Gujarat High Court
State Of Gujarat vs Allabax Rahimbax Shaikh on 6 June, 2025
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R/CR.A/181/1999 JUDGMENT DATED: 06/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 181 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
ALLABAX RAHIMBAX SHAIKH & ANR.
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Appearance:
MR HARDIK SONI APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
MR BOMI H SETHNA(5864) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 06/06/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA)
[1] The present Appeal under Section 378 of the Code of
Criminal Procedure, 1973 is directed against judgment and order
dated 15th January 1999 passed by learned Additional Sessions
Judge, Rajkot in Sessions Case No.99 of 1998, by which, the
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learned Additional Sessions Judge was pleased to acquit the
accused for the offences under Sections 420, 465, 255, 467, 468,
477(A), 472, 484, 488 read with Section 114 of the Indian Penal
Code.
[2] The facts of the case can be stated as under:
[2.1] That the complainant - Kiritkumar Motilal Christi,
Deputy Superintendent of Post, Rajkot Division, Rajkot lodged a
written complaint dated 17th September 1995 with the Morbi Police
Station against the accused persons for making fake and fabricated
four Money Orders amounting to Rs.2,000/- each vide (i) Money
Order No.413 dated 23rd August 1995 for Rs.2,000/- recipient of
Dariyalal Electronics, Morbi paid on 5th September 1995; (ii)
Money Order No.414 dated 23rd August 1995 for Rs.2,000/-
recipient of Dariyalal Electronics, Morbi paid on 5th September
1995; (iii) Money Order No.415 dated 23 rd August 1995 for
Rs.2,000/- recipient of Dariyalal Electronics, Morbi paid on 8 th
September 1995 and (iv) Money Order No.416 dated 23 rd August
1995 for Rs.2,000/- recipient of Dariyalal Electronics, Morbi paid
on 8th September 1995. The said written complaint can be thus
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translated as under:
I, Mr. Kiritkumar Motilal Christy, Age:54 years,
occupation: service, residence: Postal Colony, Gondal Road,
Rajkot, hereby give my written complaint today at Morbi.
On 13/09/1995, it was informed by the Post Master
General, Rajkot Division vide his letter No.GNV
7/1/RVR/95/96, dated 13/09/1995 that bogus payment was
made in total 13 M.O. at Rajkot and Morbi. The person
sending the M.O. namely Mr. B.B.Sheth has given the address
of Mount Abu. In pursuance of the order, I had conducted
preliminary investigation of total 4 M.O. of Morbi on
14/09/1995. In this regard, I had conducted the preliminary
inquiry on 14/09/1995. It was found that the recipient of the
M.O. had received the sum of Rs.8,000/- (Eight Thousand
only) through 4 Money orders. The details of the Money
orders are mentioned below.
Sr. M.O. Date Amount Person receiving the Date of
No. No. M.O. payment
1 413 23/08/1995 2000 Dariyalal Electric 05/09/199
Company, Mahajan 5
Chowk, Morbi
2 414 23/08/1995 2000 As above 05/09/199
3 415 23/08/1995 2000 As above 08/09/199
4 416 23/08/1995 2000 As above 08/09/199
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Upon inquiring about the above mentioned amount of
Rs.8000/- paid from Morbi Post Office vide M.O. No.413,
414, 415, 416, it was found that no such Money orders were
dispatched from Teharka (M.P.) post office and no entry was
made in the Register in that regard. Mr. B.B.Sheth used the
oblong stamp, fabricated writing and signatures of the Post
master and clerk and amount of Rs. Two Thousand was
mentioned in each of the Money order form from any post
office or R.M.S. office. Without paying the aforesaid amount
at Teharka Post Office, affixed fabricated stamps in the name
of the party as mentioned above in the Money order form
and dispatched the same by any means and thereby the
aforementioned party was paid the sum of Rs.8,000/- by
Morbi Post Office as mentioned in the Money order.
The M.O. oblong stamp (seal) which is to be affixed by
the dispatching office, was fabricated and it was affixed on
the aforementioned four Money order forms. In the aforesaid
rubber seal (oblong), name of Teharka post office is
mentioned as dispatching office and name of the District is
mentioned as Tikamgadh and issue date is mentioned as
23/08/1995. Name of the audit is mentioned as B.H.Bhopal
(B.H.) and name of the month is mentioned as :A.U.G.:
August. The aforesaid seal was fabricated and Money order
form was annexed. Thus, fabricated document was prepared
and the same was dispatched by any means for the payment
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of Money order. No person was found at Mount Abu by the
name of B.B.Sheth.
Thereafter, upon inquiring with the party mentioned in
the Money order form namely Shri Sunil Dariyalal
Electronics, Mahajan Chowk, Morbi, he stated that he had
received the sum of Rs.8000/- (Eight Thousand only) in total
4 Money orders through postman. The sum of Rs.4000/- was
received on 05/09 and then another sum of Rs.4000/- was
received on 08/09/1995. Further, aforesaid amount was sent
for Videocon VCR system and he will collect the said item in
few days. Upon being asked the description of the aforesaid
person, he stated that the said person was about six feet tall,
has henna applied on his hands, wore prescription glasses
and round Muslim cap on his head. He stated that he can
identify the person upon seeing him. The above described
persons namely, B.B.Sheth committed cheating with the Post
Office by making payment with bogus Money order. It was
informed at this office that the aforesaid person was about to
come at Dariyalal Electric. Since I was occupied with the
inquiry of any other bogus Money order, the complaint was
not given immediately on 14/09.
Similarly, bogus Money orders were dispatched to
Rajkot by Mr. B.B.Sheth. He was about to come at Span
Power Company, Raj chamber, near Manivava Petrol Pump.
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Therefore, I intimated the Commissioner for conducting the
investigation. Accordingly, the said person was detained by
Rajkot police on 16/09/1995.
Accordingly, Mr. B.B.Sheth, without depositing the sum
of Rs.8000/- (Eight Thousand only) at Post Office, used
fabricated Money order form through any person at post
office or R.M.S. and dispatched the same for payment. All of
those Money orders were paid to the aforesaid party by
Morbi post office. Thus, Mr. B.B.Sheth used fabricated stamp
and committed cheating of Rs.8000/-. Therefore, I hereby
lodge the complaint against him. My witnesses are the
concerned officer of Tahelka Post Office (Trikamgadh H.O.),
the aforesaid party Dariyalal Electronics and the postman
namely, Mr. Mansukhlal Hiradas Vaishnav who went to make
the payment and whoever is found during the investigation.
I submit the xerox copies of the aforementioned four
Money order forms herewith.
The aforesaid complaint is true and correct as dictated
by me.
Morbi Your Faithfully,
17/09/1995 Sd/- (illegible)
D.S.P.OS Rajkot
Typed by Compared by
Sd/- (illegible) Sd/- (illegible)
G.N.Trivedi Junior Clerk
Junior Clerk
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[2.2] The aforesaid Money Orders alleged to have been
issued from the post office of Teharka (Madhya Pradesh)
fabricating the said Money Orders as well as forging the signatures
of Postmaster and Clerk, all the four Money Orders in the total sum
of Rs.8,000/- sought to be paid from the Morbi Post Office in
favour of Dariyalal Electronics. Accordingly, the offence punishable
under Sections 420, 465, 255, 467, 468, 477(A), 472, 484, 488
read with Section 114 of the Indian Penal Code was registered by
the Morbi Police Station and thereafter, the Morbi Police Station,
after proper investigation, filed chargesheet against the present
accused and accordingly, the case was committed to the Court of
Sessions being Sessions Case No.99 of 1998 at Rajkot.
[2.3] On committal of the case, the learned Additional
Sessions Judge, Rajkot, vide its order 21 st July 1998, below
Exhibit : 7 framing charge against the accused. The charge was
read over and explained to the accused. The statement of
respondent - accused was recorded, wherein the respondent -
accused pleaded not guilty to the charge and claimed to be tried.
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[2.4] In order to bring home the charge leveled against the
accused, the prosecution has examined as many as following 22
witnesses:
PW Name of Witness Exh.
No. No.
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[2.5] The prosecution has also produced the following
documentary evidence:
Sr. Particulars Exh.
No. No.
Money Order Coupon
Morbi P.S.I. (with four pages dated
10.10.1995)
15 Different types of Forms of Money Order 72 to 94
18 Different types of Eight Photographs 97 to 107
19 Panchnama regarding Shop shown by 111
accused Allabax
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21 Letter No.363 dated 25.10.1995 written by 30
Sub Postmaster, Teharka
22 Panchnama of seizure of stamp and seal from 53
the accused
P.S.I. Nandasaniya.
City Police Station
[2.6] After recording the evidence of the prosecution,
the Learned Additional Sessions Judge, Rajkot explained the same
to the respondent - accused and recorded his plea. In the plea,
accused denied the case of the prosecution in entirety. According to
the accused, he has been roped in a false case for the offences
stated hereinabove. However, accused has neither led any evidence
nor did he examine any witness in support of his defence.
[2.7] At the end of trial, the learned Additional
Sessions Judge, Rajkot was pleased to acquit the respondent -
accused for the offence under Sections 420, 465, 255, 467, 468,
477(A), 472, 484, 488 read with Section 114 of the Indian Penal
Code holding, inter alia, that the prosecution has failed to prove the
charge beyond reasonable doubt.
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[3] Being aggrieved and dissatisfied by the order of
acquittal dated 15th January 1999 passed by learned Additional
Sessions Judge, the State has approached this Court by way of
present Appeal under Section 378 of the Code, 1973.
[4] We have heard learned Additional Public Prosecutor
Mr. Hardik Soni for the appellant - State of Gujarat.
[4.1] It was contended by learned Additional Public
Prosecutor for the appellant that the judgment and order of
acquittal is against the provisions of law. It was contended that the
trial court has not properly appreciated the evidence produced on
record in its true perspective and that has resulted into serious
miscarriage of justice. It was further contended that the ingredients
of all the offences under Sections 420, 465, 255, 467, 468, 477(A),
472, 484, 488 read with Section 114 of the Indian Penal Code were
proved, however, the learned trial court had miserably failed in
construing the same that too by ignoring overwhelming evidence
against the accused and that has resulted into perversity. Learned
Additional Public Prosecutor has also taken this Court through
entire oral as well as documentary evidence and submitted that the
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charges against the accused person stands proved and thereby, the
impugned order of acquittal be quashed and set aside by recording
conviction against the accused person in the interest of justice.
[5] Having heard learned Additional Public Prosecutor for
the appellant - State and having perused the material on record,
the short question that falls for consideration of this Court is
whether the judgment and order passed by the learned Additional
Sessions Judge recording acquittal of the accused from the offences
under Sections 420, 465, 255, 467, 468, 477(A), 472, 484, 488
read with Section 114 of the Indian Penal Code is justified?
[6] Before deciding the aforesaid question, at the outset, it
is required to be noted that the present Appeal is against the order
of acquittal. Thus, in my view, the law laid down by the Hon'ble
Apex Court with regard to the principles governing acquittal
appeals deserves to be taken note of.
[6.1] The Apex Court has very succinctly explained in catena
of decisions the principles which are required to be kept in mind
while deciding the acquittal appeals. In the case of M.S. Narayan
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Menon @ Mani v. State of Kerala [(2006) 6 SCC 39], the Apex
Court has discussed the powers of the High Court in appeal against
the order of acquittal. Relevant observations in para-54 of the
decision is reproduced hereinbelow.
"54. In any event the High Court entertained an appeal
treating to be an appeal against acquittal, it was in fact
exercising the revisional jurisdiction. Even while
exercising an appellate power against a judgment of
acquittal, the High Court should have borne in mind
the well settled principles of law that where two view
are possible, the appellate Court should not interfere
with the finding of acquittal recorded by the Court
below."
[6.2] Further, in the case of Chandrappa v. State of
Karnataka [(2007) 4 SCC 415], the Apex Court laid down the
following principles.
"42. From the above decisions, in our considered view,
the following general principles regarding powers of
the 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 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
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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 curtain
extensive powers of an appellate Court in an appeal
against acquittal. Such phraseologies are more in the
nature of "flourishes of language" to emphasis the
reluctance of an appellate Court to interfere with
acquittal than to curtail the power of the Court to
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."
[6.3] In case of State of Goa v. Sanjay Thakran [(2007) 3
SCC 75], the Apex Court has reiterated the powers of the High
Court in such cases. In para-16 of the said decision, the Apex Court
has observed as under.
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"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 reappreciate
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."
[6.4] Yet in another decision, the law has been reiterated by
the Apex Court in case of State of U.P. v. Ram Veer Singh [2007
AIR SCW 5553] and in Girja Prasad (Dead) by L.R.s v. State of M.P.
[2007 AIR SCW 5589].
[6.5] Thus, it is a settled principle that while exercising
appellate powers, even if two reasonable views/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
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Court.
[6.6] In case of Luna Ram v. Bhupat Singh [(2009) SCC
749], the Apex Court in paras-10 and 11 has held as under.
"10. The High Court has noted that the prosecution
version was not clearly believable. Some of the so
called eye witnesses stated that the deceased died
because his ankle was twisted by an accused. Others
said that he was strangulated. It was the case of the
prosecution that the injured witnesses were thrown out
of the bus. The doctor who conducted the postmortem
and examined the witnesses had categorically stated
that it was not possible that somebody would throw a
person out of the bus when it was in running condition.
11. Considering the parameters of appeal against the
judgment of acquittal, we are not inclined to interfere
in this appeal. The view of the High Court cannot be
termed to be perverse and is a possible view on the
evidence."
[6.7] Yet in an another decision of the Apex Court in the case
of Mookkiah v. State. Rep. by The Inspector of Police, Tamil Nadu
[AIR 2013 SC 321], the Apex Court in para-4 has held as under:
"4. It is not in dispute that the trial Court, on
appreciation of oral and documentary evidence led in
by the prosecution and defence, acquitted the accused
in respect of the charges leveled against them. On
appeal by the State, the High Court, by impugned
order, reversed the said decision and convicted the
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accused under Section 302 read with Section 34 of IPC
and awarded RI for life. Since counsel for the
appellants very much emphasized that the High Court
has exceeded its jurisdiction in upsetting the order of
acquittal into conviction, let us analyze the scope and
power of the High Court in an appeal filed against the
order of acquittal. This Court in a series of decisions
has repeatedly laid down that as the first appellate
court the High Court, even while dealing with an
appeal against acquittal, was also entitled, and obliged
as well, to scan through and if need be reappreciate the
entire evidence, though while choosing to interfere
only the court should find an absolute assurance of the
guilt on the basis of the evidence on record and not
merely because the High Court could take one more
possible or a different view only. Except the above,
where the matter of the extent and depth of
consideration of the appeal is concerned, no
distinctions or differences in approach are envisaged in
dealing with an appeal as such merely because one was
against conviction or the other against an acquittal.
[Vide State of Rajasthan vs. Sohan Lal and Others,
(2004) 5 SCC 573]"
[6.8] It is also a settled legal position that in acquittal
appeals, the appellate Court is not required to rewrite 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 v. Hemareddy
[AIR 1981 SC 1417], wherein it is held as under:
"... This Court has observed in Girija Nandini Devi V.
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Bigendra Nandini Choudhary (1967) 1 SCR 93: (AIR
1967 SC 1124) that it is not the duty of the Appellate
Court on the evidence to repeat the narration of the
evidence or to reiterate the reasons given by the trial
Court expression of general agreement with the
reasons given by the Court the decision of which is
under appeal, will ordinarily suffice."
[6.9] 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.
[6.10] The Apex Court in Shivasharanappa v. State of
Karnataka [JT 2013 (7) SC 66] has held as under.
"That appellate Court is empowered to reappreciate the
entire evidence, though, certain other principles are
also to be adhered to and it has to be kept in mind that
acquittal results into double presumption of
innocence."
[6.11] In a very recent decision in case of Babu Sahebagouda
Rudragoudar v. State of Karnataka [2024 SCC OnLine SC 561], the
Apex Court has reiterated the principles governing the appeal
against acquittal recorded by the trial court, which can be quoted
as under:
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"(a) That the judgment of acquittal suffers from patent
perversity;
(b) That the same is based on a misreading/omission
to consider material evidence on record;
(c) That no two reasonable views are possible and only
the view consistent with the guilt of the accused is
possible from the evidence available on record."
[7] Keeping in mind the aforesaid proposition of law, now
we would like to proceed and evaluate relevant and important
evidence, the evidence of PW 1 - Kiritbhai Motilal Christi,
complainant at Exhibit : 11, PW 7 - Sunil Hiralal, owner of
Dariyalal Electronics at Exhibit : 39, PW 2 - Laxmanbhai Kalabhai
Chavda, Public Relation Inspector at Exhibit : 23 and PW 3 -
Pushpaben Mukundray Joshi, Money Order Clerk at Morbi Post
Office at Exhibit : 32. On overall scrutiny and evaluation of the
aforesaid evidence, it appears that before lodgment of the written
complaint with regard to bogus Money Orders, the same is alleged
to have been issued by the Madhya Pradesh Post Office but the
complainant has not personally verified with the Office of the
Madhya Pradesh Post Office. Only on the basis of the letter issued
by the Teharka Post Office at Madhya Pradesh at Exhibit : 30, the
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complainant appears to have filed the aforesaid complaint. During
the course of trial, the very letter at Exhibit : 30, by which, the
Teharka Post Office (Madhya Pradesh) has stated that those Money
Orders are not issued by them, no witnesses were examined by the
prosecution from the Office of the Teharka Post Office (Madhya
Pradesh). More over, no record of the Teharka Post Office such as
register with regard to Money Order, Commission Receipt Book
were examined and produced before the Court. It is important to
note that as stated hereinabove, the Postmaster and Assistant Clerk
of the Teharka Post Office (Madhya Pradesh) whose signatures
alleged to have been forged, are not examined. In our view, in a
case of forgery of signature, a person whose signature alleged to
have been forged, is a crucial witness. A person whose signature
alleged to have been forged ought to have been examined so as to
corroborate the case of the prosecution. Admittedly, neither the
Postmaster nor the Assistant Clerk of the Teharka Post Office
(Madhya Pradesh) have been examined. Thus, this Court has
reasoned to believe that the source from where the forgery and / or
fabrication as alleged has not been properly investigated and thus,
the allegation of forgery from its inception cannot be said to have
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been proved beyond reasonable doubt.
[7.1] On perusal of the evidence of the Prosecution Witnesses
17 and 18 working in the Rajkot RMS Department, it is clearly
stated that Money Orders were received from the Ahmedabad RMS
Office and prepared at Teharka Post Office (Madhya Pradesh). On
further consideration of the evidence of PW 14, who happens to be
the Postmaster working in the Morbi Post Office, stated that the
aforesaid Money Orders have been received from the Rajkot Post
Office and was to be paid to Sunilbhai Hiralal Tarasthani at Morbi.
According to the said witness PW 14, the said Money Orders have
been listed in the Rajkot RMS Post Office on a high value list. On
overall consideration of the evidence of the aforesaid evidence, it
appears to this Court that all the aforesaid Money Orders have been
prepared at Madhya Pradesh sent to Ahmedabad by the Railways,
then the Ahmedabad RMS Office has sent to the Rajkot RMS and
from the Rajkot RMS Office, all the aforesaid Money Orders were
received by the Morbi Post Office for final payment to Sunilbhai
Hiralal Tarasthani, owner of the Dariyalal Electronics, Morbi - PW
7. If we consider the evidence in its entirety, it is not clearly coming
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out that it is the accused who has forged and fabricated the Money
Orders. The prosecution appears to have failed to connect the
accused with the alleged offence by way of any cogent evidence. In
our view, the prosecution has miserably failed in proving the case
against the accused beyond reasonable doubt. At this stage, it is
also required to be noted that qua the respondent No.1 herein -
accused, present appeal is already ordered to be abated by the
Coordinate Bench of this court vide order dated 14th March 2017,
who alleged to be the main accused.
[7.2] Keeping in mind the aforesaid aspect and upon careful
consideration of the entire evidence on record, the role of the
respondent No.2 herein - accused is also not established beyond
reasonable doubt. The allegations against the respondent No.2
herein - accused with regard to the offence punishable under
Section 114 of the Indian Penal Code, no cogent and / or
convincing evidence produced by the prosecution so as to connect
the respondent No.2 - accused with the crime.
[8] In view of the aforesaid, we are of the considered
opinion, that the findings of fact recorded by the learned Trial
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Court cannot be faltered. We did not find any infirmity in the order
passed by the learned Additional Sessions Judge so as to interfere
in this case. The judgment and order of acquittal, acquitting the
present respondent - original accused by the learned Additional
Sessions Judge, Rajkot is just and proper. The evidence on record
will not permit this Court to take a different view than that of taken
by the learned Additional Sessions Judge. Even looking to the
present Appeal, nothing is produced or pointed out to rebut the
conclusion of the Trial Court. Even looking to the evidence on
record, the learned Additional Public Prosecutor could not persuade
this Court to take a different view than that of taken by the learned
Additional Sessions Judge.
[9] In above view of the matter, we are of the considered
opinion that the learned Trial Court was completely justified in
acquitting the respondent herein - original accused. We find that
the findings recorded by the learned Trial Court are absolutely just
and proper and in recording the said findings, no illegality or
infirmity has been committed by it. We are, therefore, in complete
agreement with the findings, ultimate conclusion and the resultant
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order of acquittal recorded by the Court below, and hence, find no
reasons to interfere with the same.
We answer the question accordingly.
[10] In the result, the present Appeal is hereby dismissed.
[11] The impugned judgment and order of acquittal dated
15th January 1999 passed by learned Additional Sessions Judge,
Rajkot in Sessions Case No.99 of 1998 is hereby confirmed.
[12] Record and Proceedings to be sent back to the Trial
Court concerned.
(NIRAL R. MEHTA,J)
(P. M. RAVAL, J)
CHANDRESH
