Arun Kumar Rai vs State Of Uttarakhand
2023 Latest Caselaw 2558 UK

                                  Judgment reserved on : 23.05.2023
                                 Judgment delivered on : 29.08.2023

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

               Criminal Revision No.32 of 2013
     ( Under Section 379/ 401 of the Criminal Procedure Code)


Arun Kumar Rai                                      ........Revisionist
                                 Vs.
State of Uttarakhand                   .......... Respondent/Opp. Party

Mr. Arvind Vashistha, learned Senior Advocate assisted by Mr. Hemant
Singh Mehra, learned counsel for the revisionist.
Mr. B.P.S. Mer, Brief Holder for the State of Uttarakhand.


Hon'ble Pankaj Purohit, J.

This Criminal Revision is directed against the judgment and order dated 24.11.2012 passed by the learned Sessions Judge, Tehri Garhwal in Criminal Appeal No.30 of 2012, State Vs. Arun Kumar Rai, whereby, the learned Sessions Judge set-aside the judgment and order of acquittal dated 30.08.2010 passed by the learned Chief Judicial Magistrate, Tehri Garhwal in Criminal Case No.673 of 1999, State Vs. Arun Kumar Rai, whereby the revisionist- accused was acquitted of the charges under Sections 409, 420, 468, 471 IPC and remanded the case to the learned trial court with a direction to decide the matter within two months.

2. The case of the prosecution starts with lodging of a first information report (Ex. Ka-24) dated 25.01.1996 in Police Station- Chamba, District-Tehri Garhwal against the revisionist/ accused Arun Kumar Rai S/o Krishan Bhagwan Rai on the basis of which a Case Crime No. 21 of 1996, under Sections 409, 420, 468, 471 IPC was registered in Police Station - Chamba, District - Tehri Garhwal.

3. From the first information report (Ex.Ka-24) the case of the prosecution in nutshell is that the revisionist-accused Arun Kumar Rai S/o Krishan Bhagwan Rai was posted as Assistant Soil

Conservation Inspector in Soil Conservation Unit Chamba from 28.08.1986 to 22.05.1992; during this period he was given G.I. wire used in the construction work by the Soil Conservation Inspector Chamba. In the year 1992, revisionist-accused Arun Kumar Rai was transferred to Dehradun but he did not handover 8.90849 metric tons wire of the value of Rs.1,14,009.25; on correspondence the revisionist-accused vide letter dated 21.05.1993 informed the informant Soil Conservation Officer Narendra Nagar, District - Tehri Garhwal that all the wire measuring 8.90849 metric tons was given to Vijay Lal Tamta, Soil Conservation Inspector Chamba on 21.01.1991 and in support thereof the receipt given by Mr. Vijay Lal Tamta, Soil Conservation Inspector receiving the 89 quintal wire dated 21.01.1991 was enclosed. The said fact of receiving 89 quintals wire was denied by Vijay Lal Tama vide letter dated 27.07.1993 stating that no such wire was handed over to him by the revisionist-accused till date and about the receipt dated 21.01.1991 (photocopy) it was told by Vijay Lal Tamta that the said document was forged by putting his forged signature. The informant after appreciating sequence of the incident and the record came to the conclusion that the revisionist- accused had misappropriated the government stock and was taking shelter of forged documents in his defence. With these averments the informant Dr. Gopal Singh Rawat, Soil Conservation Officer lodged the first information report, the chick (Ex. Ka-25) was registered against the revisionist-accused.

4. The investigation ensued, sample of hand writing examination of PW-2 Ashok Kumar Sharma, Assistant Soil Conservation Inspector and signature of Vijay Lal Tamta were taken and were sent to hand writing expert and a report was submitted by the handwriting expert. After investigation, the charge-sheet (Ex.Ka-34) was submitted on 22.01.1999 against the revisionist- accused under sections 409, 429, 468, 471 IPC and the cognizance was taken.

5. On 19.10.2000 the learned Chief Judicial Magistrate framed the charges against the revisionist-accused under Sections 409,

420, 468, 471 IPC. The revisionist- accused pleaded not guilty and claimed for his trial.

6. During the trial the prosecution produced PW-1 Lal Singh Rana (Storekeeper) Soil Conservation Office Narendra Nagar, PW-2 Ashok Kumar Sharma, Assistant Soil Conservation Inspector, Soil Conservation Office, New Tehri, PW-3 Raghunath Singh,(Retired ) A.O.O., Agriculture Defence, Agriculture Department Rampur, PW-4 Dr. G.S. Rawat (informant), Deputy Director, Soil Conservation Department, Dehradun, PW-5 Ganpat Singh Pundir (Retired) Accountant, Directorate of Agriculture, Dehradun, PW-6 Kishori Lal, Chief Agriculture Officer, Narendra Nagar, PW-7 Vijay Lal Tama, Assistant Director, Jalagam Kirtinagar, PW-8 Ishar Dutt Jaiswal, PW-9 B.K. Singh, Soil Conservation Officer, Hardoi, Uttar Pradesh, PW-10 Inspector Nawab Singh, Vigilence Establishment, Bareilly and PW-11 Vikram Singh, Prosecution Officer, New Tehri as prosecution witnesses and 34 documentary evidence for the purpose of proving the charges against the revisionist-accused.

7. After completion of the prosecution evidence, the statements of the revisionist- accused under section 313 Cr.P.C. were recorded in which he categorically stated that the prosecution case was false and further stated that he was falsely implicated by Vijay Lal Tama, Incharge of the store; the wire was not issued to him. But in his defence, no evidence was produced by the revisionist-accused.

8. The learned trial court after examining and appreciating of the evidence of the prosecution witnesses, recorded a very categorical finding that from the evidence of prosecution it has not even been proved that 123.77 quintal wire was ever entrusted to the revisionist-accused by the Storekeeper PW-1 Lal Singh Rana on 16.11.1989 as there was no signature of the revisionist-accused as Ex.Ka-23 against entry in the store register. On the basis of this the learned trial court came to the conclusion that when the entrustment was not proved, the charge of embezzlement under section 409 IPC

cannot be said to have stood proved. There was no evidence of entrustment of wire against the revisionist-accused. So far as the charge of Section 468 and 471 IPC is concerned, on the appreciation of the evidence of PW-2 Ashok Kumar, PW-7 Vijay Lal Tamta, though it was proved that the Ex-Ka-14 disputed forged receipt dated 21.01.1991, was written by PW-2 Ashok Kumar, but none of the documents contained the signature of the revisionist-accused rather it was proved that the signature of PW-7 Vijay Lal Tamta was there and himself admitted the fact that the signature on receipt (Ex.Ka-14) was his signature. The learned trial court disbelieved the theory of the prosecution as brought about by PW-7 that the revisionist-accused used blank paper signed by PW-7 Vijay Lal Tama. Thus the learned trial court came to this conclusion that the prosecution miserably failed to prove that the receipt (Ex.Ka-14) was forged or made fraudulently by the revisionist-accused.

9. Apart from this the learned trial court also found on appreciation of the evidence of PW-9 B.K. Singh, who was the Inquiry Officer in the departmental inquiry admitted that the departmental inquiry was conducted in the matter but no evidence or document or any evidence was available on record as to what was the result of the aforesaid departmental inquiry.

10. After hearing the counsel for the parties and examining and appreciating the evidence on record, the learned Chief Judicial Magistrate found the evidence produced by the prosecution not sufficient enough to convict the revisionist-accused and found that he was falsely implicated due to departmental enmity/rivalry and accordingly gave the benefit of doubt to the revisionist-accused and acquitted him of the charges under Sections 409, 420, 468, 471 IPC vide judgment and order dated 30.08.2010.

11. The State feeling aggrieved by the aforesaid judgment and order dated 30.08.2010 by which the revisionist- accused was acquitted challenged it by filing a Criminal Appeal No. 30/12 State Vs. Arun Kumar Rai before the learned Sessions Judge Tehri

Garhwal. The learned Sessions Judge Tehri Garhwal vide impugned judgment and order set aside the acquittal of the revisionist accused and remanded the case to the learned Chief Judicial Magistrate to decide it within two months.

12. Heard Mr. Arvind Vashistha, learned Senior Counsel appearing on behalf of the revisionist-accused assisted by Mr. Hemant Singh Mehra, Advocate and Mr. B.P.S. Mer, learned Brief Holder for the State of Uttarakhand.

13. At the outset, it is submitted by the counsel for the revisionist -accused that it is a settled principle of law that an accused is presumed innocent until proved guilty and the learned trial court's acquittal further bolsters the presumption of his innocence. It is submitted by the learned Senior Counsel appearing on behalf of the revisionist-accused that the acquittal recorded by the learned trial court in favour of the revisionist-accused was based on the proper analysis of the evidence and the findings are based on the fundamental principle of the criminal jurisprudence.

14. It is strenuously argued by the learned Senior Counsel appearing on behalf of the revisionist-accused that the learned Appellate Court committed manifest error of law and fact while upsetting the acquittal of the revisionist-accused on wrong and erroneous appreciation of the evidence and thus the judgment and order of the appellate court suffers from vice of the perversity. It is further submitted that it is a case where from the appreciation of the evidence no entrustment of the wire to revisionist-accused was proved, therefore, the learned trial court was right and within its competence in holding that in the absence of entrustment no charge of embezzlement can said to be proved against the revisionist-accused. The attention of this Court was drawn on para no.-7 of the judgment and order of the learned appellate court, wherein, the finding recorded by the learned trial court was upset by the learned Sessions Judge, Tehri Garhwal and it is argued that even the appellate court did not disbelieve the theory of non-entrustment of the wire to the revisionist-

accused but it appreciated the facts against the revisionist-accused simply for the reason that since there was no entrustment, there was the need to prepare the receipt (Ex-Ka-14).

15. It is submitted by the learned Senior Counsel that from entire record and evidence of the prosecution witnesses it cannot be proved by legal evidence that the receipt was prepared by the revisionist -accused, rather it was proved that the receipt was written by PW-2 Ashok Kumar and it contained the signature of PW-7 Vijay Lal Tamta, which fact was also admitted by PW-7 Vijay Lal Tamta. For these reasons, the judgment and order of the learned Appellate Court is contrary to the evidence available on record and is nothing but misreading of the evidence and for that reason the same is perverse and deserves to be interfered with even in revision.

16. The learned counsel for the revisionist- accused further submitted that the learned appellate court while hearing the appeal against acquittal exceeded its jurisdiction which was limited as per the law. In order to substantiate his argument the reliance was placed on the judgment and order passed by the Hon'ble Appex Court in case of Ghurey Lal Vs. State of Uttar Pradesh (2008) 10 SCC 450 and it is submitted that while hearing the appeal against acquittal the power of reviewing the evidence must be exercised with great care and caution and in order to ensure that the innocents are not punished, the appellate court should attach due weight to the lower court's acquittal because the presumption of the innocence is further strengthened by the acquittal and the appellate court should reverse an acquittal only when it has very substantial and compelling reasons. Paragraph nos.3 and 69 of the said judgment are quoted herein under:-

" 3. We have endeavoured to set out the guidelines for the appellate courts in dealing with appeals against acquittal. An overriding theme emanates from the law on appeals against acquittals. The appellate court is given wide powers to review the evidence to come to its own conclusions. But this power must be exercised with great care and caution. In order to ensure that the innocents are not punished, the appellate court should

attach due weight to the lower court's acquittal because the presumption of innocence is further strengthened by the acquittal. The appellate court should, therefore, reverse an acquittal only when it has " very substantial and compelling reasons".

69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong."

17. Per contra, the learned State Counsel supported the impugned judgment and order passed by the learned Sessions Judge, Tehri Garhwal, whereby, the judgment and order of acquittal passed by the learned Chief Judicial Magistrate, Tehri Garhwal was set-aside.

But despite sincere efforts he could not, from the evidence of the prosecution witnesses, substantiate as to how the charges are proved against the revisionist-accused.

18. Having heard the learned counsel for the parties and having gone through the judgments and orders passed by the learned trial court as well as appellate court, this Court further examined the evidence in order to ascertain the argument advanced on behalf of the learned Senior Counsel for the revisionist-accused. From the evidence of PW-1, PW-2, PW-3 and PW-7 was again visited by this Court on an argument of perversity raised by the learned counsel for the revisionist-accused. The argument raised on behalf of the revisionist- accused found favour by this Court, inasmuch as, from the evidence

of PW.1, PW-2 and PW-3 it is nowhere proved that the revisionist- accused was ever entrusted 123.77 quintal wire which was used for making check- dam. There was not a single document available on record, wherein, any signature of the revisionist-accused was found which would suggest that the wire was ever entrusted to him. From the evidence of PW-7 Vijay Lal Tamta also failed to prove that the disputed receipt (Ex-Ka-14) dated 21.01.1991 was written by the revisionist-accused. However, there was evidence of PW-2 Ashok Kumar which proved that the Ex-Ka-14 was in his hand writing and there was signature of PW.-7 Vijay Lal Tama on it. PW.7 Vijay Lal Tamta also admits his signature on Ex.-Ka-14 but it was stated by PW-2 Ashok Kumar as well as PW-7 Vijay Lal Tamta that the signature of PW-7 Vijay Lal Tamta was there on the blank paper on which the PW.-2 Ashok Kumar has written the receipt on the asking of revisionist-accused.

19. The learned trial court disbelieved the theory of misuse of the signed paper which contained the signatureof PW-7 Vijay Lal Tamta and, therefore, it was not believed by the learned trial court that the Ex-Ka-14 was prepared by the revisionist- accused. It has been categorically recorded at Para -19 of page -11 of the judgment and order of the learned trial that none of the documents contained the signature of the revisionist-accused and consequently disbelieving the theory of the prosecution, he acquitted the revisionist-accused.

20. So far as the powers of Appellate Court while hearing the appeal against acquittal is concern, there is no denial of the fact that the appellate court should interfere and reverse an acquittal on a very substantial and compelling reasons.

21. I do find force in the arguments advanced on behalf of the revisionist-accused that the appellate court had no reason to interfere in the well-reasoned judgment and order of acquittal recorded by the learned trial court, what to say of 'very substantial and compelling reasons' which is reflected from the above discussions.

22. In this view of the matter the judgment and order dated 24.11.2012 passed by the learned Appellate Court, whereby, the judgment and order of dated 30.08.2010 passed by the learned Chief Judicial Magistrate, Tehri Garhwal acquitting the revisionist-accused was set aside, is hereby quashed. The revision is thus allowed.

23. The revisionist-accused is on bail. He needs not to surrender. His bail bonds are cancelled and sureties are discharged.

24. Let the lower court records be sent back for necessary action.

(Pankaj Purohit, J.) 29.08.2023 SK/-