MAGANBHAI S MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal has been filed by the appellant under Section 374 of the Criminal Procedure Code, against the judgment and order dated 30.12.1996 passed by learned Special Judge, Ahmedabad City, in Special Case No.7 of 1987 whereby the appellantaccused was convicted for the offence under Sections 120 -B read with Sections 420, 467, 468 and 471 of Indian Penal Code ("IPC" for short) and sentenced to undergo simple imprisonment for one year and pay fine of Rs.500/ - and in default, simple imprisonment for two months was imposed.

(2.) THE case of the prosecution in short is that Somabhai Maghabhai Parmar had applied for loan to purchase transport vehicle under self employment scheme on 13.9.1984 in the Bank of Baroda, Asarwa Branch, Ahmedabad. The guarantors were Shri Vasantbhai Jadav and Shri M.A.Solanki. The document for guarantee, Exh.65 was executed on 25.9.1984 and the loan amount of Rs.69,000/ - was sanctioned by the Branch Manager. Necessary documents like (i) Irrevocable Power of Attorney, duly signed by the borrower Shri Somabhai Maghabhai Parmar before the Executive Magistrate, Metropolitan Area, Ahmedabad on 25 -9 -1984 at Ex.66, (ii) the Agreement Form for paying the dues by installments duly signed by Shri Somabhai Maghabhai and executed by the Branch Manager, Asarwa Branch, Ahmedabad at Ex. 67; (iii) the Letter of Hypothecation of Vehicles duly signed by the borrower Shri Somabhai Maghabhai Parmar at Ex. 68; (iv) the document showing repayment duly signed by Shri Somabhai Maghabhai Parmar at Ex. 69; Form of T.T.O. duly signed by Shri Somabhai Maghabhai Parmar at Ex. 79; Promissory Note duly signed on revenue stamps at Ex. 71, were executed. It is also the prosecution case that the Bank of Baroda had issued notice by Registered Post on 10 -2 -86 to the Borrower and copies were sent to the guarantors for the outstanding dues of Rs.14,000/ - at Ex.61; another notice was also issued on 28 -5 -1986 and 24 -7 -1986 at Ex.63. On these allegations, an offence against the accused persons was also registered before police.

(3.) IT is submitted by Ms.Patel, learned advocate for the appellant that the judgment of the learned trial Judge is quite erroneous on facts as well as on law. She also submitted that the learned trial Judge has not appreciated the evidence on record according to the well settled principle of Criminal Jurisprudence. She further submitted that the Court below has failed to appreciate that there were many glaring and serious infirmities in the case of prosecution which have been very lightly brushed aside by the learned Judge which has caused failure of justice. She submitted that learned Special Judge has committed an error in not appreciating the material part of the evidence of Shri M.A. Solanki, PW No.4, Ex. 78, who in his chief examination on page 2, in terms admitted that the instructions were given by the I.O. Shri Sharma to give the specimen signature in the like manner in the document at Ex. 65 which is the form of Guarantee. In the cross examination the suggestion was denied about the letter at Ex.79, but the contents of the said letter clearly indicates that the complete matter was the brain work of the bank officer and no layman can draft such a letter. The prosecution witness Shri Sharma, PW No.15, Ex.120 in para 4 of his cross examination in clear terms admitted that the documents seized were to be sent to GEQD for comparison and opinion. However, he did not send the application of Shri Somabhai Maghabhai Parmar who was debtor to the bank at Ex.124 having his photograph. However, he is not examined to suppress the truth as to who were the guarantors. The relevant bank loan documents at Ex.66 to Ex. 70 which contains eighteen signatures were not sent to GEQD which would have been compared with the signature of guarantors.