STATE OF GUJARAT Vs. MOHANBHAI M CHAVDA

JUDGEMENT

(1.) This appeal by the State of Gujarat is directed against the impugned judgment and order, dated 16-11-1989, rendered in Criminal Case No. 788 of 1985, by Mr. N.L. Patel, the learned Chief Judicial Magistrate, Nadiad, wherein the two respondents, viz., Mohanbhai M. Chavda and Rameshbhai Hatibhai Patel, who came to be prosecuted for the alleged offences punishable under Section 408,420,467,468, 471,477-A and 34 of the Indian Penal Code, were ordered to be acquitted on the short ground of prosecution failing to examine the witnesses.

(2.) According to the prosecution, respondent No. 1 was Accountant- cum-Cashier, while the respondent No. 2 was the Assistant Manager of Anand Taluka Kharid Vechan Sangh who are alleged to have misappropriated the amount of Rs. 2,75,018/- (Permanent misappropriation) and Rs. 2,55,448.56 ps. (temporary misappropriation) during the period 1964-1976 by tampering and falsely fabricating the record of Sangh, etc. On the basis of these facts, one Chandulal Ambalal Patel filed complaint before the Anand Town Police Station against both the respondents wherein after the investigation was over, the respondents came to be charge-sheeted on 24-2-82 for the alleged offences under Sections 408,420,467,.468,471,477 read with Section 34 of the IPC. to stand trial before the learned Magistrate at Anand. Thereafter the case was transferred to the Court of the learned Chief Judicial Magistrate, Nadiad. It also further appears that on the charge [Exh. 6] being framed, the respondents pleaded not guilty and claimed to be tried. Thereafter for whatever reasons, the prosecution did not examine any witnesses and as a result, the learned Magistrate for want of evidence, acquitted the accused, as stated above in para-1 of the judgment, giving rise to the present appeal.

(3.) Mr. K.P. Raval, learned APP while challenging the impugned order of acquittal submitted that the same was patently illegal and erroneous in as much as this being a warrant triable case because once the charge was framed and accused pleaded not guilty, it was not open to the learned Magistrate to acquit the accused and thereby lightly dispose of the matter, as has been done in the instant case. Mr. Raval further submitted that the offence alleged against both the respondents were quite grave and serious wherein huge amount of Anand Taluka Kharid Vechan Sangh came to be misappropriated. Mr. Raval further submitted that it is quite true that the prosecution should have taken enough care to examine the witnesses and to that extent, the prosecution agency can certainly be blamed, but that does not mean that in such a grave and serious case, the learned Magistrate should also have abondoned his duty by not securing the presence of the witnesses by issuing warrants, and if necessary non-bailable warrants. Mr. Raval submitted that this could and ought to have been done by the learned Magistrate and still surprisingly, finding fault with the prosecution agency, the learned Magistrate also did not discharge his duty. This indeed was both illegal and unfortunate and has resulted into the serious miscarriage of justice. Mr. Raval in support of this submission has relied upon the following four decisions of this Court. They are: In State of Gujarat vs. Nagin Amara Vasava [supra], this Court in para-5 has observed as under :- (1) State of Gujarat vs. Nagin Amara Vasava & others. 1982 (l)GLR, page 661. (2) State of Gujarat vs. Butasingh 1990 (l)GLR, Page 26. (3) State of Gujarat vs. Gulamnabi Alias Fakir Mohmad & Ann, 1990 (l)GLR page 60. (4) State of Gujarat vs. Sypoi Alambhai Jamalbhai, 1990 (l)GLR page 122.