High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 181 of 2006

Judgment Reserved on 13

th

April 2016 Date of Judgment 3

rd

May 2016

________________________________________________________

State of Himachal Pradesh ….Appellant

Versus

Baba Suraj Nath son of Shri Mangal Nath

….Respondent

________________________________________________________

Coram

The Hon’ble Mr. Justice P.S. Rana, J.

Whether approved for reporting?

1

Yes.

____________________________________________________________

For the Appellant: Mr. M.L. Chauhan and

Mr.Rupinder Singh Thakur

Additional Advocates

General and Mr.R.K.Sharma

Deputy Advocate General.

For the Respondent: Ms. Uma Manta, Advocate

___________________________________________________________

P.S. Rana, Judge

JUDGMENT Present appeal is filed against the

judgment dated 23.12.2005 passed by learned Judicial

Magistrate Court No.V Shimla in criminal case No. 100/2 of

2003/2002 title State of H.P. vs. Baba Suraj Nath.

1

Whether Reporters of Local Papers may be allowed to see the judgment? Yes.

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Brief facts of the case

2. Complainant Surinder Kumar who was

employed as Junior Assistant in the department of

Tourism had deposited his salary in PNB The Mall Shimla.

It is alleged by prosecution that complainant is unmarried

and complainant met accused Baba Suraj Nath and

disclosed the accused that complainant was suffering

from mental tension etc. upon which accused assured the

complainant to solve all his problems in life and also

assured that he would be promoted in job. It is alleged by

prosecution that accused demanded money from

complainant and complainant had given three cheques to

accused i.e. cheque No. 444247 dated 6.11.2001

amouting to Rs. 21000/- (Rupees twenty one thousand

only), cheque No. 444248 dated 6.11.2001 amouting to

Rs.21000/- (Rupees twenty one thousand only) and

cheque No. 444250 dated 12.11.2001 amouting to

Rs.50000/- (Rupees fifty thousand only). It is alleged by

prosecution that accused defrauded the complainant to

the tune of `92000/- (Rupees ninety two thousand only) in

view of mental condition of complainant. It is alleged by

prosecution that FIR was registered and investigation was

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completed and investigation report under Section 173 of

Cr.P.C. was filed before the competent Court of law.

3. Charge was framed against the accused on

8.7.2003 by learned Trial Court under Section 420 IPC.

Accused did not plead guilty and claimed trial.

4. Prosecution examined nine witnesses in all

and also tendered documentary evidence.

5. Learned Trial Court acquitted the accused

under Section 420 IPC. Feeling aggrieved against the

judgment passed by learned Trial Court State of H.P. filed

present appeal.

6. Court heard learned Additional Advocate

General appearing on behalf of the State and learned

Advocate appearing on behalf of the accused and also

perused the entire record carefully.

7. Following points arise for determination in

present appeal:-

Point No.1

Whether judgment of learned Trial Court is

perverse and based upon non-appreciation of

evidence properly as mentioned in

memorandum of grounds of appeal?

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Point No.2

Final Order.

8. Findings upon Point No.1 with reasons

8.1. PW1 Surinder Kumar has stated that he is

posted as Junior Assistant in Tourism department and his

salary is deposited in PNB The Mall Shimla. He has stated

that his salary is `7000/- (Rupees seven thousand only)

per month. He has stated that in the month of October

2001 accused came in his contact and told him that

accused would get promotion of him and would also solve

all worries of him. He has stated that on one day he was

on leave but by mistake his attendance was recorded in

attendance register. He has stated that he was

suspended. He has stated that he has issued three

cheques in favour of accused amounting to Rs.92000/-

(Rupees ninety two thousand only). He has further stated

that accused has committed cheating with him. He has

stated that thereafter he filed criminal complaint

Ext.PW1/A before police department. He has stated that

police took into possession cheque book vide seizure

memo Ext.PW1/B. He has stated that cheque book is

Ext.PAZ. He identified the accused in Court. He has denied

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suggestion that he used to get perform religious activities

from accused. He has stated that he does not know that

accused has performed religious prayer in Shiv temple for

the complainant. He has denied suggestion that ` 92000/-

(Rupees ninety two thousand only) spent upon

expenditure involved in religious activities. He has denied

suggestion that accused did not commit cheating with

him. He has denied suggestion that accused did not

assure the complainant that complainant would get

promotion in service. He has denied suggestion that he

was not suspended in service. He has stated that he could

not produce any suspension order. He has denied

suggestion that he has handed over the cheque to

accused in presence of family members voluntary.

8.2 PW2 Kishore Kumar has stated that he was

associated in investigation process and `52845/- (Rupees

fifty two thousand eight hundred forty five only) recovered

from possession of accused. He has stated that seizure

memo bears his signatures. He has stated that Surinder

Kumar is his brother and police officials were present at

the spot prior to his arrival. He has stated that when he

reached at the spot then currency was in possession of

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police officials. Again stated that police was taking out the

currency from bag. He has denied suggestion that

religious activities were performed by accused on behalf

of complainant. He has stated that his brother Surinder

Kumar is mentally and physically fit. He has denied

suggestion that false case filed against the accused in

collusion with investigating agency.

8.3 PW3 Ram Swarup Sr. Manager PNB The Mall

Shimla has stated that he is posted as Branch Manager in

PNB The Mall Shimla. He has stated that as per demand of

investigating agency he supplied copy of cheque

No.444248 dated 6.11.2001 to the tune of ` 21000/-

(Rupees twenty one thousand only) in favour of accused

and also supplied copy of cheque No. 444250 dated

12.11.2001 amounting to `50000/- (Rupees fifty thousand

only) and also supplied copy of cheque No. 444247 dated

6.11.2001 amounting to ` 21000/- (Rupees twenty one

thousand only) in favour of Baba Suraj Nath. He has

stated that amount was debited from account No. 44032

which was in the name of Surinder Kumar. He has stated

that copies of cheques are Ext.PW3/A, Ext.PW3/B and

Ext.PW3/C. He has denied suggestion that he has given

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statement in collusion with police officials and Surinder

Kumar.

8.4 PW4 Gulshan has stated that he was posted

as I.O. at P.S. Sadar in the year 2001 and he received ruka

Ext.PW1/A and thereafter he recorded FIR Ext.PW4/A.

8.5 PW5 Arun Kumar has stated that in the year

2007 he was posted as Manager in PNB. He has stated

that three photo copies of cheques were produced which

were took into possession by police vide seizure memo.

8.6 PW6 Inspector Jagdish has stated that he is

posted as SHO in the year 2000 and further stated that

after investigation he filed challan before the competent

Court of law.

8.7 PW7 Lal Chand has stated that he is posted as

Agent in LIC and associated in investigation of case. He

has stated that accused was searched in his presence and

`52845/- (Rupees fifty two thousand eight hundred forty

five only) recovered from him by police. He has stated

that seizure memo Ext.PW2/A was prepared which was

signed by him as a marginal witness. He has stated that

he identified the accused in Court.

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8.8 PW8 Bidhi Singh has stated that in the year

2001 he was posted as CIA Incharge Shimla. He has

stated that on 12.11.2001 statement of complainant

Surinder Kumar recorded under Section 154 Cr.P.C. which

is Ext.PW1/A. He has stated that thereafter FIR No. 314 of

2001 was registered under Section 420 IPC. He has stated

that investigation was conducted and site plan Ext.PW8/A

was prepared. He has stated that accused has obtained

the cheques from complainant by way of cheating. He has

stated that ` 52845/- (Rupees fifty two thousand eight

hundred forty five only) recovered from possession of

accused. He has stated in cross examination that

tampering is committed in case property of Rs.52845/-

(Rupees fifty two thousand eight hundred forty five only)

and only Rs.395/- (Rupees three hundred ninety five only)

shown in Court. He has stated that after completion of

investigation file was handed over to SHO.

8.9 PW9 Ramesh has stated he was associated in

investigation of case and further stated that bag of

accused was searched on 12.11.2001. He has stated that

`52845/- (Rupees fifty two thousand eight hundred forty

five only) was found from possession of accused and

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seizure memo was prepared which was signed by him as

marginal witness. He has stated that he is brother of

complainant and complainan t Surinder Kumar is not

married. He has stated that Surinder Kumar is posted as

Assistant in tourism department. He has stated that

complainant is mentally sound and further stated that

accused and complainant used to meet each other. He

has stated that when he reached in police station at that

time seizure process was already conducted by police.

9. Following documentaries evidence adduced

by the prosecution. (1) Ext.PW1/A is statement of Surinder

Kumar complainant recorded under Section 154 Cr.P.C.

(2) Ext.PW4/A is FIR No. 314 of 2001 dated 12.11.2001

registered under Section 420 IPC. (3) Ext.PW8/A is site

plan. (4) Ext.PW2/A is seizure memo of recovery of

currency notes to the tune of ` 52845/- (Rupees fifty two

thousand eight hundred forty five only) along with cheque

No. 444252. (5) Ext.PW2/B is seizure memo of articles

recovered from accused. (6) Ext.PW1/B is seizure memo

of cheque book issued from PNB The Mall Shimla. (7)

Ext.PW5/A is seizure memo of documents i.e. photocopy

of cheque amounting to ` 50000/- (Rupees fifty thousand

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only). (8) Ext.PAR is seal impression upon plain cloth. (9)

Ext.PAZ is cheque book. (10) Ext.PB is cheque amounting

to ` 50000/- (Rupees fifty thousand only) issued in favour

of accused which was later on cancelled. (11) Ext.PW3/A is

copy of cheque amounting to ` 21000/- (Rupees twenty

one thousand only) issued in favour of accused. (12)

Ext.PW3/B is copy of cheque amounting to ` 50000/-

(Rupees fifty thousand only) issued in favour of self. (13)

Ext.PW3/C is copy of cheque amounting to ` 21000/-

(Rupees twenty one thousand only) issued in favour of

accused. (14) Ext.PW3/E is statement of account of

Suirinder Kumar. (15) Ext.PXZ is application filed to Bank

Manager PNB Branch The Mall Shimla by Incharge CIA

Staff Shimla for supply of copy of cheques.

10. Submission of learned Additional Advocate

General appearing on behalf of State that learned Trial

Court did not properly appreciate the testimony of PW1

complainant is rejected being devoid of any force for the

reasons hereinafter mentio ned. Court has carefully

perused testimony of PW1 complainant namely Surinder

Kumar. PW1 Surinder Kumar has specifically stated when

he appeared in witness box that his salary was to the tune

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of `7000/- (Rupees seven thousand only) per month and

he came into contact with accused in the month of

October 2001. PW1 has stated in positive manner that

accused told PW1 that he would get complainant

promoted in service and would also remove all worries of

complainant. PW1 has stated in positive manner that

accused demanded consideration amount and he paid an

amount to the tune of ` 92000/- (Rupees ninety two

thousand only) to complainant by way of three cheques

issued upon different dates i.e. cheque to the tune of `

21000/- (Rupees twenty one thousand only) dated

6.11.2001, cheque to the tune of ` 21000/- (Rupees

twenty one thousand only) dated 6.11.2001 and cheque

to the tune of `50000/- (Rupees fifty thousand only) dated

12.11.2001. Court has perused all cheques. PW1 has

admitted in positive manner that cheque to the tune of

`50000/- (Rupees fifty thousand only) was not encashed

due to some defect. PW1 has admitted that he believes in

God and also believes in prayer. PW1 has admitted in his

testimony that he had given all cheques to the accused on

pretext that he would be promoted in service and on the

pretext that all his worries would be removed. It is proved

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on record that when in the year 2001 cheques were

issued by PW1 to accused at that time PW1 complainant

was major and complainant was in sound state of mind.

There is no documentary evidence on record in order to

prove that complainant was of unsound mind when

complainant issued three cheques in the year 2001 in

favour of accused. No medical certificate placed on record

that complainant was of unsound mind when complainant

issued three cheques in favour of accused in the year

2001. PW1 did not state when appeared in witness box

that accused was dishonest abinitio when cheques were

issued in favour of accused. It is well settled law that for

offence of cheating there must be deception intention and

intention of accused should be dishonest at the time of

making promise. It is well settled law that mere fact that

accused did not abide commitment would not fasten

accused with criminal liability.

See AIR 1974 SC 301 title Hari

Parsad vs. Bishun Kumar. See AIR 1973 SC 326 title State of

Kerala vs. A.P. Pillai

. In view of the fact that PW1 did not

state when he appeared in witness box that intention of

accused was dishonest abinitio Court is of the opinion that

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it is not expedient in the ends of justice to convict the

accused under Section 420 IPC in present case.

11. Submission of learned Additional Advocate

General appearing on behalf of the State that on the basis

of statement of PW2 accused be convicted is rejected

being devoid of any force for the reasons hereinafter

mentioned. PW2 Kishore Kumar is witness of seizure

memo of articles. PW2 is younger brother of PW1

complainant namely Surinder Kumar. PW2 has stated in

positive manner when he appeared in witness box that

when he reached at the spot then currency was already in

hands of police officials. PW2 has specifically stated that

he does not know about construction of Shiv temple at

Mathura. PW2 did not state when he appeared in witness

box that accused promised for promotion of complainant

Surinder Kumar in service and PW2 also did not state that

accused promised to remove all worries of complainant

Surinder Kumar. PW2 has stated in positive manner that

PW1 Surinder Kumar is mentally and physically healthy.

Court is of the opinion that testimony of PW2 is not

sufficient to convict the accused under Section 420 IPC in

present case because PW2 did not state that intention of

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accused was dishonest from ab-initio at the time of

making promise to complainant namely PW1 Surinder

Kumar.

12. Court has also perused testimony of PW3 Ram

Swaroop carefully. PW3 has simply proved Ext.PW3/A,

Ext.PW3/B and Ext.PW3/C i.e. cheques. PW3 did not state

when he appeared in witness box that intention of

accused was dishonest from ab-initio at the time of

making promise to complainant. It is held that it is not

expedient in the ends of justice to convict the accused on

testimony of PW3 only.

13. Court has also perused the testimony of PW5

Arun Kumar carefully. PW5 is Manager and he has proved

issuance of cheques Ext.PW3/A, Ext.PW3/B and

Ext.PW3/C. PW5 did not state when he appeared in

witness box that intention of accused was dishonest ab-

initio at the time of making promise to complainant. It is

held that testimony of PW5 is not sufficient to convict the

accused.

14. Submission of learned Additional Advocate

General appearing on behalf of State that in view of

testimony of PW7 accused be convicted is rejected being

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devoid of any force for th e reasons to be recorded

hereinafter. Court has perused the testimony of PW7 Lal

Chand carefully. PW7 is recovery witness of ` 52845/-

(Rupees fifty two thousand eight hundred forty five only).

As per seizure memo currency was recovered in the

following manner. (i) 500 x 18 = 9000 (Rupees nine

thousand only). (ii) Three bundles of Rs.100/- each i.e.

`30000/- (Rupees thirty thousand only). (iii) 100 x 120 =

12000 (Rupees twelve thousand only). (iv) 50x29=1450/-

(Rupees one thousand four hundred fifty only). (v)

20x2=40 (Rupees forty only). (vi) 10x35=350/- (Rupees

three hundred fifty only). (vi) One note of ` 5/-. Total

amount was ` 52845/- (Rupees fifty two thousand eight

hundred forty five only). PW7 when appeared in witness

box has specifically stated in positive manner that only

currency notes of rupees ten were shown to him. In view

of the fact that PW7 has stated in cross examination that

only currency notes of rupees ten were shown to him and

currency notes of rupees 500, 50, 20 and 5 were not

shown to him relating to case property Court is of the

opinion that it is not expedient in the ends of justice to

convict the accused.

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15. Submission of learned Additional Advocate

General appearing on behalf of State that as per

testimony of PW8 accused be convicted is also rejected

being devoid of any force for the reasons hereinafter

mentioned. Court has perused testimony of PW8 i.e. Bidhi

Singh Inspector Vigilance North Zone Dharamshala.

Seizure memo of recovery of ` 52845/- (Rupees fifty two

thousand eight hundred forty five only) prepared by Bidhi

Singh PW8. PW8 has specifically stated in Court that from

parcel Ext.PA only currency of ` 395/- (Rupees three

hundred ninety five only) were shown to him in Court

during trial of case. PW8 has specifically stated that he

does not know about remaining currency and PW8 has

further stated that officials of police station could disclose

whereabouts of remaining currency. PW8 has specifically

stated in Court that tampering is committed relating to

case property of Rs.52845/- (Rupees fifty two thousand

eight hundred forty five only) and only currency to the

tune of Rs.395/- (Rupees three hundred ninety five only)

shown in Court. Court is of the opinion that in view of

above stated facts it is not expedient in the ends of justice

to convict the accused.

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16. Submission of learned Additional Advocate

General appearing on behalf of State that as per

testimony of PW9 accused be convicted is also rejected

being devoid of any force for the reasons hereinafter

mentioned. Court has perused testimony of PW9 Ramesh.

PW9 is real brother of complainant Surinder Kumar. PW9

has specifically stated in cross examination that when he

reached in police station then all articles were already

recovered by investigating agency. PW9 has stated that

currency recovered from accused was not shown to him in

Court. In view of the fact that entire currency notes were

not shown to the witness in Court it is not expedient in the

ends of justice to convict the accused in present case.

17. Submission of learned Additional Advocate

General appearing on behalf of State that there is no

enmity of prosecution witnesses with accused and on this

ground accused be convicted is rejected being devoid of

any force for the reasons hereinafter mentioned. It is well

settled law that suspicion however strong cannot take

place of legal proof.

See:(2005) 9 SCC 765 title Anjlus

Dungdung Vs. State of Jharkhand. See:

AIR 1979 SC 1382 title

State (Delhi Administration) Vs. Gulzarilal Tandon.

It was held

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in case reported in

2010 (3) Recent Criminal Report (SC) 549

title Nanhar Vs. State of Haryana

that prosecution must stand

or fall on its own leg and it cannot derive any strength

from the weakness of the defence. It is well settled law

that moral conviction however strong or genuine cannot

amount to legal conviction under law.

See AIR 1979 SC 1382

title State vs. Gulzari Lal. See AIR 1983 SC 906 title Bhagdomal

vs. State of Gujarat.

18. It is well settled principle of law that vested

right accrued in favour of the accused with the judgment

of acquittal by learned Trial Court.

See (2013) 2 SCC 89 title

Mookkiah and another Vs. State. See 2011 (11) SCC 666 title

State of Rajashthan Vs. Talevar and another. See (2012)4 SCC

722 title Govinda vs. State. See (2012)1 SCC 602 title State of

Rajasthan vs. Shera Ram.

It is well settled principle of law (i)

That appellate Court should not ordinarily set aside a

judgment of acquittal in a case where two views are

possible though the view of the appellate Court may be

more probable. (ii) That while dealing with a judgment of

acquittal appellate Court must consider entire evidence

on record so as to arrive at a finding as to whether views

of learned trial Court are perverse or otherwise

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unsustainable (iii) That appellate Court is entitled to

consider whether in arriving at a finding of fact, learned

trial Court failed to take into consideration any admissible

fact (iv) That learned trial court took into consideration

evidence contrary to law.

See AIR 1974 SC 2165 title Balak

Ram and another Vs. State of UP. See (2002) 3 SCC 57 title

Allarakha K. Mansuri Vs. State of Gujarat. See (2003) 1 SCC 398

title Raghunath Vs. State of Haryana. See AIR 2007 SC 3075 title

State of U.P Vs. Ram Veer Singh and others. See (2009) 10

SCC 206 title Arulvelu and another Vs. State. See (2009) 16

SCC 98 title Perla Somasekhara Reddy and others Vs. State of

A.P. See (2010) 2 SCC 445 title Ram Singh @ Chhaju Vs. State

of Himachal Pradesh.

It is held that liability of accused is

only civil liability and dispute inter se complainant and

accused is purely of civil nature. It is held that there is no

positive cogent and reliable evidence on record that

accused has received the amount with dishonest intention

from ab-initio. Point No.1 is answered in negative.

Point No. 2(Final Order)

19. In view of findings upon point No.1 above

appeal is dismissed. Benefit of doubt is given to accused.

File of learned Trial Court along with certified copy of

judgment be sent back forthwith. Criminal appeal is

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disposed of. All pending miscellaneous application(s) also

stands disposed of.

(P.S.Rana)

May 03,2016(ms) Judge.

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