STATE OF GUJARAT Vs. NATWARLAL AMBALAL CHAUHAN

JUDGEMENT

(1.) Heard learned advocates for the parties. The appellant State of Gujarat has preferred this appeal under section 378 of Code of Criminal Procedure , challenging the order of acquittal dated 29/3/2004 passed by learned JMFC, Balasinor in Criminal Case No. 363 of 2002 acquitting the accused respondent of the charge of committing offence punishable under section 408 of Indian Penal Code.

(2.) Facts in brief leading to filing of this appeal deserves to be set out as under. A complaint came to be lodged with concerned police station on 29/11/2001, the FIR being C.R. No: I-138/2001 against the present respondent / original accused for misappropriating Rs.1200/- which he received from one Ishaq Abdulrehman, Balasinor on behalf of Balasinor Municipality towards rent for shop no.16. Complaint was made in writing addressed to Police Sub Inspector, Balasinor, which came to be registered as FIR being CR No. I-363 of 2001 as stated herein above. After investigation, report came to be filed containing allegation that the accused while discharging his duties as Ward Inspector was to collect rent of shop no.16, and he received Rs.1200/- on 31/3/1999 and made receipt but thereafter cancelled the receipt and did not credit the amount in the official record and thus committed offence under section 408 of I.P. Code. The competent court on 2/9/2002 framed charge at exh. 4 on same line and after recording plea of not guilty, commenced the trial. In the trial prosecution examined as many as 7 witnesses and documentary evidence in form of receipt, and the affidavit of the accused made before the notary, came to the conclusion that the prosecution could not prove its case beyond reasonable doubt so as to bring home guilt on the part of accused respondent herein above and hence acquitted of the charge of committing offence punishable under section 408 I.P. Code vide order dated 29/3/2004 in Criminal case No. 363 of 2002 which is impugned in the present appeal under section 378 of Cr.P.C.

(3.) Ms. Shah, learned APP submits that the court has taken into consideration testimony of the witness and come to the conclusion that the prosecution failed in establishing its case against the accused beyond doubt. Learned APP could not point out as to how the findings recorded by the court is erroneous or incorrect. The memo of appeal also does not contain any specific indicative of trial court's error in recording evidence nor is it because of the appellant that the trial court has incorrectly recorded the evidence. In view of this and especially when the appellant has not established that the order of acquittal has resulted into miscarriage of justice, this Court needs to examine the order impugned in view of the limited jurisdiction conferred upon it under section 378 of Cr.P.C.