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Gujarat High Court
Judgename :D.P.Buch
BHIKHABHAI RANCHHODBHAI MAKWANA - Appellant
Versus
STATE - Respondent
CRIMINAL REVISION APPLICATION 517 of 2000
Decided On : 04/16/2001
Criminal Procedure Code, 1973 - Section 397 - Negotiable Instrument Act, 1881 - Section 138 - Petitioner-original complainant has preferred this revision application under section of the Criminal Procedure Code challenging the judgment and acquittal order dated recorded by the learned Addl. Sessions Judge of the City Sessions Court Court No. in Criminal Appeal No. under which the learned Addl. Sessions Judge allowed the said appeal of contesting respondent no. 2 herein and set aside the judgment and conviction order recorded by the learned Metropolitan Magistrate in Criminal Case No. and directed that the fine be refunded to respondent no. 2 herein - Present petitioner had filed criminal case no. against respondent no. 2 herein for offence punishable under section of the Negotiable Instrument Act - After registering the complaint and after hearing the evidence the learned Metropolitan Magistrate found that the second respondent herein was acquitted of offence punishable under Section of the said Act and consequently after hearing him on the point of quantum of punishment the learned Magistrate - Court convicted the second respondent for offence punishable under section of the said act and directed that he shall undergo simple imprisonment for a period of six months and shall pay fine - Learned Magistrate further directed that in case of default in payment of fine the second respondent shall undergo further simple imprisonment for a period of one month - Judgment and conviction order dated the second respondent herein preferred the aforesaid criminal appeal before the said Sessions Court - After hearing the learned Advocates for the parties and after going through the Records and Proceedings, the learned Addl. Sessions Judge - Court allowed the appeal of the second respondent, set aside the judgment and order of the learned Magistrate in criminal case and directed refund of fine paid by the second respondent - Feeling aggrieved by the said judgment and acquittal order passed by the learned Addl. Sessions Judge, the petitioner-original complaint has preferred this Revision Application before this Court. It has been mainly contended here by the petitioner above named that the learned - Sessions Judge has committed serious illegality in holding that the second respondent has not committed any offence - Held, Judgment and acquittal order of a lower court has to be slower in exercise of powers, functions and jurisdiction - Petitioner is also required to show that there was unreasonableness in the appreciation of evidence of the trial court as laid down in the case of State of Gujarat reported in the case reported in GCD - It is well settled that when two views are possible as a matter of judicial caution the High Court would refrain from interfering with the order of acquittal as the trial court had a chance of seeing the witness giving deposition from the witness box. It is also well settled that when the appellate court agrees with the logic of and reasoning of the trial court and confirm the same - It does not require to give detailed and lengthy rulings as said in the case GCD - Again it is well settled that of evidence in Criminal Revision is ordinarily not permitted unless very strong case is made out and it is shown that findings recorded are perverse totally against the evidence on record - That re-appreciation of evidence cannot be done simply because the Court thinks that the lower court has taken an erroneous view in recording a finding - This can be gathered from the case of v. State reported in GLR 1530. Even in the case reported in GLH it has been observed at length that revisional powers are not appellate powers. Such powers can be exercised for giving justice and not for injustice, even if the order sought to be revised is not in confirmity with law - Petitioner has made out strong case as reflected in the judgments and acquittal order recorded by the learned Addl. Sessions Judge. In the case of reported in AIR SC it has been again observed that it is only the glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court that the High Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused - Application is accordingly dismissed.
( 1 ) THE petitioner-original complainant has preferred this revision application under section 397 of the Criminal Procedure Code, 1973 challenging the judgment and acquittal order dated 30. 8. 2000 recorded by the learned Addl. Sessions Judge of the City Sessions Court, Court No. 15, Ahmedabad in Criminal Appeal No. 59/99 under which the learned Addl. Sessions Judge allowed the said appeal of contesting respondent no. 2 herein and set aside the judgment and conviction order recorded by the learned Metropolitan Magistrate in Criminal Case No. 2058/97 and directed that the fine be refunded to respondent no. 2 herein. The present petitioner had filed criminal case no. 2058/97 on 7. 10. 1997 against respondent no. 2 herein for offence punishable under section 138 of the Negotiable Instrument Act, 1881 (for short, the Act) After registering the complaint and after hearing the evidence, the learned Metropolitan Magistrate found that the second respondent herein was acquitted of offence punishable under Section 138 of the said Act and consequently after hearing him on the point of quantum of punishment, the learned Magistrate, court No. 10 convicted the second respondent for offence punishable under section 138 of the said act and directed that he shall undergo simple imprisonment for a period of six months and shall pay fine of Rs. 50,000. 00. The learned Magistrate further directed that in case of default in payment of fine, the second respondent shall undergo further simple imprisonment for a period of one month.
( 2 ) FEELING aggrieved by the said judgment and conviction order dated 13. 7. 1999, the second respondent herein preferred the aforesaid criminal appeal before the said Sessions Court. After hearing the learned Advocates for the parties and after going through the Records and Proceedings, the learned Addl. Sessions Judge, Court no. 15 allowed the appeal of the second respondent, set aside the judgment and order of the learned Magistrate in criminal case no. 2058/97 and directed refund of fine paid by the second respondent. Feeling aggrieved by the said judgment and acquittal order passed by the learned Addl. Sessions Judge, the petitioner-original complaint has preferred this Revision Application before this Court. It has been mainly contended here by the petitioner above named that the learned Addl. Sessions Judge has committed serious illegality in holding that the second respondent has not committed any offence. That the judgment and order of the learned Addl. Sessions Judge are against the evidence on record and the learned Addl. Sessions Judge has not appreciated the object of the Negotiable Instrument Act. That the learned Addl. Sessions Judge has erred in appreciating the evidence on record. That the learned Addl. Sessions Judge has erred in not appreciating the fact that the Banakhat in question was executed by Bhikhabhai Motiram i. e. respondent no. 2 herein and the said cheque was also given by him. That once the cheque was issued and it was returned for want of payment, then the second respondent was responsible and liable for the said dishonour of the said cheque under the provisions of section 138 of the said Act. That the learned Addl. Sessions Judge has failed to appreciate the said aspect of the case. That the learned Addl. Sessions Judge has failed to appreciate the evidence of Jivubhai Jethabhai at Exh. 3 in which there is a mention of hawala to the second respondent and the second respondent is entitled to Rs. 1,07,000. 00, out of which 50,000/- was given to the present petitioner and for the remaining amount the second respondent had given cheque which was returned for non-payment. That the learned Addl. Sessions Judge has committed error in holding that there was no direct transaction between the petitioner and respondent no. 2. That this finding has been recorded by him against the evidence on record. That the learned Addl. Sessions Judge has failed to appreciate the evidence at Exhs
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