Gujarat High Court
State Of Gujarat vs Dineshbhai Harishbhai Rav on 2 July, 2025
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R/CR.A/193/2011 JUDGMENT DATED: 02/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 193 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
DINESHBHAI HARISHBHAI RAV
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Appearance:
MR PRANAV DHAGAT, APP for the Appellant No. 1
MR PRATIK B BAROT(3711) for the Opponent/Respondent No. 1
MR.MAULIN BAROT(3835) for the Opponent/Respondent No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 02/07/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State
under Section 378(1)(3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Code') against the judgment and the
order dated 11.06.2010 in Criminal Appeal No.239 of 2009 passed
by the learned Additional Sessions Judge, Court No.15,
Ahmedabad City (hereinafter referred to as 'the learned First
Appellate Court'), whereby, the learned First Appellate Court has
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quashed and set aside the judgment and order 31.08.2009 in
Criminal Case No. 796 of 2001 passed by the learned Chief
Metropolitan Magistrate, Ahmedabad, (hereinafter referred to as
'the learned Trial Court) whereby, the learned Trial Court
convicted the accused and sentenced to undergo rigorous
imprisonment of three years for the offence punishable under
Section 420 of the Indian Penal Code (hereinafter referred to as 'the
IPC'). The respondent is hereinafter referred to as 'the accused' as
he stood in the rank and file in the original case, for the sake of
convenience, clarity and brevity.
2. The relevant facts leading to filing of the present
appeal are as under:
2.1. The complainant Mahavir Mahadevbhai Balay was
residing at Ahmedabad and his friend Kamleshbhai Chhotalal was
residing in Bapunagar Housing Board. The accused and other co-
accused were known to Kamleshbhai Chhotalal and the accused
and the other co-accused came and told the complainant that there
is good scope for Indians in America and he had to pay an amount
of Rs.2,00,000/- and the remaining amount was to be paid after
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reaching America. The complainant told his other friends Anil
Ramswaroop, Praful Alakprasad and Kamleshbhai and all four of
them decided to go to America and took Rs.25,000/- each and
went to the house of Kamleshbhai where the accused and other
accused made them affix their signatures on some forms, which
had the heading of Bible Information Society Canada and America
and they were told that they would have to go to America as
Christians and they would get free food and clothes and could also
get married there. That all of them gave an amount of
Rs.5,80,000/- and the accused and co-accused told them that they
would reach America within 4-6 months but for a long time the
deal could not materialize. The complainant and others demanded
their amounts and cheques were given to them and the cheques
were deposited in the bank but they returned unpaid. As the
accused and co-accused had cheated the complainant and others, a
private complaint was filed before the Court of learned Chief
Metropolitan Magistrate and an order under section 156(3) of the
Code of Criminal Procedure was passed, pursuant to which, an
FIR came to be registered under section 406, 420, 34 of the IPC as
Bapunagar Police Station M-Case No. 2 of 2001.
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2.2. After registration of the FIR, the investigation
was carried out by the concerned Investigating Officer and after
having sufficient material against the accused and co-accused who
absconded, the charge sheet came to be filed before the Court of
the Chief Metropolitan against the accused with the names of the
co-accused in the column of absconding accused.
2.3. The accused was duly served with the summons and
the accused appeared before the learned Trial Court and it was
verified whether the copies of all the police papers were provided
to the accused as per the provisions of Section 207 of the Code. A
charge was framed by the learned Trial Court at Exh.3 and the
statement of the accused was recorded at Exh. 4, wherein, the
accused denied all the contents of the charge and the entire
evidence of the prosecution was taken on record. The prosecution
examined 6 witnesses and produced 4 documentary evidences in
support of the case.
2.4. After the closing pursis was submitted by the learned
APP, the further statement of the accused under Section 313 of the
Code was recorded wherein the accused denied the evidence on
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record. After hearing the arguments of the learned APP and
learned advocate for the accused and after perusing the
documents on record, the learned Trial Court, by the impugned
judgment and order dated 31.08.2009, was pleased to convict the
accused and sentenced him to simple imprisonment for three years
and for the offence punishable under Section 420 of the IPC.
2.5. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the learned Trial Court, the accused
preferred Criminal Appeal No.239 of 2009 before the City Sessions
Court, Ahmedabad, whereby, the appeal preferred by the accused
came to be allowed and the learned Additional Sessions Judge,
Court No. 15 quashed and set aside the judgment and order dated
31.08.2009 passed by the learned Chief Metropolitan Magistrate in
Criminal Case No. 796 of 2001.
3. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the learned First Appellate Court,
the appellant - State has filed the present appeal mainly stating
that the impugned judgment and order passed by the First
Appellate Court is ex-facie, illegal, arbitrary and without properly
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appreciating the facts of the case and the materials available on
record. The First Appellate Court has erred in appreciating the
fact that when the accused persons are found to have been guilty
and to have the deterrent effect on the society as well as to curb
such offence of cheating in the name of sending persons to foreign
country ought not to have been acquitted. The First Appellate
Court has erred in considering the fact that the accused had, in
collusion with a common intention, committed the offence as
alleged against him and thereby caused financial loss to the
complainant and other persons. The First Appellate Court has
erred in considering the fact that the accused had committed
breach of trust, created forged and bogus documents and obtained
signatures of complainant and others and has erred in
appreciating the oral as well as documentary evidences produced
by the prosecution in its true spirit and straightway arrived at the
conclusion that the prosecution has failed to prove the case beyond
reasonable doubts. The First Appellate Court ought to have
appreciated the fact that the witnesses are examined and the
witnesses and the documentary evidences produced on record of
the case go against the accused and therefore, the order of acquittal
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passed by the learned First Appellate Court requires to be quashed
and set aside.
4. Heard learned APP Mr.Pranav Dhagat for the
appellant - State and learned advocate Mr.Pratik Barot for the
respondent - accused. Perused the impugned judgment and order
of acquittal passed by the First Appellate Court as well as
judgment and order of conviction passed by the learned Trial
Court and have re-appreciated the entire evidence of the
prosecution on record of the case.
4.1. Learned APP Mr.Pranav Dhagat for the appellant -
State has taken this Court through the entire evidence produced
by the prosecution and has vehemently argued that the First
Appellate Court has not appreciated the evidence properly and the
prosecution has produced cogent evidence to prove the the case
and has successfully proved the case against the accused but the
First Appellate Court has not considered the same and has
acquitted the accused. The judgment and order of acquittal passed
by the learned Judge is contrary to law, evidence on record and
principles of justice. The judgment and order of acquittal passed
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by learned Judge is based on inferences, not warranted by facts of
the case and also on presumption, not permitted by law. Learned
APP has urged this Court to quash and set aside the impugned
judgment and order of acquittal and to find the accused guilty for
the said offence. Learned APP has urged this Court to allow the
present appeal and impose maximum sentence on the accused.
4.2. Learned advocate Mr.Pratik Barot for the respondent -
original accused has submitted that the learned First Appellate
Court has appreciated all the evidence in true perspective and has
not committed any error in acquitting the accused. Therefore, no
interference of this Court is required in the impugned judgment
and the order of acquittal passed by the learned First Appellate
Court and has urged this Court to reject the appeal.
5. At the outset, before discussing the facts of the present
case, it would be appropriate to refer to the observations of the
Apex Court in the case of Chandrappa & Ors. Vs. State of
Karnataka reported in 2007 (4) SCC 415, the Apex Court has
observed as under:
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Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313 :
AIR 2006 SC 831, this Court stated; "While deciding an appeal against
acquittal, the power of the Appellate Court is no less than the power
exercised while hearing appeals against conviction. In both types of
appeals, the power exists to review the entire evidence. However, one
significant difference is that an order of acquittal will not be interfered
with, by an appellate court, where the judgment of the First Appellate
Court is based on evidence and the view taken is reasonable and
plausible. It will not reverse the decision of the First Appellate Court
merely because a different view is possible. The appellate court will
also bear in mind that there is a presumption of innocence in favour of
the accused and the accused is entitled to get the benefit of any doubt.
Further if it decides to interfere, it should assign reasons for differing
with the decision of the First Appellate Court". (emphasis supplied)
........ From the above decisions, in our considered view, the following
general principles regarding powers of appellate Court while dealing
with an appeal against an order of acquittal emerge;]
(1) An appellate Court has full power to review, reappreciate
and reconsider the evidence upon which the order of ac-
quittal 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 cir-
cumstances', 'distorted conclusions', 'glaring mistakes',
etc. are not intended to curtail extensive powers of an ap-
pellate Court in an appeal against acquittal. Such phrase-
ologies are more in the nature of 'flourishes of language'
to emphasize the reluctance of an appellate Court to in-
terfere with acquittal than to curtail the power of the
Court to review the evidence and to come to its own con-
clusion.
(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 avail-
able to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be
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innocent unless he is proved guilty by a competent court
of law. Secondly, the accused having secured his acquit-
tal, the presumption of his innocence is further rein-
forced, reaffirmed and strengthened by the First Appel-
late 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 First Ap-
pellate Court.
6. It is a settled principle of law that in an appeal against
acquittal, the Appellate Court is circumscribed by limitation that
no interference has to be made in the order of acquittal unless after
appreciation of the evidence produced before the learned Trial
Court, it appears that there are some manifest illegality of
perversity which could not have been possibly arrived at by the
Court. It is also a settled principle that there is no embargo on the
Appellate Court to review the evidence but, generally the order of
acquittal shall not be interfered with as the presumption of
innocence of the accused is further strengthened by the order of
acquittal. The golden thread which runs through the web of
administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case of the prosecution i.e.
(i) guilt of the accused and (ii) his innocence, the view, which is in
favour of the accused, should be adopted, and if the First
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Appellate Court has taken the view in favour of the accused, the
Appellate Court should not disturb the findings of the acquittal.
The Appellate Court can interfere with the judgment and order of
acquittal only when there are compelling and substantial reasons
and the order is clearly unreasonable and where the Appellate
Court comes to conclusion that based on the evidence, the
conviction is a must.
7. In light of the above, the evidence produced by the
prosecution on record is appreciated and the prosecution has
examined PW-1 Mahavir Mahadevbhai at Exh.5 and the witness
is the complainant, who has narrated all the facts of the complaint
on oath. During the cross-examination by the learned advocate for
the accused the witness has stated that Manubhai Somabhai
Parekh is residing in 'Prashant Colony' and the accused is residing
near him. Whatever dealings had taken place, had taken place
with David, who was from Ahmedabad, and the cheque, which is
produced at Exh.7, bore the signature of Manubhai Somabhai
Parekh, and the other cheques are produced at Exh.8 and Exh.9.
7.1. The prosecution has examined PW-2 Anilkumar
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Ramswaroop Tiwar at Exh.10 and the witness has stated that he is
known to the accused, and at that time, the accused was residing
at Nadiad. The witness wanted to go to America and he had told
the accused and an amount of Rs.4,00,000/- was demanded and
the amount of Rs.1,75,000/-was given at the house of Chhotalal
Barot and the other amount of Rs.1,55,000/- was given at 'Sriram
Handloom House'. They were supposed to go to America in
January, 2001, but the trip did not materialise, and hence, the
amount was demanded back, but it was not repaid by the accused.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the complaint was filed
against Dineshbhai Rav, Manubhai Somabhai Parekh and David
Peter, but he has not met Davidbhai till today. The amount was
given by him and he knows Kamleshbhai and the cheque was
given by Dineshbhai, but he does not know whose signature is
affixed in the cheque, which is produced at Exh.11. The accused is
is a neighbour of of Manubhai.
7.2. The prosecution has examined PW-3 Prafulkumar
Alakhprasad Sharma at Exh.12 and the witness has stated that he
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had given the accused an amount of Rs.1,00,000/- to go to America
in the presence of Chhotalal. That as the transaction to go to
America did not take place, he had demanded for the amount and
a bogus cheque was given to him by the accused, but he does not
know whose signature is affixed on the cheque. During the cross-
examination by the learned advocate for the accused, the witness
has stated that the complaint is filed against three persons.
7.3. PW-4 Kamleshbhai Chhotalal Barot has been examined
at Exh.13 and the witness has stated that the accused is his wife's
uncle and was an agent to send people to America. The accused
had told him that he would take him to America and get him a job
and he and his friends Prafulkumar, Mahavir and Anilbhai Tiwari
had given an amount of Rs.5,80,000/-, out of which, Rs.1,25,000/-
was given in cash. The accused had told them that he would take
them within six months to America, but he did not send them to
America and they demanded for the amount of Rs.1,25,000/- and
the cheques were given, which returned unpaid. The cheques are
produced at Exhs.14, 15 and 16. During the cross-examination by
the learned advocate for the accused, the witness has stated that
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the cheques were given by Dineshbhai, but he does not know
whose signature is affixed on them. At the time of the incident, he
was married to the niece of the accused.
7.4. PW-5 Jignaben Vishnukumar Barot examined at Exh.17
is the niece of the accused, who has stated that her brother-in-law
Kamleshbhai wanted to go abroad and the accused and one
Manubhai had taken money from him. They had demanded for
Rs.4,00,000/- to 5,00,000/- and an amount of Rs.2,00,000/- was
given to Manubhai, and at that time, the accused was with
Manubhai. That even though, the amount was paid, they did not
send her brother-in-law Kamleshbhai to America and Dineshbhai
and the accused had agreed to return the amount, but he did not
return the amount till today. During the cross-examination by the
learned advocate for the accused, the witness has stated that all the
money was collected and given to Manubhai and the cheques were
given by Manubhai Parekh, which were from his account.
7.5. PW-6 Virjibhai Jivabhai Katara has been examined at
Exh.18 and the witness is the Investigating Officer, who has
narrated in detail the procedure undertaken by him during
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investigation. The witness has stated that he had arrested the
accused and filed the charge sheet. During the cross-examination
by the learned advocate for the accused, the witness has stated that
the present accused Dineshbhai did not give any cheques and
during investigation, it was found that the complainant and the
witnesses did not give any money to the accused.
8. On minute appreciation of the entire evidence of the
prosecution, it is the case of the prosecution that the accused along
with the other co-accused had taken an amount of Rs.5,80,000/-
from them to send them to America and had taken their signatures
in some blank forms. The other accused are absconding and as per
the evidence, the amount was not given to the present accused, but
was given by the complainant and the witnesses to the co-accused,
who are absconding. There is no evidence on record that the
accused had agreed to send the complainant and witnesses to
America and had taken any amount from the complainant or the
witnesses and there is no evidence that the accused had agreed to
return the amount and had given the cheques. The only evidence
that has emerged on record is that the accused was a neighbor of
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the absconding accused and was with him at the time when the
amount was paid by the complainant and the witnesses to the
absconding accused.
9. In view of the above, the learned First Appellate Court
has appreciated the entire evidence in proper perspective and
there does not appear to be any infirmity and illegality in the
impugned judgment and order of acquittal. The learned First
Appellate Court has appreciated all the evidence and this Court is
of the considered opinion that the learned First Appellate Court
was completely justified in acquitting the accused of the charges
leveled against them. The findings recorded by the learned First
Appellate Court are absolutely just and proper and no illegality or
infirmity has been committed by the learned First Appellate Court
and this Court is in complete agreement with the findings,
ultimate conclusion and the resultant order of acquittal recorded
by the learned First Appellate Court. This Court finds no reason to
interfere with the impugned judgment and order passed by the
learned First Appellate Court and the present appeal is devoid of
merits and resultantly, the same is dismissed.
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10. The impugned judgment and the order dated
11.06.2010 in Criminal Appeal No.239 of 2009 passed by the
learned Additional Sessions Judge, Court No.15, Ahmedabad City
is hereby confirmed.
11. Bail bond stands cancelled. Record and proceedings be
sent back to the learned First Appellate Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S. KAZI
