STATE OF GUJARAT Vs. AMICHANDBHAI M ATHAWAN

JUDGEMENT

(1.) The judgment and order of acquittal passed by the learned Chief Judicial Magistrate at Palanpur on 19th July 1993 in Criminal Case No. 3987 of 1986 is under challenge in this appeal by leave of this court under Sec. 378(1) of the Code of Criminal Procedure, 1973 (the CrPC for brief). Thereby the learned trial Magistrate acquitted the respondent-accused of the offences punishable under Secs. 408, 467, 468, 471 and 477-A of the Indian Penal Code, 1860 (the IPC for brief).

(2.) The facts giving rise to this appeal move in a narrow compass. The respondent-accused was the secretary of one co-operative society in the name and style of Banaskantha District Panchayat Workers Loan and Consumer Co-operative Society Ltd. (the Society for convenience) at the relevant time. It is the case of the prosecution that he credited only Rs. 1000/- in the books of accounts on 16th August 1977 in the name of Ganeshbhai Becharbhai though the latter deposited Rs. 5000/- on that day. It is further the case of the prosecution that he debited an amount of Rs. 34000/- in the name of Natwarlal Nandlal Raval on 30th June 1982 towards repayment of the latter's fixed deposit though it was not actually paid. It is the prosecution case that the respondent-accused thus misappropriated Rs. 38000/-. It is also the case of the prosecution that, by one Resolution passed in the meeting held on 26th September 1980, the respondent accused got sanctioned in his name the total loan of Rs. 140000/- and got it from the Society though it had no surplus funds at that time and it obtained funds by obtaining deposits from its members or other people. The case of the prosecution thus is that the respondent accused in all misappropriated the funds of the Society to the tune of Rs. 178000/-. It appears that the matter came to the notice of the Assistant District Registrar of Co-operative Societies. He got one Jethalal Khodidas Raval appointed as Government Auditor for auditing the accounts of the Society from 1st July 1977 to 30th June 1983. A copy of the order in that regard passed by the Assistant District Registrar on 1st June 1984 is at Exh. 28 on the record of the case. The aforesaid irregularities were pointed out by the Government Auditor in his audit report. The audit report is at Exh. 34 on the record of the case. Thereupon, the Assistant District Registrar by his order passed on 22nd November 1985 sanctioned prosecution against the respondent accused for the offences punishable under Sees. 406, 467, 468, 471 and 477-A of the IPC. Its copy is at Exh. 37 on the record of the case. Thereupon, the necessary complaint was filed in the City Police Station at Palanpur on 23rd November 1985. It is at Exh. 38 on the record of the case. On conclusion of the investigation, the necessary chargesheet was submitted in the court of the Chief Judicial Magistrate of Banaskantha at Palanpur on 27th May 1986 charging the respondent- accused with the aforesaid offences. It came to be registered as Criminal Case No. 3987 of 1986. The charge against the accused was framed on 16th February 1989. It is at Exh. 9 on the record of the case. He did not plead guilty to the charges. He was thereupon tried. After recording the prosecution evidence and after recording the further statement of the respondent-accused under Sec. 313 of the CrPC and after hearing arguments, by his judgment and order passed on 19th July 1983 in Criminal Case No. 3987 of 1986, the learned Chief Judicial Magistrate acquitted the respondent - accused of the offences with which he was charged. That aggrieved the prosecution agency. It has therefore invoked the appellate jurisdiction of this court under Sec. 378(1) of the CrPC after obtaining its leave for questioning the correctness of the aforesaid judgment and order of acquittal passed by the learned trial Magistrate.

(3.) Learned Additional Public Prosecutor Shri Mehta for the appellant-State has taken me through the entire evidence on record in support of his submission that the learned trial Magistrate was in error in coming to the conclusion that the prosecution did not prove its case against the respondent - accused beyond any reasonable doubt. Learned Additional Public Prosecutor Shri Mehta has submitted that the material on record clearly points the finger of guilt against the respondent-accused and the prosecution can be said to have brought the guilt home to the respondent-accused beyond any reasonable doubt. As against this, learned Advocate Shri Vin for the respondent-accused has submitted that the learned trial Magistrate has carefully examined and appreciated the evidence on record and has come to the conclusion that the prosecution has not been able to prove its case at trial beyond any reasonable doubt. According to well settled principles of law, runs the submission of learned Advocate Shri Vin for the respondent-accused, the view taken by the learned trial Magistrate is a possible view and it calls for no interference by this court in this appeal against the judgment and order of acquittal.