STATE OF GUJARAT Vs. SALIMMIYA MIYASAB KURESHI

JUDGEMENT

(1.) THE State of Gujarat preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 [for short 'the Code'] challenging the validity and legality of the impugned judgment and order passed by the learned Metropolitan Magistrate, Court No. 12, Ahmedabad [for short 'the learned Magistrate'] on 2/9/1998 in Criminal Case No. 328 of 1996. By virtue of the impugned judgment and order the learned Magistrate was pleased to acquit both the respondents accused for the offence punishable under section 409 read with section 114 of the Indian Penal Code.

(2.) THE facts giving rise to this case, in short, are as under : -

(3.) ON behalf of the appellant State, Ld. APP Mr. Mengde submitted that the judgment and order of acquittal passed by the learned Magistrate is contrary to law, evidence on record and principles of justice. That the learned Magistrate erred in not properly appreciating the oral and documentary evidence adduced by the prosecution. That the prosecution examined important witness like the complainant Mr. Patel and concerned officers of the Municipal Corporation to prove that both the accused persons misappropriated the goods belonging to the Corporation, which were entrusted to them for transporting to the store situated at Gulbai Tekra and thus the bare reading of the oral evidence proves beyond reasonable doubt the case of the prosecution. The case is supported by documentary evidence like gate pass, etc. That the learned Magistrate placed much reliance upon a fact that the FIR was lodged after the lapse of 9 days. In fact in the FIR itself the Additional Chief Engineer Mr. Patel stated that as soon as he received telephone call regarding theft, he started inquiry and during the course of inquiry, it was revealed that both the accused had misappropriated the goods belonging to the Corporation. That the time was consumed to undergo such office procedure and, therefore, this can never be a ground to acquit the accused from the serious charge of misappropriation. Therefore, it was submitted that appeal be allowed and impugned judgment and order passed by the learned Magistrate be set aside and both the respondents accused be punished for the offence punishable under section 409 read with section 114 of the Indian Penal Code.