1976, read with
Rule 6 of the Standards of Weights and Measures (Packaged
Commodities) Rules, 1977.
3. The State has taken various counts. One such count is
that the judgment and order passed by the learned Magistrate is
contrary to law and evidence on record. Secondly, the learned
Magistrate has erred in holding that the prosecution has failed to
establish its case beyond reasonable doubt. It is also contended
that perusing the deposition of the witness Karansinh
Chandrasinh Solanki, it appears that the witness has also
deposed about the procedure laid down by him, and ultimately,
the learned Magistrate has failed to consider the same.
Ultimately, a ground has been taken that it ought to have been
appreciated so long as the chief examination of the complainant
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is concerned and, therefore, the State has prayed to set aside the
judgment and order passed by the learned Magistrate since the
order of acquittal is contrary to law and evidence on record.
4. Learned APP Mr.L.B.Dabhi for the State has heavily placed
reliance upon the deposition of the competent Inspector of the
concerned department and also placed reliance upon different
documents and contended that the learned Magistrate has failed
to appreciate the evidence on record in its true and proper
perspective and thereby committed error in recording the
acquittal of the accused persons for the offences punishable
under the provisions of the Standards of Weights and Measures
Act.
5. Per contra, learned counsel Mr.L.R.Pathan appearing with
Mr.M.A.Sapa for accused nos.1 & 2 has heavily contended that
upon bare perusal of the judgment and order passed by the
learned Magistrate, it appears that there is no requirement to
interfere with the same since the requisite procedure under law
has not been followed. He further contended that the offence has
been committed on 24th March 1992, whereas the captioned bill
is a postdated bill of April 1992. The captioned bill is also
required to be produced. Therefore, the learned Magistrate has
rightly awarded acquittal to the accused persons and there is no
requirement to interfere with the judgment and order passed by
the learned Magistrate.
6. Having heard the learned counsel for the parties and
having gone through the arguments advanced by both the sides,
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before adverting to the merits of the case, it would be worthwhile
to refer the scope of interference in acquittal appeals. It is well
settled by catena of decisions that an appellate court has full
power to review, re-appreciate and reconsider the evidence upon
which the order of acquittal is founded. However, the appellate
court must bear in mind that in case of acquittal, there is
prejudice in favour of the accused; firstly, the presumption of
innocence is available to him under the fundamental principle of
criminal jurisprudence that, every person shall be presumed to
be innocent unless he is proved guilty by a competent court of
law and secondly, the accused, having secured his acquittal, the
presumption of his innocence is further reaffirmed and
strengthened by the trial court.
7. The prosecution has testified Karansinh Chandrasinh
Solanki, PW1 Exh.23. The PW1 appears to be a Junior Inspector
in the Weights and Measures Department. He has deposed about
the procedure carried out by him and stated that he had carried
out the inspection of the shop of the accused persons on 24 th
March 1992 and there were different items found for selling
including fans, tube-lights, bulbs fluorescent tube-lights,
electrical goods, etc. He further deposed that one packet of Lion
Brand containing picture of Lady Bombay-2 was also found. The
PW1, in his examination-in-chief, has deposed that as per law
the item should contain the name & address of the seller,
packing date, price, tax details, etc. and the same is not
observed, therefore, the accused persons have committed
offences for violating Section 39 of the Standards of Weights and
Measures Act, 1976, read with Rule 6 of the Standards of
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Weights and Measures (Packaged Commodities) Rules, 1977,
and he proceeded in presence of panchas independent witnesses
and availed the packet and the same is seized. It is further
contended that after due procedure the complaint was filed
against the accused persons. This witness was duly cross-
examined by the learned defence counsel at the trial court,
wherein, at the outset, he admitted that whatever the items
which have been shown in the panchnama were not seized or
rather they were not shown in the panchnama nor it was
informed to the concerned department. It is also categorically
admitted that so long as the name of the firm or the name of the
company is concerned, the higher officer is to inquire and
investigate the same. It is also admitted that this witness, who is
a Junior Inspector, has not investigated the owner of Mahavir
Cables India, who is the manufacturer of the captioned goods. It
is also admitted that he has collected the bill at the captioned
time and the same is produced at the head office. In the opinion
of this Court, while perusing the captioned bill at page no.67 of
the paper book, it is dated 12.04.1992, whereas the present
offence is committed on 24.03.1992, therefore, the learned
Magistrate has rightly observed that the captioned bill is not
produced. However, even if we consider that the bill is produced,
then in that case also, it is postdated bill. Therefore, in the
opinion of the court, two views are possible. 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 the 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
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error of law and ignored the material evidence on record. In such
circumstances, a duty is cast upon the appellate court to re-
appreciate the evidence to arrive at just conclusion, on the basis
of materials placed on record, to find out whether the accused is
connected with the commission of the crime with which he is
charged.
8. It would be worthwhile to refer to the landmark judgments,
more particularly, Mallikarjun Kodagali (Dead) represented
through Legal Representatives vs. State of Karnataka and
Others, (2019) 2 SCC 752, to substantiate the charge against the
accused persons. In Mallikarjun Kodagali (supra), the Hon'ble
Supreme Court has observed that:
"The presumption of innocence which is attached to every
accused gets fortified and strengthened when the said
accused is acquitted by the trial Court. Probably, for this
reason, the law makers felt that when the appeal is to be
filed in the High Court it should not be filed as a matter of
course or as a matter of right but leave of the High Court
must be obtained before the appeal is entertained. This
would not only prevent the High Court from being flooded
with appeals but more importantly would ensure that
innocent persons who have already faced the tribulation of
a long drawn out criminal trial are not again unnecessarily
dragged to the High Court".
9. Yet in another decision in Chaman Lal vs. The State of
Himachal Pradesh (Criminal Appeal No. 1229 of 2017,
R/CR.A/1581/2009 JUDGMENT DATED: 11/10/2022
decided on 03.12.2020), 2020 SCC OnLine SC 988, the Hon'ble
Supreme Court has observed as under:
"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC
189), this Court had reiterated the principles to be followed
in an appeal against acquittal under Section 378 Cr.P.C. In
paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the
guidelines for the High Court to interfere with the
judgment and order of acquittal passed by the trial
court. The appellate court should not ordinarily set
aside a judgment of acquittal in a case where two
views are possible, though the view of the appellate
court may be the more probable one. While dealing
with a judgment of acquittal, the appellate court has to
consider the entire evidence on record, so as to arrive
at a finding as to whether the views of the trial court
were perverse or otherwise unsustainable. The
appellate court is entitled to consider whether in
arriving at a finding of fact, the trial court had failed to
take into consideration admissible evidence and/or
had taken into consideration the evidence brought on
record contrary to law. Similarly, wrong placing of
burden of proof may also be a subject-matter of
scrutiny by the appellate court. (Vide Balak Ram v.
State of U.P (1975) 3 SCC 219, Shambhoo Missir v.
State of Bihar (1990) 4 SCC 17, Shailendra Pratap v.
State of U.P (2003) 1 SCC 761, Narendra Singh v.
R/CR.A/1581/2009 JUDGMENT DATED: 11/10/2022
State of M.P (2004) 10 SCC 699, Budh Singh v. State
of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer
Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami
Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10
SCC 206, Perla Somasekhara Reddy v. State of A.P
(2009) 16 SCC 98 and Ram Singh v. State of H.P
(2010) 2 SCC 445)
13. In Sheo Swarup v. King Emperor AIR 1934 PC
227, the Privy Council observed as under: (IA p. 404)
"... the High Court should and will always give
proper weight and consideration to such matters
as (1) the views of the trial Judge as to the
credibility of the witnesses; (2) the presumption
of innocence in favour of the accused, a
presumption certainly not weakened by the fact
that he has been acquitted at his trial; (3) the
right of the accused to the benefit of any doubt;
and (4) the slowness of an appellate court in
disturbing a finding of fact arrived at by a Judge
who had the advantage of seeing the
witnesses."
14. The aforesaid principle of law has consistently
been followed by this Court. (See Tulsiram Kanu v.
State AIR 1954 SC 1, Balbir Singh v. State of Punjab
AIR 1957 SC 216, M.G. Agarwal v. State of
Maharashtra AIR 1963 SC 200, Khedu Mohton v. State
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of Bihar (1970) 2 SCC 450, Sambasivan v. State of
Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of
M.P(2002) 4 SCC 85 and State of Goa v. Sanjay
Thakran (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4
SCC 415, this Court reiterated the legal position as
under: (SCC p. 432, para 42)
"(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts
no limitation, restriction or condition on exercise
of such power and an appellate court on the
evidence before it may reach its own conclusion,
both on questions of fact and of law.
(3) Various expressions, such as, 'substantial
and compelling reasons', 'good and sufficient
grounds', 'very strong circumstances', 'distorted
conclusions', 'glaring mistakes', etc. are not
intended to curtail extensive powers of an
appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of
'flourishes of language' to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
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review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him
under the fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible
on the basis of the evidence on record, the
appellate court should not disturb the finding of
acquittal recorded by the trial court."
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450,
this Court reiterated the said view, observing that the
appellate court in dealing with the cases in which the
trial courts have acquitted the accused, should bear in
mind that the trial court's acquittal bolsters the
presumption that he is innocent. The appellate court
must give due weight and consideration to the decision
of the trial court as the trial court had the distinct
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advantage of watching the demeanour of the
witnesses, and was in a better position to evaluate the
credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC
368, the Court again examined the earlier judgments
of this Court and laid down that: (SCC p. 374, para 20)
"20. ... an order of acquittal should not be lightly
interfered with even if the court believes that
there is some evidence pointing out the finger
towards the accused."
18. In State of U.P. v. Banne (2009) 4 SCC 271, this
Court gave certain illustrative circumstances in which
the Court would be justified in interfering with a
judgment of acquittal by the High Court. The
circumstances include: (SCC p. 286, para 28) "(i) The
High Court's decision is based on totally erroneous
view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary
to evidence and documents on record;
(iii) The entire approach of the High Court in
dealing with the evidence was patently illegal
leading to grave miscarriage of justice;
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(iv) The High Court's judgment is manifestly
unjust and unreasonable based on erroneous
law and facts on the record of the case;
(v) This Court must always give proper weight
and consideration to the findings of the High
Court;
(vi) This Court would be extremely reluctant in
interfering with a case when both the Sessions
Court and the High Court have recorded an order
of acquittal." A similar view has been reiterated
by this Court in Dhanapal v. State (2009) 10 SCC
19. Thus, the law on the issue can be summarised to
the effect that in exceptional cases where there are
compelling circumstances, and the judgment under
appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate
court should bear in mind the presumption of
innocence of the accused and further that the trial
court's acquittal bolsters the presumption of his
innocence. Interference in a routine manner where the
other view is possible should be avoided, unless there
are good reasons for interference."
9.2 When the findings of fact recorded by a court can be
held to be perverse has been dealt with and considered in
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paragraph 20 of the aforesaid decision, which reads as
under:
"20. The findings of fact recorded by a court can be
held to be perverse if the findings have been arrived at
by ignoring or excluding relevant material or by taking
into consideration irrelevant/inadmissible material.
The finding may also be said to be perverse if it is
"against the weight of evidence", or if the finding so
outrageously defies logic as to suffer from the vice of
irrationality. (Vide Rajinder Kumar Kindra v. Delhi
Admn (1984) 4 SCC 635, Excise and Taxation Officer-
cum-Assessing Authority v. Gopi Nath & Sons 1992
Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE
1994 Supp. (3) SCC 665, Gaya Din v. Hanuman
Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10
SCC 206 and Gamini Bala Koteswara Rao v. State of
A.P (2009) 10 SCC 636)."
9.3 It is further observed, after following the decision of
this Court in the case of Kuldeep Singh v. Commissioner of
Police (1999) 2 SCC 10, that if a decision is arrived at on the
basis of no evidence or thoroughly unreliable evidence and
no reasonable person would act upon it, the order would be
perverse. But if there is some evidence on record which is
acceptable and which could be relied upon, the conclusions
would not be treated as perverse and the findings would not
be interfered with.
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9.4 In the recent decision of Vijay Mohan Singh v. State of
Karnataka, (2019) 5 SCC 436, this Court again had an
occasion to consider the scope of Section 378 Cr.P.C. and
the interference by the High Court in an appeal against
acquittal. This Court considered catena of decisions of this
Court right from 1952 onwards. In paragraph 31, it is
observed and held as under :
"31. An identical question came to be considered
before this Court in Umedbhai Jadavbhai (1978) 1 SCC
228. In the case before this Court, the High Court
interfered with the order of acquittal passed by the
learned trial court on reappreciation of the entire
evidence on record. However, the High Court, while
reversing the acquittal, did not consider the reasons
given by the learned trial court while acquitting the
accused. Confirming the judgment of the High Court,
this Court observed and held in para 10 as under:
(SCC p. 233)
"10. Once the appeal was rightly entertained
against the order of acquittal, the High Court
was entitled to reappreciate the entire evidence
independently and come to its own conclusion.
Ordinarily, the High Court would give due
importance to the opinion of the Sessions Judge
if the same were arrived at after proper
appreciation of the evidence. This rule will not be
applicable in the present case where the
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Sessions Judge has made an absolutely wrong
assumption of a very material and clinching
aspect in the peculiar circumstances of the case."
31.1. In Sambasivan v. State of Kerala (1998) 5 SCC
412, the High Court reversed the order of acquittal
passed by the learned trial court and held the accused
guilty on reappreciation of the entire evidence on
record, however, the High Court did not record its
conclusion on the question whether the approach of the
trial court in dealing with the evidence was patently
illegal or the conclusions arrived at by it were wholly
untenable. Confirming the order passed by the High
Court convicting the accused on reversal of the
acquittal passed by the learned trial court, after being
satisfied that the order of acquittal passed by the
learned trial court was perverse and suffered from
infirmities, this Court declined to interfere with the
order of conviction passed by the High Court.
While confirming the order of conviction passed by the
High Court, this Court observed in para 8 as under:
(SCC p. 416)
"8. We have perused the judgment under appeal
to ascertain whether the High Court has
conformed to the aforementioned principles. We
find that the High Court has not strictly
proceeded in the manner laid down by this Court
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in Ramesh Babulal Doshi v. State of Gujarat
(1996) 9 SCC 225 viz. first recording its
conclusion on the question whether the approach
of the trial court in dealing with the evidence was
patently illegal or the conclusions arrived at by it
were wholly untenable, which alone will justify
interference in an order of acquittal though the
High Court has rendered a well-considered
judgment duly meeting all the contentions raised
before it. But then will this non-compliance per se
justify setting aside the judgment under appeal?
We think, not. In our view, in such a case, the
approach of the court which is considering the
validity of the judgment of an appellate court
which has reversed the order of acquittal passed
by the trial court, should be to satisfy itself if the
approach of the trial court in dealing with the
evidence was patently illegal or conclusions
arrived at by it are demonstrably unsustainable
and whether the judgment of the appellate court
is free from those infirmities; if so to hold that the
trial court judgment warranted interference. In
such a case, there is obviously no reason why
the appellate court's judgment should be
disturbed. But if on the other hand the court
comes to the conclusion that the judgment of the
trial court does not suffer from any infirmity, it
cannot but be held that the interference by the
appellate court in the order of acquittal was not
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justified; then in such a case the judgment of the
appellate court has to be set aside as of the two
reasonable views, the one in support of the
acquittal alone has to stand. Having regard to
the above discussion, we shall proceed to
examine the judgment of the trial court in this
case."
31.2. In K. Ramakrishnan Unnithan v. State of Kerala
(1999) 3 SCC 309, after observing that though there is
some substance in the grievance of the learned
counsel appearing on behalf of the accused that the
High Court has not adverted to all the reasons given
by the trial Judge for according an order of acquittal,
this Court refused to set aside the order of conviction
passed by the High Court after having found that the
approach of the Sessions Judge in recording the order
of acquittal was not proper and the conclusion arrived
at by the learned Sessions Judge on several aspects
was unsustainable. This Court further observed that
as the Sessions Judge was not justified in discarding
the relevant/material evidence while acquitting the
accused, the High Court, therefore, was fully entitled
to reappreciate the evidence and record its own
conclusion. This Court scrutinised the evidence of the
eyewitnesses and opined that reasons adduced by the
trial court for discarding the testimony of the
eyewitnesses were not at all sound. This Court also
observed that as the evaluation of the evidence made
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by the trial court was manifestly erroneous and
therefore it was the duty of the High Court to interfere
with an order of acquittal passed by the learned
Sessions Judge.
31.3. In Atley v. State of U.P. AIR 1955 SC 807, in
para 5, this Court observed and held as under: (AIR
pp. 809-10)
"5. It has been argued by the learned counsel for
the appellant that the judgment of the trial court
being one of acquittal, the High Court should not
have set it aside on mere appreciation of the
evidence led on behalf of the prosecution unless
it came to the conclusion that the judgment of the
trial Judge was perverse. In our opinion, it is not
correct to say that unless the appellate court in
an appeal under Section 417 Cr.P.C came to the
conclusion that the judgment of acquittal under
appeal was perverse it could not set aside that
order.
It has been laid down by this Court that it is open to
the High Court on an appeal against an order of
acquittal to review the entire evidence and to come to
its own conclusion, of course, keeping in view the well-
established rule that the presumption of innocence of
the accused is not weakened but strengthened by the
judgment of acquittal passed by the trial court which
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had the advantage of observing the demeanour of
witnesses whose evidence have been recorded in its
presence.
It is also well settled that the court of appeal has as
wide powers of appreciation of evidence in an appeal
against an order of acquittal as in the case of an
appeal against an order of conviction, subject to the
riders that the presumption of innocence with which
the accused person starts in the trial court continues
even up to the appellate stage and that the appellate
court should attach due weight to the opinion of the
trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping
those principles in mind, and comes to a contrary
conclusion, the judgment cannot be said to have been
vitiated. (See in this connection the very cases cited at
the Bar, namely, Surajpal Singh v. State AIR 1952 SC
52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In
our opinion, there is no substance in the contention
raised on behalf of the appellant that the High Court
was not justified in reviewing the entire evidence and
coming to its own conclusions.
31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC
355, this Court has observed that where the trial court
allows itself to be beset with fanciful doubts, rejects
creditworthy evidence for slender reasons and takes a
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view of the evidence which is but barely possible, it is
the obvious duty of the High Court to interfere in the
interest of justice, lest the administration of justice be
brought to ridicule.""
10. At this juncture, a beneficial reference may also be made to
a decision of the Hon'ble Supreme Court in the case of Lalit
Kumar and Ors. vs. Superintendent and Remembrancer of
Legal Affairs, Govt. of W.B., reported in AIR 1989 SC 2134,
wherein the Hon'ble Supreme Court has held that:
"It is now well settled that the power of an appellate Court
to review evidence in appeals against acquittal is an
extensive as its powers in appeals against convictions, but
that power is with a note of caution that the appellate Court
should be slow in interfering with the orders of acquittal
unless there are compelling reasons to do so. If a finding
reached by the trial Judge cannot be said to be an
unreasonable finding, then the appellate Court should not
disturb that finding even if it is possible to reach a different
conclusion on the basis of the material on record."
11. The prosecution has also examined Girishkumar Dalsinh
Parmar, PW2 at Exh.28. This witness has deposed that at the
relevant point of time he was working as Junior Inspector in the
Weights and Measures Department at Godhra. He admitted in
his cross-examination that he has not produced any letter
seeking permission to register the complaint. Further, he has
admitted that except registration of the complaint, no procedure
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has been carried out by him. Against such remarks, pursuant to
the judgment and order passed by the learned Magistrate dated
19.11.2008, it appears that the said judgment and order is
neither perverse nor capricious or having any illegality or error of
law and, therefore, there is no requirement to interfere with the
same. The learned Magistrate has rightly given the benefit of
doubt.
12. In view of the aforesaid discussion and observations, in the
considered opinion of this Court, the prosecution has failed to
prove its case beyond reasonable doubt. The findings recorded
by the learned Magistrate do not call for any interference.
13. The appeal is devoid of any merits and hence, the same is
dismissed. The judgment and order dated 19.11.2008 passed by
the learned Judicial Magistrate, First Class, Lunawada, in
Criminal Case No.36 of 1994 below Exh.49, recording the
acquittal stands confirmed. Bail bond, if any, stands cancelled.
R&P be sent back to the concerned court forthwith.
(A. C. JOSHI, J.)
/MOINUDDIN
