Madhya Pradesh High Court
Bhanwarlal vs Manish on 29 November, 2023
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL REVISION No. 3075 of 2022
BETWEEN:-
BHANWARLAL S/O SHRI AMARSINGH YADAV, AGED
ABOUT 60 YEARS, OCCUPATION: BUSINESS GRAM
GIDOR HAT, AT PRESENT PANCHSHEEL COLONY,
BIORA (MADHYA PRADESH)
.....PETITIONER
(BY MS. USHA CHOUHAN, ADVOCATE)
AND
1. MANISH S/O SHRI RAMSINGH YADAV, AGED
ABOUT 29 YEARS, OCCUPATION: BUSINESS
GIDOR HAT, THANA SUTHALIYA TEHSIL BIORA,
RAJGARH (MADHYA PRADESH)
2. M.P. RAJYA DWARA AARAKSHI KENDRA BIORA
CITY, DISTRICT RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI HARISH JOSHI, GOVERNMENT ADVOCATE)
RESERVED ON : 23.11.2023
PRONOUNCED ON : 29.11.2023
T h is criminal revision having been heard and reserved for orders,
coming on for pronouncement this day, the court passed the following:
ORDER
The petitioner has filed the present petition under Section 397 of Cr.P.C.
being crestfallen by judgment dated 14.05.2022 passed in CRA
No.200206/2016 by the learned First Additional Sessions Judge, District
Rajgarh whereby the learned appellate Court has affirmed the judgment and
order dated 30.08.2016 passed in Criminal Case No.427/2012 by JMFC,
Rajgarh acquitting respondent from the charges under Sections 379 and 420 of
IPC, 1860. Hence, the present petition before this Court.
02. Brief facts of the case are that the complainant was having bank
account in State Bank of India bearing Account No. 53017609782. By using of
ATM of that account, one person withdraw the total amount illegally of
Rs.1,23,000/-, 24 times from the ATM of ICICI Bank and 3 times from the
ATM of State Bank of India. Thereafter, the complainant made a written
complaint at Police Station-Biaora, District-Rajgarh, on taking action on the
complaint, CD of CCTV Camera installed at ATM and a computer list of
money withdrawn from the ATM. Being run CD, the complainant identified the
accused Manish and Navin and on the basis of investigation, accused Manish
and Navin were found that they had committed theft of ATM of the
complainant and withdraw the amount of Rs.1,23,000/- from the ATM. Hence,
the police has lodged the FIR against the petitioner at Police Station-Biaora,
District-Rajgarh for offence under sections 379 & 420/34 of IPC, 1860.
03. Thereafter, after following the due procedure of law and due
investigation, the charge-sheet has been filed.
04. The learned trial Court, after appreciation of the evidence available on
record, acquitted the respondents from the offence under Sections 379 and
420/34 of IPC vide order dated 30.08.2016.
05. Being aggrieved by the aforesaid order of acquittal dated 30.08.2016
passed by the learned trial Court, the petitioner has filed an appeal before the
learned First Additional Sessions Judge, District-Rajgarh and vide the impugned
judgement dated 14.05.2022, the learned appellate Court dismissed the appeal
filed by the petitioner and affirmed the order of acquittal passed by learned trial
Court. Hence, the present revision has been filed by the petitioner before this
Court.
0 6 . Learned counsel for the petitioner submitted that the impugned
judgment passed by learned court below is contrary to law and facts on record.
The learned trial Court has erred in acquitting the respondent No. 1 whereas the
specific role has been attributed to the respondent No. 1. It is further submitted
that the learned trial Court has erred in not appreciating the fact that Court
below has erred in not considering the CCTV Footage taken from the ATM
Unit from which it is clear that the respondent No. 1 taking money from
the ATM illegally, which is corroborated with the statement of Bhawan
Lal (PW-1), Rohit (PW-2) and Yogesh (PW-3) and Section 65B of
Evidence Act has also not been complied with properly, despite which the
learned trial Court acquitted the respondent when the charges are proved. It is
further submitted that the learned Courts below have not appreciated the
evidence and acquitted the respondent No. 1 even after specific allegations and
material against them on record. Hence, prays for setting aside the impugned
order and prays for conviction of the respondent No. 1.
07. On the other hand, learned counsel for the respondent No. 1 has
opposed the prayer made by counsel for the petitioner and submits that the
learned trial Court as well as learned first appellate Court have well appreciated
the evidence available on record and acquitted respondent No. 1 after
considering each and every aspect of the case. It is also remonstrated that
provisions of Section 401(3) of Cr.P.C., this Court cannot convert the finding
of acquittal into one of conviction. Hence, no interference is required and prays
for dismissal of the petition.
08. I have heard the learned counsel for the parties and perused the
record.
09. Having heard the learned counsel for the parties, the question for
determination is as to whether this Court in exercise of revisional jurisdiction
can set aside the order of acquittal and convert the same into findings of
conviction?
10. From the face of record, it is an admitted position that respondent
No. 1 has been acquitted by the learned trial Court and the order of acquittal
has been affirmed by the learned appellate Court. Being crestfallen by that
order, this criminal revision has been filed before this Court under Section 397
r/w 401 of Cr.P.C.
11. Before dwelling on the point, it would be appropriate to quote the
respective provision prescribed under Section 401(3) of Cr.P.C. as under:
The provisions of Section 401 (3) of Cr.P.C. provides as
under:
"(1)....
(2)......
(3) Nothing in this section shall be deemed to
authorize a High Court to convert a finding of
acquittal into one of conviction."
1 2 . Nevertheless, the provision predicated under 401(5) of Cr.P.C.
mandates that if High court is satisfied that the revision petition was made under
erroneous belief that no appeal lies thereto and that it is necessary in the
interests of justice to do so, the High Court may treat the application for
revision as an appeal and deal with the same accordingly. In the case at hand,
since an appeal has already been filed by the petitioner against the order of
acquittal passed by the learned trial Court, the remedy of appeal is not available
for the petitioner against the order of learned appellate Court affirming the
finding of learned trial Court.
13. Now, the scope of revisional jurisdiction is also required to be ruminated.
On this aspect, In Kaptan Singh and others vs. State of M.P. and another , AIR 1997
SC 2485, (1997) CCR 109 (SC), the Hon'ble Supreme Court considered a large
number of its earlier judgments, particularly Chinnaswami vs. State of Andhra
Pradesh, AIR 1962 SC 1788; Mahendra Pratap vs. Sarju Singh, AIR 1968, SC 707;
P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer
Singh, AIR 1981 SC 1415 and held that revisional power can be exercised only when
"there exists a manifest illegality in the order or there is a grave miscarriage of
justice".
14. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999)
2 SCC 452, the Hon'ble Apex Court held as under:
"In Its revisional jurisdiction, the High Court can call for and
examine the record of any proceedings for the purpose of
satisfying itself as to the correctness, legality or propriety of
any finding, sentence or order. In other words, the jurisdiction
is one of Supervisory Jurisdiction exercised by the High Court
for correcting miscarriage of justice. But the said revisional
power cannot be equated with the power of an Appellate Court
nor can it be treated even as a second Appellate Jurisdiction.
Ordinarily, therefore, it would not be appropriate for the High
Court to re-appreciate the evidence and come to its own
conclusion on the same when the evidence has already been
appreciated by the Magistrate as well as the Sessions Judge in
appeal, unless any glaring feature is brought to the notice of
the High Court which would otherwise tantamount to gross
miscarriage of justice.
15. In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338 , the Hon'ble Apex
Court held as under:
"The High Court in exercise of its revisional power has upset the
concurrent findings of the Courts below without in any way
considering the evidence on the record and without indicating as
to in what manner the courts below had erred in coming to the
conclusion which they had arrived at. The judgment of the High
Court contains no reasons whatsoever which would indicate as
t o why the revision filed by the respondent was allowed. In a
sense, it is a non-speaking judgment."
16. In upshot of the aforesaid prepositions, this Court while using its
revisional jurisdiction, has to examine that whether there is a manifest illegality in
the judgment of the learned Courts below or there is miscarriage of justice.
1 7 . At the outset, it would be noticed that there is no substratum
whatsoever laid down by the petitioner in order to establish the prosecution
case against the respondent No. 1. Petitioner/complainant has filed a report at
Police Station-Biaora, District-Rajgarh on 05.10.2011 on the basis of which FIR
was filed, however, the reason for not filing the report at Police Station-Biaora
is mentioned as he has been threatened by the respondent in front of the Police
Station, whereas there is not written proof with regard to the same. There is no
proper explanation for omissions and contraditions in the statement of the
witnesses so also the delay in lodging the FIR has also not been properly
explained.
18. In the case at hand, the findings of learned trial Court as well as
learned appellate Court are based on proper appreciation of evidence. Both the
courts below have assigned clear, cogent and convincing reasons for acquitting
respondent No. 1, therefore, in absence of any perversity in such findings, this
Court, in its limited revisional jurisdiction, cannot be interfered with the
conclusions rendered by the Courts below. so far as the request for remanding
back the case is concerned, this matter relates to the incident happened in the
year 2011 almost more than 12 years ago, therefore, at this stage where the
learned trial Court as well as the First Appellate Court have after analysing the
evidence in proper perspective acquitted the respondent from the aforesaid
offences, therefore, it would not be propitious to remand back the matter for
further litigation. Be that as it may, the appellant is also unable to point out any
such infirmity or irregularity or illegality in the judgment of both the Courts
below by which the matter needs to be remanded back. Hence, the request of
remanding back the matter for further litigation being sans of merit deserves to
be rejected.
19. Accordingly, Criminal Revision No.3075/2022 stands dismissed and
the order of acquittal passed by learned trial Court as well as learned appellate
Court is hereby affirmed.
20. Pending I.As, if any stands disposed of.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
