The State Of M.P. vs Durga Prasad And Anr.
2022 Latest Caselaw 14538 MP

                                                            1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT JABALPUR
                                                          BEFORE
                                        HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                                                 ON THE 10th OF NOVEMBER, 2022

                                            CRIMINAL APPEAL No. 1237 of 2001

                                   BETWEEN:-
                                   THE STATE OF M.P. THROUGH
                                   POLICE STATION, BEGAMGANJ, RAISEN
                                   (M.P.)

                                                                                        .....APPELLANT
                                   (BY SHRI SANTOSH KUMAR YADAV, LEARNED DEPUTY GOVT.
                                   ADVOCATE )

                                   AND
                                   1. DURGA PRASAD (DEAD)
                                   2. SUDHIR
                                   S/O GULAB SINGH YADAV, AGED 38 YEARS, R/O
                                   HADAIPURA    POLICE     STATION,   TEHSIL
                                   BEGAMGANJ,
                                   DISTRICT RAISEN (M.P.)

                                                                                     .....RESPONDENTS
                                   (BY SHRI PAWAN GURJAR, ADVOCATE FOR RESPONDENT NO.2.
                                   RESPONDENT NO.1 DEAD)

                                 This appeal coming on for final hearing this day, the court delivered
                           the following:
                                                           JUDGMENT

This appeal under Section 378(1) of Cr.P.C. has been filed against the judgment and order of acquittal dated 16.12.1994 whereby respondent No.2 along with deceased respondent No.1 has been acquitted of the offence under Section 406, 408 and 420 of IPC by JMFC Begamganj, District Raisen.

2. Challenging the impugned judgment, learned counsel for the appellant/ State has contended that learned trial Court has not properly considered the evidence of Chhotelal Pancholi (PW-3) and has committed manifest error in Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 11/11/2022 11:19:55 AM

acquitting the respondents for commission of offence under Section 406, 408 and 420 of IPC. Therefore, it has been prayed that impugned judgment of acquittal be set aside and respondent No.2 be convicted and sentenced for commission of offence under Sections 406, 408 and 420 of IPC.

3. On the other hand, learned counsel for the respondent No.1 has submitted that learned trial Court has properly appreciated the evidence of prosecution witnesses particularly auditor Chhotelal Pancholi (PW-3) who in his cross-examination has candidly admitted that an amount of Rs.4200/- was returned to Ramdayal but voucher of the same was not found available, due to which, he had given report about the embezzlement of that money. It is further

submitted that in the course of trial respondents had adduced Exhibit D/4 receipt showing that amount was duly returned to Ramdayal by respondent No.2 Sudhir Mohan on 22.05.1977, therefore, no offence under Section 406, 408 and 420 of IPC is made out.

4. I have gone through the prosecution story and has duly examined evidence produced by both the parties. It is a settled position of law that High Court should not interfere in the order of acquittal recorded by the learned trial Court unless view taken by the trial Court is perverse or is against the material available on the record. It is also settled position of law that if two views are possible and one taken by the trial Court while acquitting the accused is plausible, High Court should refrain from interfering in such case of the acquittal of the accused person.

5. On a meticulous scrutiny of the evidence of the Chhotelala Pancholi (PW-3) the retired Cooperative Inspector it is revealed that he in his cross- examination has admitted that amount of Rs. 4200/- was shown to be returned to Ramdayal but voucher of the same was not found available and on account Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 11/11/2022 11:19:55 AM

of non availability of voucher only he had given the report about the embezzlement of that amount. Ramdayal (PW-1) in his examination-in-chief has clearly deposed that he had never deposited any amount of Rs. 4200/- in the society, and at no point of time he was a member of that society. Thus, he has not supported the prosecution story at all.

6. In the course of defence Exhibit-D/4 receipt was adduced by accused person and in cross examination Ramdayal has admitted that respondent No.2 Sudhir Mohan Yadav Manager had returned him Rs. 4200/- and he had received that amount. Learned trial Court has duly considered Exhibit D/4 and after examining and appreciating the evidence of witnesses has reached to the conclusion that no embezzlement was done by the respondent No.2 Sudhir Mohan and deceased respondent.

7. Findings recorded by the learned JMFC after appreciation of evidence and the material available on record, it cannot be said that findings recorded by the learned JMFC are in any way perverse or have been recorded without considering the material available on record.

8. There is nothing on record warranting interference in the well reasoned judgment of acquittal recorded by the learned trial Court. Learned trial Court has considered the evidence of all witnesses adduced before it by the parties in the light of material available on record and has recorded proper findings.

Therefore, no apparent fault is visible in the findings recorded by the learned trial Court. The view taken by learned JMFC while acquitting accused person appears to be just and proper.

9. Consequently, this appeal by the State against judgment and order of acquittal being without merit is worth dismissal. Hence, the same is dismissed.

Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 11/11/2022 11:19:55 AM

(DINESH KUMAR PALIWAL) JUDGE kundan

Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 11/11/2022 11:19:55 AM