STATE OF GUJARAT Vs. SHAH SANJAYKUMAR K

JUDGEMENT

(1.) This is an appeal under Section 378(1) of the Cr.P.C. filed by the State of Gujarat against the acquittal order by the learned Chief Judicial Magistrate, Surendranagar by rendering his judgment, Exh. 138 dated 31-7-1990 in Criminal Case No. 971 of 1989 which was on his file.

(2.) The respondents were accused in Criminal Case No. 971 of 1989. Originally when the complainant Shri Pravinchandra Vakhatsinh Sanghvi lodged his private complaint in the Court of the Chief Judicial Magistrate, Surendranagar, he had cited present first three respondents as accused Nos. 3, 1 and 2 respectively in his complaint. The names of present respondents are stated in Appeal Memo according to names stated in the Judgment, Exh. 138. The complainant lodged his private complaint against first three respondents in the Court of the Chief Judicial Magistrate, Surendranagar and as per that order below that complaint, that complaint was sent under Section 156(3) of the Cr.P.C. 1973 to the Police Inspector, Surendranagar for investigation. On completion of investigation charge-sheet was filed and in that charge-sheet present respondent No.4 was also shown as accused No.4. Therefore for the sake of convenience the parties will be referred to as the complainant and accused hereinafter.

(3.) The facts leading to this present appeal in a nut shell are as follows:- As per the title of the Exh. 138, accused No.1 and 2 are the real brothers, accused No.3 is an uncle of accused Nos. 1 and 2. The complainant Shri Pravinchandra Vakhatsinh Sanghvi entered into a partnership firm named `Lucky Sigar Agency' and for that a partnership deed dated 30-1-1985 (Exh. 39) was executed by the partners. It is the case of the complainant that one Kanchanben, mother of accused No.1 and 2 was also partner in the said partnership firm, and that present complainant and Smt. Kanchanben Kushaldas Shah were the sleeping partners. According to him, accused Nos. 1 to 3 are related to each other and the complainant is not related to any of the accused. It is the case of the complainant that on or about 11-2-1985, the partnership firm through its partners got opened one Current Deposit Account in the name of said Firm with Union Bank of India, Surendranagar, and at that point of time, requisite documents were filled-in and signed by the partners and were submitted to the bank authorities. It is further the case of the complainant that on 18-11-1985, accused No. 1 to 3 got opened one Cash Credit Account in the name of said Partnership Firm with the said Union Bank of India and at that point of time, accused No. 4 was a Manager of the said Bank. It is the case of the prosecution that accused Nos. 1 to 3 prepared false documents by signing the documents in the name of complainant and they committed forgery by preparing false documents and used those forged documents as genuine for the purpose of cheating. It is the case of the prosecution that on or about 18-11-1985, four documents were thus forged and then submitted to the Union Bank of India for getting opened a Cash Credit Account in the name of Partnership Firm and by getting opened that Cash Credit Account, they obtained an advance of Rs. 2,50,000.00 and out of that amount of Rs. 2,50,000/-, an amount of Rs. 1,25,000.00 was credited in the books of accounts of the Partnership Firm and rest of the amount was transferred to an account of `Jai Bhavani Ceramics" which is the ownership of accused Nos. 1 to 3. In the year 1987 the complainant came to know that accused Nos. 1 to 3 have taken a loan of Rs.2,50,000.00 from the Union Bank of India by getting opened a Cash Credit Account. He also came to know that some mismanagement was done by accused Nos. 1 to 3 in the affairs of said Partnership Firm, and therefore, the complainant gave one notice dated 1-7-1987 (Exh. 56) to accused Nos. 1 to 3. It is further the case of the complainant that accused Nos. 1 to 3 did not comply with the notice dated 1-7-1987 and therefore he wrote one letter dated 14-9-1987 to the Union Bank of India and requested to furnish him the copies of documents submitted by accused Nos. 1 to 3 for getting opened a Cash Credit Account in the name of said Partnership Firm. It is further the case of the complainant that said Bank furnished copies of documents to the complainant. He also took an inspection of the documents by personally visiting the Bank on 18-9-1987 and on receiving the copies of the documents and on taking inspection of documents he came to know that documents which were submitted to Bank by accused Nos. 1 to 3 were containing signatures in the name of Shri P.V. Sanghvi, but in fact those signatures are not of complainant and therefore it is the case of the complainant that with a view to get opened a Cash Credit Account in the name of Partnership Firm, accused Nos. 1 to 3 prepared false documents, and committed forgery for the purpose of cheating the Union Bank of India. He lodged the complaint Exh. 1 on 24-11-1987 in the Court of the Chief Judicial Magistrate, Surendranagar. That complaint was lodged only against accused Nos. 1 to 3, i.e., the partners of the plaintiff Partnership Firm other than Kanchanben. That complaint was sent for investigation under Section 156(3) to the Police Inspector, Surendranagar and on police investigation being completed the Police Inspector, Surendranagar filed a charge-sheet against the present accused Nos. 1 to 3 along with the Manager of the Union Bank of India who is cited as accused No.4. It is the case of the prosecution that as per the charge-sheet, case against accused No.4 is of aiding and abating commission of the offences committed by accused Nos. 1 to 3. That charge-sheet was filed on 18-4-1989 for the offences punishable under Section 467, 468 and 471 of the I.P.C. Thereafter charge Exh. 18 was framed against accused No.1 to 4 on 25-9-1989 and that charge was framed for offences punishable under Sections 420, 466, 468, 471 read with Section 114 of the I.P.C. After the said charge was framed on 25-9-1989, accused No.4 the Manager of Union Bank of India preferred Miscellaneous Criminal Application No. 352 of 1980 for revision to this Court and by filing that Revision Application, he requested this Court to quash and set aside the proceedings in Criminal Case No. 971 of 1989. This Court (Coram : B.S.Kapadia, J) by its order dated 16-2-1990 dismissed that Criminal Revision Application. That order of this Court is on the record at Exh. 35. In support of the case for which charge has been framed, prosecution examined in all 11 witnesses and produced number of documents. After the evidence of prosecution was declared to be closed, further statements of accused Nos. 1 to 4 were recorded and accused No.1 to 3 have submitted their written-replies, Exh. 132, 133, 134 in their respective further statements. As per the cross-examination of complainant, it is the defence of the accused that four documents which are in dispute bear the signature of complainant and Cash Credit Account was opened within the knowledge and information of the complainant and that complainant has lodged this false case against the accused to get himself absolved from the liability to pay the debt due to the Union Bank of India. It is the case of the accused Nos. 1 to 3 that the Bank has filed one Civil Suit No. 57 of 1988 in the Civil Court at Surendranagar for recovery of an amount of loan due from the partnership firm to the Bank. It is also the case of the accused that complainant has filed one Civil Suit No. 16 of 1988 for dissolution of partnership and also for taking accounts of Partnership Firm and that both suits are pending and therefore to bring a pressure on them, the complainant has filed this false case. After appreciating the evidence on record and after hearing both the parties, the learned Chief Judicial Magistrate came to the conclusion that prosecution has not proved the case against the accused beyond reasonable doubt, and he arrived at a decision that the case against the accused for offences punishable under Sections 467, 468, and 471 of I.P.C. is not proved as per the case advanced by the complainant and by rendering his Judgment Exh. 138 on 31-7-1990, he acquitted all the accused for the offences for which a charge-sheet was framed. Being dissatisfied with and aggrieved against the side order of acquittal under Judgment Exh. 137 dated 31-7-1990, the State of Gujarat has filed this present acquittal appeal.