Madhya Pradesh High Court
The State Of Madhya Pradesh vs Rizwan Khan on 8 July, 2021
Author: Sheel Nagu
1 M.Cr.C.No.9166/2021
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
JUSTICE SHEEL NAGU
&
JUSTICE ANAND PATHAK
MISCELLANEOUS CRIMINAL CASE NO.9166/2021
State of Madhya Pradesh
Versus
Rizwan Khan
==================================================
Shri A.K. Nirankari, learned Public Prosecutor for the applicant/State
==================================================
ORDER
{Passed on 8th day of July, 2021}
Per Justice Anand Pathak, J.:
1. This is an application by State seeking leave to appeal under
Section 378 (3) of the Code of Criminal Procedure, 1973 against
the judgment dated 12-05-2020 passed by Fifth Additional
Sessions Judge, Guna whereby the respondent/accused -Rizwan
Khan has been acquitted by the trial Court in S.T. No.92/2017
for offence under Sections 420, 467, 468, 471,406 of IPC.
2. As per the case of prosecution, on 02-07-2015, in-charge
Branch Manager (Smt. Mamta Agrawal) of Zila Sahakari
Kendriya Bank Maryadit, Guna submitted a written complaint to
the concerned Police Station alleging therein that Prathmik
Krishi Shakh Sahakari Sanstha through Abhishek Sen submitted
a written request for release of 5 ton of DAP urea to the tune of
Rs.1,25,600/-. In furtherance of the said request, Bank prepared
a Release Order bearing No.H-87380 dated 02-07-2015 and
Demand Draft (Bankers Cheque) bearing No.008307 of
Rs.1,23,318.25 in the name of Abhishek Sen, Manager of the
Committee - Prathmik Krishi Shakh Sahakari Sanstha. On the
same day, Abhishek Sen told to the Bank that since he is going
to attend the programme in Collectorate, Guna therefore, the
requisite documents be handed over to his man Rizwan Khan
(transporter). Those documents (Release Order and Demand
Draft) were handed over to the respondent/accused Rizwan
Khan by Computer Operator of the Bank -Ompal. Thereafter
when Marketing Organization (foi.ku la?k), Guna which had
released the urea, submitted the said Demand Draft and Release
Order at the Head Office Guna for encashment. At that time, it
was found that in those documents there was some overwriting
and interpolation at the places of amount and quantity of urea as
in place of Rs.1,23,389.75, Rs.3,68,389.75, in place of 5 tons,
15 tons and in place of 100 bags, 300 bags have been
mentioned.
3. On the said complaint, FIR was registered at Crime
No.602/2015 Ex-P/20 against the respondent/accused
-transporter. Statements of concerned witnesses were taken and
after due investigation, charge-sheet was filed before the
competent Court of law and then case was committed to the
Sessions Court, Guna.
4. Before the trial Court, core points for consideration were
whether the accused cheated and dishonestly induced Store
Keeper of Kendriya Sahkari Vipran Sangh and procured 15 tons
urea in place of 5 tons and whether the accused
forged/interpolated the requisite documents prepared for
procuring the urea and committed criminal breach of trust. After
considering the relevant documents and evidence in this regard,
trial Court acquitted the respondents/accused. Therefore, this
leave to appeal has been preferred along with appeal memo so
as to challenge the order of acquittal.
5. It is the submission of learned counsel for the applicant/State
that Brij Mohan Tripathi Branch Manager, Zila Sahakari
Kendriya Bank (PW-1), Mamta Agrawal In-charge Branch
Manager (PW-2), Ompal Singh Computer Operator (PW-4),
Abhishek Sen Manager, Prathmik Sahkari Samiti, Pagara
(PW-3), Satrajeet Singh Store Keeper (PW-23), Rambabu peon
(PW-6), Phool Singh Porter (PW-8) are the material prosecution
witnesses and they supported the case of prosecution that
respondent by forging the document procured 15 tons urea in
place of 5 tons. Matter pertains to interpolation in the
documents which is categorically proved by the prosecution
through their witnesses and documentary evidence. Ompal
Singh (PW-4) categorically deposed that he handed over the
release order and DD to the respondent for release of 5 tons urea
costing Rs.1,23,389/- but those documents were interpolated
and in place of 5, 15 tons has been written and in place of
Rs.1,23,389/-, Rs.3,68,389/- has been written and procured the
urea three times higher on the basis of those forged and
interpolated documents.
6. It is further submitted that respondent was the only person in
whose possession those documents were placed and he by
forging those documents procured much more quantity of DAP
urea. Witnesses from Cooperative Bank, Cooperative Society
and Marketing Organization supported the case of prosecution
and categorically deposed that it was the respondent who forged
the documents by making interpolation and procured additional
urea from the Marketing Organization. Hence, the trial Court
committed grave error in acquitting the respondent. Other
material prosecution witnesses have also supported the story of
prosecution. Thus, applicant/State prayed that the trial Court
erred in recording acquittal in favour of respondent accused and
caused illegality.
7. Heard counsel for the applicant/State and record perused.
8. Through this application applicant/State is seeking leave to
appeal. The case in hand pertains to forgery and interpolation
in documents. Admittedly, respondent is an illiterate person and
it is alleged against him that he made some interpolations in
Release Order and Demand Draft. For the purpose of proving
those interpolations, prosecution did not examine any
handwriting expert. Interpolations made in the documents
-Release Order and Demand Draft Ex-D/1 and D/2 are very
clear despite that on the basis of those interpolated documents,
urea has been released by the Store Keeper Satrajeet Singh
(PW-23). From a prudent person specially a Government
servant, it is not expected that he shall release the goods on the
basis of such interpolated documents. From perusal of book of
delivery memos of concerned year (2013-14), it is reflected that
over the delivery memos signature of receiver of goods is not
available, only signature of the person who delivered the goods
were available. Thus, in absence of signature or thumb
impression of respondent over the delivery memo, it cannot be
said that he has procured 15 tons DAP urea in place of 5 tons.
9. Abhishek Sen (PW-3) in para 10 of his examination deposed
that they used to keep the signatured Release Order in advance,
therefore, the documentary evidence -delivery memo
No.444546 Ex-P/26 which is having signature of respondent is
of no help to the prosecution and on the basis of this evidence,
it is not proved that respondent procured 15 tons urea in place
of 5 tons particularly when there is signature of Abhishek Sen
(PW-3) over Release Order in the capacity of receiver and no
alleged additionally procured urea has been recovered from the
possession of respondent.
10. Since role of Store Keeper Satrajeet Singh (PW-23) was found
dubious by the trial Court, therefore, he was again called for
examination by the trial Court but he died and on the basis of
report submitted by Police Station Kotwali Guna he has been
declared dead vide order dated 13-03-2020. On the basis of
ocular and documentary evidence produced by the prosecution
and defence, role of Abhishek Sen (PW-3) and Satrajeet Singh
(PW-23) has been found to be doubtful by the trial Court. Thus,
the trial Court did not commit any error in reaching to the
conclusion that prosecution failed to prove its case against the
respondent accused beyond reasonable doubts.
11. It is oft repeated that graver the charge is, greater should be the
proof required, to bring home the analogy that till the charges
are proved beyond reasonable doubt on the basis of clear,
cogent, credible or unimpeachable evidence, the question of
indicting or punishing the accused does not arise. Trial Court
has rightly appreciated the necessary contours of the
controversy and thereafter passed a reasoned judgment
recording acquittal in favour of accused person.
12. It is settled principle of law that if the trial Court after due
appreciation of the evidence comes to the conclusion about the
finding of acquittal then normally if the finding is not perverse,
this should not be interfered with by the Appellate Court. For
this, reliance can be placed on the decision of the Hon'ble Apex
Court in the case of Chandrappa vs. State of Karnataka 2007
AIR SCW 1850, wherein the Hon'ble Apex Court laid down the
legal principles to entertain the appeal against acquittal and held
as under:-
"39. 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 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 question 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 emphasize 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 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".
13. In the case of Gamini Bala Koteswara Rao v. State of Andhra
Pradesh AIR 2010 SC 589, wherein it is observed as under:-
"It is open to the High Court to re-appreciate
the evidence and conclusions drawn by the trial
Court but only in a case when the judgment of the
trial court is stated to be perverse. The word
"perverse" to mean "against the weight of
evidence".
14. Trial Court has considered all the aspects in detail and after
considering all the material evidence in this regard found the
case of prosecution as doubtful. The Hon'ble Apex Court in the
case of K. Prakashan Vs. P.K.Surenderan (2008) 1 SCC 258
and T. Subramanian v. State of Tamil Nadu (2006) 1 SCC
401 held that if two views are possible and one view is taken by
the trial Court after due appreciation of evidence including the
demeanor of witnesses then unless sheer perversity or illegality
crept in to the judgment of trial Court scope of interference in
appeal is limited.
15. Considering the same, it appears that no case for interference is
made out. Therefore, leave is declined and accordingly the
application is hereby dismissed. Judgment dated 12-05-2020 of
trial Court stands affirmed.
16. Copy of this order be sent to the trial Court for information.
(Sheel Nagu) (Anand Pathak)
Judge Judge
Anil* 08/07/2021 08/07/2021
ANIL Digitally signed by ANIL KUMAR
CHAURASIYA
KUMAR
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474001,
CHAURASIY st=Madhya Pradesh,
2.5.4.20=8512f40a1a9eaa50b6802d068b5
1dae27e84c266b09d283f0799e67cdc7df5
A
0f, cn=ANIL KUMAR CHAURASIYA
Date: 2021.07.10 07:59:17 -07'00'
