Punjab-Haryana High Court
Lekh Raj vs Subhash Chander And Others on 20 April, 2024
Neutral Citation No:=2024:PHHC:054427
CRM-A-705-2020 (O&M) -1 . 2024:PHHC:054427
106 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-A-705-2020 (O&M)
Date of Decision:20.04.2024
Lekh Raj ...Appellant
Vs.
Subhash Chander and others ...Respondents
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present: Mr. Kamal Narula, Advocate
for the applicant-appellant.
***
N.S.Shekhawat J.
CRM-16059-2024
1. The present application has been filed under Section 482 Cr.P.C
with a prayer to restore the main case i.e CRM-A-705-2020 (O&M), which
was dismissed for non-prosecution vide order dated 01.04.2024.
2. For the reasons mentioned in the application, the application is
allowed and the main case is restored to its original number and status and the
main case is taken up on Board today itself.
CRM-12886-2020
1. The applicant/appellant has moved the instant application under
Section 5 of Limitation Act for condonation of delay of 13 days in filing the
present appeal.
2. For the reasons mentioned in the application, the minimal delay of
13 days in filing the present appeal is condoned.
Main case
1. The applicant has filed the present application under Section 378
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(4) Cr. P.C with a prayer to grant special leave to appeal against the impugned
judgment dated 09.12.2019, passed by the Court of Judicial Magistrate Ist
Class, Fazilka, whereby the respondnets were ordered to be acquitted by the
Trial Court.
2. As per the case of the prosecution, the applicant/petitioner had
taken a shop measuring 16' x 32' on rent from Roranwali Mandi, Aminganj
Company Limited vide the rent deed dated 14.12.2001 and the possession of the
shop was handed over to the applicant/petitioner by the company on the same
day. Since then, the applicant/petitioner was carrying on his business of
pesticides and insecticides under the name and style of M/s Kisan Kheti Centre
in the shop in dispute. He had never surrendered the possession of the shop to
any person nor any ejectment order had passed against him by any competent
authority. However, the respondents/accused illegally wanted to dispossess the
applicant/petitioner from the shop in question. At about 06:00 PM on
04.04.2016, the respondents along with some musclemen came to the shop of
the petitioner and started beating him and also committed theft of the important
documents, furniture, fixtures and others goods from the shop in question,
without the consent of the applicant/petitioner and also dispossessed him from
the same. Subhash Chander, Manjit Singh, Jaswinder Singh and Chandi Ram
had also witnessed the occurrence. They also requested the accused not to
dispossess the applicant/petitioner, but they threatened to kill the complainant.
The matter was reported by the applicant/petitioner to the police post Mandi
Aminganj Roranwali, but no action was taken by the police. The
applicant/petitioner also made a complaint to the Senior Superintendent of
Police, Fazilka, but the police had colluded with the accused and chose not to
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proceed against them.
3. During the course of trial, the applicant/petitioner appeared as
CW-1 and reiterated the averments made in the complaint. He also examined
five witnesses namely C.Gurpreet Kamboj as CW-2, Rajesh Bhardwaj
Draftsman as CW-3, Subhash Chander eye-witness as CW-4, Anil Kumar,
Document Writer as CW-5 and Jaswinder Singh, eye-witness as CW-6 and also
exhibited the following documents:-
. Ex.C1:Copy of rent deed
. Ex.C2:Signature of Lekh Raj
. Ex.C3: Signature of Lekh Raj on application 06.04.2016 moved to SSP
Fazilka
. Ex.C4:Copy of application to SHO PS Arniwala
. Ex.C5 &C6: True copies of applications dated 29.01.2016 and
06.04.2016.
. Ex.C7:Site plan dated 25.03.2016
. Ex.C8: Copy of rent note
. Ex.C9: True attested copy of register of Anil Kumar
. Ex.CW6/A: Application 29.01.2016
. Ex.CW6/B: Application 06.04.2016
4. After closure of the prosecution evidence, the statements of the
respondents/accused were recorded under Section 313 Cr. P.C and the entire
incriminating evidence was put to them. They had taken a defence that Dheeraj
Kumar, respondent No.2/ accused had taken the shop on rent at Roranwali
Mandi Aminganj, on 08.09.2015 from Mandi Aminganj Company Limited and
the possession of the shop had been handed over to him. Moreover, the
respondent No.2 had been paying the rent of the shop to the said company till
date and no occurrence had taken place at the shop in question. The
respondents also relied upon documents i.e Xerox copy of proceedings book
mark DA, Xerox copy of agreement Mark DB, Xerox copy of security receipt
Mark DC to Mark DK and site plan Mark DL.
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5. Learned counsel for applicant/petitioner submits that the main
allegations against the respondents was that the appellant had taken the shop on
rent on 14.12.2001 and even a rent deed was executed in this regard in favour of
the applicant/petitioner. The possession of the shop was handed over to the
applicant/petitioner on the same day and he had not been ejected till date.
Learned counsel further contends that there was sufficient evidence to show that
on 04.04.2016, the applicant/petitioner was in possession of the shop, the
respondents had taken away the important documents, furniture, fixtures and
various goods lying in the shop and had forcibly dispossessed the
applicant/petitioner. When the police did not take any action on the grievances
raised by the petitioner, the applicant/petitioner had no other option, but to file a
criminal complaint against the respondents. The impugned judgment is based
on mis-appreciation of evidence and is liable to be set aside by this Court.
6. In the present case, the main allegation levelled by the
applicant/petitioner is that on the date of occurrence, i.e. on 04.04.2016, while
he was in possession of the shop, the respondents No.1 to 7 had formed an
unlawful assembly along with certain unknown musclemen. It has also been
alleged that they had beaten up the applicant/petitioner and he was forcibly
dispossessed from the shop in question. However, surprisingly, the
applicant/petitioner i.e. victim did not even suffer even one bruise and the
version of the complainant was highly unbelievable. Apart from that, on
06.04.2016, the applicant/petitioner had allegedly moved a complaint,Ex.C-3 to
the SSP, Fazilka. The Trial Court has rightly observed that in the said
application, there is no mention of any date or time of the occurrence. Even,
from a perusal of the said complaint, it is apparent that while filing the present
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complaint before the Court, the applicant/petitioner had considerably improved
the version and several other particulars were mentioned for the first time in the
complaint before the Court.
7. Apart from that, the applicant/petitioner alleged that on the date of
occurrence i.e 04.04.2016, he was in possession of the shop in dispute and was
dispossessed by the respondents. However, the Trial Court had rightly held that
as per the rent deed, the applicant/petitioner had taken the shop for a period;
01.12.2001 to 31.10.2002 i.e for a period of 11 months only and the tenancy
already stood terminated on 31.10.2002 itself. Thus, on the date of occurrence
i.e. 04.04.2016, the applicant/petitioner was not in possession of the shop in
question and he could not produce any documentary evidence in support of his
case. Rather from the defence evidence, it was apparent that the shop in dispute
was given on rent to respondent No.2 by the landlord company on 08.09.2015.
Even, the defence was successful in proving the case that on the date of
occurrence, the respondents/accused were already in possession of the shop in
dispute and there was no question of trespassing in the shop and dispossessing
the applicant/petitioner from the shop.
8. It has been held by the Hon'ble Supreme Court in the matter of
"Bhaskarrao and others Vs. State of Maharashtra", 2018 AIR (Supreme
Court) 2222; 2018 (5) RCR (Criminal) 228 as follows:-
"14. As the trial court and High Court, having
appreciated the evidence on record, has come to diametrically
opposite conclusions, mandating herein to observe certain witness
statements which may have an important bearing in this case. In
the processes of appreciating the evidence at the appellate stage,
we need to keep in mind the views of this court as expressed in
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Tota Singh and Anr. v. State of Punjab, 1987(2) RCR (Criminal)
35 : 1987 CriLJ 974 -
"The High Court has not found in its judgment that the
reasons given by the learned Sessions Judge for discarding the
testimony of PW2 and PW6 were either unreasonable or perverse.
What the High Court has done is to make an independent
reappraisal of the evidence on its own and to set aside the
acquittal merely on the ground that as a result of such
reappreciation, the High Court was inclined to reach a conclusion
different from the one recorded by the learned Sessions Judge.
This Court has repeatedly pointed out that the mere fact that the
Appellate Court is inclined on a reappreciation of the evidence to
reach a conclusion which is at variance with the one recorded in
the order of acquittal passed by the Court below will not constitute
a valid and sufficient ground for setting aside the acquittal. The
jurisdiction of the Appellate Court in dealing with an appeal
against an order of acquittal is circumscribed by the limitation
that no interference is to be made with the order of acquittal unless
the approach made by the lower Court to the consideration of the
evidence in the case is vitiated by some manifest illegality or the
conclusion recorded by the Court below is such which could not
have been possibly arrived at by any court acting reasonably and
judiciously and is, therefore, liable to be characterized as
perverse. Where two views are possible on an appraisal of the
evidence adduced in the case and the court below has taken a view
which is plausible one, the Appellate Court cannot legally interfere
with an order of acquittal even if it is of the opinion that the view
taken by the Court below on its consideration of the evidence is
erroneous."
15. In Ramesh Babulal Doshi v. State of Gujarat, 1997(3) RCR
(Criminal) 62 : 1996 CriLJ 2867, this Court observed:
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"This Court has repeatedly laid down that the mere
fact that a view other than the one taken by the trial Court can be
legitimately arrived at by the appellate Court on reappraisal of the
evidence cannot constitute a valid and sufficient ground to
interfere with an order of acquittal unless it comes to the
conclusion that the entire approach of the trial Court in dealing
with the evidence was patently illegal or the conclusions arrived at
by it were wholly untenable. While sitting in judgment over an
acquittal the appellate Court is first required to seek an answer to
the question whether the findings of the trial Court are palpably
wrong, manifestly erroneous or demonstrably unsustainable. If the
appellate court answers the above question in the negative the
order of acquittal is not to be disturbed."
9. Still further in Criminal Appeal No(s.) 410-411/2015 [Ravi
Sharma Vs State (Government of N.C.T. of Delhi) and another], decided on
11.07.2022, Hon'ble the Supreme Court has held as under:-
"Before venturing into the merits of the case, we would like
to reiterate the scope of Section 378 of the Code of Criminal
Procedure (for short 'Cr.P.C.') while deciding an appeal by the High
Court, as the position of law is rather settled. We would like to quote
the relevant portion of a recent judgment of this Court in
Jafarudheen and Others v. State of Kerala (2022 SCC Online SC
495) as follows:
"25. While dealing with an appeal against acquittal by invoking
Section 378 of the Cr.PC, the Appellate Court has to consider
whether the Trial Court's view can be termed as a possible one,
particularly when evidence on record has been analyzed. The reason
is that an order of acquittal adds up to the presumption of innocence
in favour of the accused.
Thus, the Appellate Court has to be relatively slow in reversing the
order of the Trial Court rendering acquittal.
Therefore, the presumption in favour of the accused does not
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get weakened but only strengthened. Such a double presumption
that enures in favour of the accused has to be disturbed only by
thorough scrutiny on the accepted legal parameters."
10. Considering the peculiar facts and circumstances of the case noted
above, coupled with the reasons aforementioned, this Court is of the considered
view that the instant application for leave to appeal is bereft of merit and
without any substance; thus, it must fail. No case for interference has been
made out. Consequently, the impugned judgment dated 09.12.2019 passed by
the Court of JMIC, Fazilka is ordered to be upheld.
11. Resultantly, with the above-said observations made, the application
for special leave to appeal stands dismissed.
12. Pending application(s), if any,are also disposed off.
13. Case property, if any, be dealt with, and, destroyed after the expiry
of period of limitation for filing the appeal, in accordance with law.
(N.S.SHEKHAWAT)
20.04.2024 JUDGE
hitesh Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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