STATE OF GUJARAT Vs. YOGENDRAKUMAR B SETALVAD

JUDGEMENT

(1.) This group of six Appeals by the State of Gujarat is directed against the impugned judgments and orders dated 27-9-1984, rendered in Criminal Case No. 1489 of 1979 and Five others by Mr. A.R. Bhau, the learned Metropolitan Magistrate, Court No. 11, Ahmedabad, wherein the two respondents, viz., Yogendiakumar Bhaskerrao Setalvad and his brother Jatin Bhaskerrao Setalvad, who came to be tried for the alleged offences punishable under Sections 408, 467, 477-A and 114 of I.P.C. were at the end of trial ordered to be acquitted on the Sole ground that despite the opportunities given to the prosecution, it failed to examine any witness.

(2.) Few relevant facts The prosecution case in brief is to the effect that Respondent Nos. 1 & 2 are the real brothers. Respondent No.l was serving as an Agent in Khanpur Branch of Ahmedabad People's Co-operative Bank Limited during the relevant period i.e., from December, 1970 to March, 1978. Respondent No.2 opened an account in the said Bank Branch in the name of 'S.R. Construction'. It is alleged by the prosecution that Respondent No.1 by misusing his position as an agent, through the respondent No. 2 had not deposited any amount in the bank, he prepared false vouchers and kept the same in the bank record and thereby illegally credited various amounts in the account of S.R. Construction and thereby allowed withdrawal of the same. It is with this modus-operandi that both the respondents are alleged to have conspired with each other and committed misappropriation of the bank money to the tune of Rs. 4,81,000/-. Ultimately, on the basis of these allegations, the Bank Officer Mr. Shantilal Ambalal Shah filed a Criminal complaint for the alleged offence punishable under sections 408,467, 477-A and 114 of IPC before the Crime Branch, Ahmedabad against both the respondents wherein after investigation was over, six different chargesheets were submitted in the Court of learned Metropolitan Magistrate, Ahmedabad. Accordingly on 12-7-1979, the learned Magistrate framed six separate charges and on recording the plea, both the respondents pleaded not guilty and claimed to be tried. It further appears from the record that all these cases went on being adjourned from time to time without recording any evidence and ultimately on 27-9-1984, that is to say after the period of five years, the learned Magistrate quite care-freely acquitted the respondents on the following grounds :-

(3.) Mr. K.P. Raval, the learned APP appearing for the appellant State while challenging the impugned judgments and orders of acquittal submitted that the same are ex-facie illegal and have resulted into serious failure of justice. The learned APP further submitted that Respondent No. 1 was an agent of the Bank and it was he who having conspired with his brother [respondent no.2] committed serious offences where the huge amount of Rs. 4,81,000/- came to be misappropriated. Not only that but in order to cover the said mis-appropriation, the respondent no.l also forged and fabricated bank documents. The learned APP further submitted that thus having regard to the gravity and seriousness of the offences once the charge was already framed, the learned Magistrate should not have lightly acquitted the accused on the sole ground that prosecution has not examined any witness. The learned APP quite fairly admitted that much can certainly be said against the prosecution for not examining the witnesses before the court during the span of five years and that it was not his effort to defend the indefensible lapse on the part of the prosecution in not examining the witnesses. The teamed APP further submitted that the question involved is not merely whether prosecuting agency has committed any lapse or not if prosecuting agency has committed any lapse, that is the issue which has to be taken note of by the concerned higher ups. But merely because the prosecuting agency had committed some lapse that cannot permit the Court also to commit same mistake knowingly. The learned APP submitted that having regard to the gravity and seriousness of the offence, the learned Magistrate should not have felt himself helpless in issuing warrants against the prosecution witnesses who were not coming forward to give evidence before the Court for whatsoever reasons. Mr. Raval in support of his submission as to under what circumstances, the trial dragged on and on for five long years without examining any witness, has submitted a chart containing the Statement of particulars showing the factors which delayed the trial, the same reads as under:- <FRM>JUDGEMENT_430_GCD2_1993Html1.htm</FRM>