STATE OF MAHARASHTRA Vs. GURUDAS PUTU NAIK

JUDGEMENT

(1.) THIS is a State appeal directed against the judgment and order dated 15th September 1992 passed by the learned Judicial Magistrate, First Class, Ponda, Goa in Criminal Case No. 110/s/91 on the file of Judicial Magistrate, First Class, Ponda acquitting the respondent nos. 1 to 4 in that criminal case of the charge for offence punishable under section 379 read with section 34 of the Indian Penal Code. A first information report dated 30th September, 1991 come to be lodged with P. S. I. , Ponda Police Station by William Farnandes, (P. W. 4), an employee of Cobra Detective and Security Service, which were employed by the Hindusthan Petroleum for guarding their property at Kundaim Industrial Estate. P. S. I. Uday Parab, (P. W. 10), took over the investigations on the basis of suspicion expressed by the complainant himself, arrested accused no. 4 (who is not a party to this proceeding ). The P. S. I. claimed that original accused no. 4 had given him certain information about the storage of cylinders in the premises belonging to present respondent nos. 1 and 3. However, no Panchnama under section 27 was drawn. A raid was organised and 22 gas cylinders were seized. The respondent nos. 1 to 2 were then arrested. The respondent no. 3 obtained anticipatory bail from the High Court and was later on arrested and released. From some source, an information was allegedly received by P. S. I. Uday Parab that respondent no. 4 was selling refilled cylinders. Therefore, accused no. 5 was also arrested and 41 cylinders were seized from his custody. Finally, all the respondents and original accused no. 4 were charge-sheeted for offence punishable under section 379 read with section 34 I. P. C.

(2.) THE learned Magistrate, who appreciated the evidence at length in his judgment, found accused no. 4 guilty of the offence of theft and convicted him of the offence punishable under section 379 LP. C. and sentenced him to suffer R. I. for one year. Accused no. 4 has by this time, suffered the sentence because, he was given set off for the period from 1. 10. 1991, which was the date of his arrest. No appeal was preferred by the State for enhancement of the sentence awarded to him in the matter, though the property stolen was alleged to be worth Rs. 93,000/ -.

(3.) THE respondent no. 4 admitted possession of 41 cylinders and contended that as the practice of the agents of Hindusthan Petroleum supplying the cylinders individually to the customers was stopped, he was carrying on a service agency in which he used to get the cards and empty cylinders from the customers and have them filled up for being re-supplied to the respective customers, as against an amount charged by him for the said service. In support of this, the respondent no. 4 examined several witnesses and they were believed by the learned Magistrate. We were told at the Bar by Mr. Naik, that Hindusthan Petroleum had thereafter filed a Civil Suit also in the matter and in the said suit, the-order of return of the 41 cylinders to respondent no. 4 has not been disturbed by the Civil Court. Criminal Revision Application No. 29/9 2 and Criminal Misc. Application No. 307/92 against the order of the Magistrate filed by Hindusthan Petroleum, in connection with the order of return of cylinders to respondent no. 4 also, came to be dismissed on 29th March, 1993. Mr. Naik, tendered on record a xerox copy of the aforesaid judgment. Thus, it appears that both the Civil Court as well as the Sessionst Court have accepted the finding recorded by the Magistrate as also the order passed by him for the return of cylinders to respondent no. 4.