State Of Himachal Pradesh vs Purshotam Lal Gupta & Ors
2022 Latest Caselaw 11369 HP

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        IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                            Criminal Appeal No. 160 of 2009
                              Decided on: 22nd December, 2022




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    _____________________________________________________





    State of Himachal Pradesh
                                                  .....Appellant
                              Versus





    Purshotam Lal Gupta & Ors
                                             .....Respondents
    ______________________________________________________
    Coram




    The Hon'ble Ms. Justice Sabina, Judge
    The Hon'ble Mr. Justice Sushil Kukreja, Judge
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        Whether approved for reporting?
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    For the Appellant:                  Mr. Ashwani Sharma,                   Additional
                                        Advocate General.

    For respondent No.1:                Mr. N.S. Chandel, Senior Advocate



                                        with Mr. Pranav Sharma, Advocate.

    For respondent No. 2, 4




    16 & 17 :                           Mr. J.S. Bhogal, Senior Advocate with
                                        Mr. Satish Sharma, Advocate.





    For respondent No.6:                Mr. Sunny Modgil, Advocate.





    For respondent No. 7 to 10 Mr. Ankit Dhiman, Advocate.

    For respondent No. 11 :             Mr. Aman Sood, Advocate.

    For respondents No. 12
    & 13:                               Mr. Hamender               Singh       Chandel,
                                        Advocate.


    1
             Whether reporters of Local Papers may be allowed to see the judgment?




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    Sabina, Judge (Oral)

Appellant-State has filed the appeal challenging the

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judgment dated 16th August, 2007 passed by the trial Court, whereby

respondents were acquitted of the charges framed against them.

2. Learned Additional Advocate General has submitted that

the trial Court has erred in ordering the acquittal of the respondents. In

fact, the respondents in connivance with each other had caused huge

loss to the State. The sintex water storage tanks had been sold to the

State at a much higher rate.

3. Mr. J.S. Bhogal, learned Senior Counsel, assisted by Mr.

Satish Sharma, Advocate has submitted that the trial court has rightly

ordered the acquittal of the accused as it was not established on record

that the water storage tanks had been sold at a higher rate. Moreover, in

arbitration proceedings, specific issue was dealt by this Court with

regard to the fact as to whether the contract had been obtained by way

of cheating, misrepresentation, fraud and undue influence. This Court

vide order dated 24th July, 1997 Ext.D-6 had held that there was no

material on record to show that initially the contract was void, being

obtained by cheating, misrepresentation or undue influence.

4. Learned counsel for respondent No.6 has submitted that the

trial Court has rightly held that the land had not been sold by accused

No.4 to father of accused No.6 at a throw away price.

5. Learned counsel for respondents No.12 and 13 has

submitted that the trial Court has rightly held that there was no material

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on record to suggest that the said respondents had manipulated the

letter dated 30th March, 1985.

6. Learned counsel for respondent No.11 has submitted that

the trial Court after appreciating the evidence on record has rightly held

that the said respondent was never aware of the tenders invited by the

Horticulture Department. There was no meeting convened between

respondent No.11 and accused Purshottam Lal Gupta or his

representatives. The prosecution has examined PW-76 Rajeev Sharma

to establish that a meeting between the said accused persons but he

could not produce any record as he had already left service of Hotel

'Asia The Dawn'.

7. Prosecution story, in brief, is that in the year 1985-86

accused P.C. Gupta was posted Senior Technical Officer in the office of

Controller of Stores, Shimla. Accused Purshotam Lal Gupta contacted

accused P.C. Gupta for supply of Sintex water storage tanks of the

capacity of 500 liters and 1000 liters. As per the prosecution story, the

said accused persons in conspiracy with each other initiated sale of

property belonging to accused Smt. Krishna Gupta, wife of accused

Purshotam Lal Gupta to accused Inder Chand Gupta, father of accused

P.C. Gupta, at a throw away price. In view of this sale deed, accused

Purshotam Lal Gupta managed to get tenders for supply of sintex water

storage tanks at a higher rate. There was no agenda for tender of water

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storage tanks, but later accused P.C. Gupta introduced the same with a

view to help his co-accused.

8. After completion of investigation and other formalities,

challan was presented against the respondents-accused persons.

9. Learned trial Court, vide judgment dated 16th August, 2007

ordered the acquittal of the respondents. Hence, the present appeal by

the State.

10. We have heard the learned counsel for the parties and have

carefully gone through the record available on the file.

11. Ext. DX is the copy of judgment dated 24th July, 1997

passed by this Court, in Civil Suit No. 80/83, titled M/s Gupta Pipes vs.

State of H.P. with OMP Nos. 342 and 343 of 2019. The plaintiff had filed

the suit for making the award passed by the Arbitrator as rule of the

Court. Objections were preferred by the State as well as the plaintiff.

Issue No.3 was framed on the basis of objections raised by the State to

the effect as to whether the initial contract was void as alleged. It was

the case of the State that the contract between the parties was void ab

initio as the same was based on cheating, misrepresentation, fraud and

undue influence. While dealing with the said issue, this Court held that

the evidence on record did not show that initially contract was obtained

by the plaintiff as a result of fraud, misrepresentation, cheating or undue

influence. None of the witnesses examined by the State had stated in

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this regard. Hence, this issue was decided against the State. As a result,

the objection-petition filed by the State was dismissed. The objection-

petition filed by the plaintiff was also dismissed and the award dated 30th

April, 1993 passed by the Arbitrator was made 'rule of the Court'. Thus,

in civil proceedings finding was given by this Court that the contract in

question was not a result of fraud or misrepresentation. Admittedly, the

judgment Ext. DX has attained finality. Hence, learned trial Court rightly

based reliance, inter-alia, on the said decision, while coming to the

conclusion that the prosecution had failed to prove its case.

12. So far as the allegation of the prosecution to the effect that

sale deed with regard to land had been executed by accused Krishna

Gupta, wife of accused Purshotam Lal Gupta in favour of accused Inder

Chand Gupta, father of accused P.C. Gupta at a throw away price is

concerned, the learned trial Court after appreciating the evidence on

record has given the finding that the said allegation was not proved on

record. It has been noticed by the trial Court that it was admitted by PW-

22 Sham Lal that average sale price was Rs.76.95 paisa and the

average sale price mentioned in Ext. PW-22/A as Rs. 237.06 paisa per

square yard, was not the average price of the land in the area for 5

years average price. He also stated that he had calculated the average

price of the land as mentioned in Ext. PW-22/A at the asking of the

police. He also stated that the plot in question was situated on a slop

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and was an uncultivated and rocky land. It has also been noticed by the

learned trial Court that as per PW-98 Gurbax Singh, accused P.C.

Gupta and I.C. Gupta were residing separately. In view of the material

on record, thus, the learned trial Court has rightly come to the

conclusion that the prosecution had failed to establish that accused

Krishna Gupta, wife of accused Purshotam Lal Gupta had sold land to

accused I.C. Gupta at a throw away price.

13. It was the case of the prosecution that for supply of sintex

water storage tanks, only two tenders were submitted i.e. one by the

company of accused Purshotam Lal Gupta and the other by M/s

National Steel Works, Dharampur, owned by the mother of accused

Purshotam Lal Gupta. It was the case of the prosecution that the matter

was taken up for consideration only with regard to rates for 45 litre

barrels and since only one party had participated for supply of 45 litre

barrels and even the said party was unable to supply 45 liter barrels.

Consequently, the said offer was not taken in consideration. Thus, as

only one party had participated to supply 45 litre barrels and even that

party also could not supply the same, then it was probable that only two

tenders were received for supply of 500 litres and 1000 litres water

storage tanks. It was the case of the prosecution that wide publicity had

been given for inviting tenders for purchase of water storage tanks of the

capacity of 500 liters and 1000 liters, but any such advertisement had

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not been proved on record. Thus, the prosecution has failed to establish

that the advertisement had been issued only vis-à-vis 45 litre barrels

only and not for water storage tanks.

14. It was also the case of prosecution that accused P.C. Gupta

had made change in the notings. However, in this regard, it was noticed

by the trial Court that as per Ext.PW-34/A and Ext. PW-34/B, note-

sheets were duly signed by R.C. Singh (Quality Control Officer),

Department of Horticulture. The said observation of the learned Trial

Court is correct as per record. Hence, from the note-sheets Ext. PW-

34/A and Ext. PW-34/B, it was duly established that the tenders for

HDPE tanks and water storage tanks have been taken in consideration.

15. It was also the prosecution story that the rates given by

accused P.C. Gupta for supply of water storage tanks were high.

However, it has been noticed by learned trial Court that the witnesses

examined by the prosecution in this regard i.e. PW-19, PW-20, PW-21,

PW-24 and PW-25, had not supported the prosecution case during trial.

So far as PW-73, Arbind Sharma is concerned, he had deposed that he

was running the business under the name and style of M/s Agro-Deal

and was the Manager of the firm. He had sent letter to Director

Horticulture in response to the tender dated 18th March, 1983 for supply

of HDPE tanks. They had not received the supply order for the sintex

water storage tanks. He proved letter Ext. PW-73/A and clarification of

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rates quoted in Ext. PW-7/D. As per Ext. PW-73/A, it was confirmed that

the rate of 500 liters water storage tank was Rs.1,500/- and rate of 1000

litres was Rs.2,500/-, exclusive of local sale tax and surcharge, which

was approximately 11% in total of the price. However, the rates

mentioned by PW-73 relate to LDPE tanks and not HDPE tanks, which

were ultimately offered by accused Purshotam Lal Gupta. So far as PW-

73 is concerned, he has not quoted the rates for HDPE material as is

evident from Ext. PW-7/D and PW-73/A. However, the prosecution had

failed to examine any official of Sintex Company to establish the rates of

the water storage tanks in question. In the above background, learned

trial Court rightly held that it could not be said that with certainty that the

rates charged by accused Purshotam Lal Gupta were on a higher side.

16. It has also been held by the learned Trial Court after

appreciating the evidence on record that there was no material available

on record to suggest that accused I.S. Azad and accused Satya Dogra

have manipulated the letter dated 30th March, 1985, as none from Amar

Nath Khandelwal agencies Private Limited had been examined during

trial.

17. It has also been noticed by the learned Trial Court that as

per evidence on record, appellant K.C. Azad was never informed about

the tenders invited by the Horticulture Department. It could not be

established during trial that any meeting had taken place between

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accused K.C. Azad and accused Purshotam Lal Gupta. So far as the

statement of PW-33 Rakesh Mahajan is concerned, he has deposed

that he was working as Accountant with 'Asia The Dawn Shimla'. As per

record, R.N. Kashyap had stayed in the hotel, but in his cross-

examination, he deposed that he was not personally known to R.N.

Kashyap. He had joined as an Accountant on 16th July, 1985. The

original of the documents which were marked by him were available in

the office of the Hotel. PW-76 Rajiv Sharma, who was Assistant

Mananger in Hotel "Asia the Dawn' in the year 1985 had not brought the

record. In this view of the matter, learned trial Court has rightly held that

any meeting suggested by the prosecution between accused K.C. Azad

and accused Purshotam Lal Gupta was not established on record.

18. Thus, in the present case, learned trial Court after

appreciating the evidence on record rightly came to the conclusion that

the prosecution had failed to prove its case against the accused persons

beyond the shadow of reasonable doubts. Learned Additional Advocate

General has failed to point out any misreading of evidence on record by

the trial Court.

19. Moreover, it is settled preposition of law that where, in an

appeal against acquittal, if two views are possible, the view taken by the

trial Court, is liable to be upheld. It has been held so by Hon'ble the

Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002(1)

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RCR (Criminal) 748.

20. Similarly, in Mrinal Das & others v. State of Tripura,

(2011) 9 Supreme Court Cases 479, the Hon'ble Supreme Court, after

looking into various judgments, has laid down parameters, in which

interference can be made in a judgment of acquittal, by observing as

under:

"13) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order,

interference by this Court exercising its extraordinary

jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the

evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to

arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The

presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be

innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal.

14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The

appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the

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State, it is the duty of the appellate court to marshal the

entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are

"compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence

or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials

placed."

21. Keeping in view the totality of circumstances discussed

above, we are of the opinion that the view taken by the learned trial

Court in the present case is a possible one.

22. Hence, no ground for interference is made out.

Accordingly, the appeal is dismissed.

Pending application(s), if any, also stand disposed of.

(Sabina) Judge

(Sushil Kukreja ) Judge December 22, 2022 (himani)