R/CR.RA/313/2021 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL REVISION APPLICATION NO. 313 of 2021 FOR APPROVAL AND SIGNATURE: HONOURABLE MS. JUSTICE GITA GOPI Sd/- ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? No ========================================================== MAHESHKUMAR HARILAL RAJPARA Versus STATE OF GUJARAT ========================================================== Appearance: MR SK PATEL(654) for the Applicant(s) No. 1 MS.MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS. JUSTICE GITA GOPI Date : 19/04/2021 ORAL JUDGMENT 1. Rule. Ms.Monali Bhatt, learned Additional Public Prosecutor wavies service of notice of rule on behalf of respondent – State. 2. The Criminal Revision is preferred against the Judgment R/CR.RA/313/2021 JUDGMENT and Order dated 31.3.2021 passed by the 4th Additional Sessions Judge, Gondal in Criminal Appeal No.6 of 2014, which was preferred against the order of conviction dated 14.3.2014 in Criminal Case No.939 of 1992 under Sections 409 and 467 of the Indian Penal Code, where the Additional Chief Judicial Magistrate, Gondal acquitted the revisionist to the charge under Section 409 of the Indian Penal Code and convicted under Section 467 of the Indian Penal Code for a simple imprisonment of one year with fine of Rs.2,000/-. 3. Mr. S.K. Patel, learned advocate submitted that previously the Additional Chief Judicial Magistrate, Gondal by its order dated 27.1.2011 convicted the revisionist under Section 467 of the Indian Penal Code despite deciding the issue No.2 in negative, and therefore, the present revisionist had filed Criminal Appeal No.5 of 2011 before the Additional Sessions Judge, Gondal and by order dated 12.5.2011, the conviction dated 27.1.2011 under Section 467 of the Indian Penal Code was set aside and the appeal was partly allowed by remanding the matter back to Additional Chief Judicial Magistrate, Gondal for fresh trial. 3.1 Mr.S.K. Patel, learned advocate submitted that when the matter came up for trail after the remand, the learned Public Prosecutor filed purshis stating that the State would rely on the evidence which was recorded in the earlier trial and the State does not prefer to produce any more further evidence. Learned advocate, Mr.S. K. Patel further submitted that thus taking that fact into consideration, as no further evidence had come against the revisionist, the conviction under Section 467 of the Indian R/CR.RA/313/2021 JUDGMENT Penal Code on 14.3.2014 in Criminal Case No.939 of 1992 being on the same set of evidence, which was earlier recorded prior to the remand of the matter, is bad in law. 3.2 Referring to the evidence on the record, Mr.S.K. Patel stated that the allegation under Section 409 of the Indian Penal Code for Criminal Breach of Trust as a peon of Upleta Nagar Palika has not been proved. He submitted that the allegation of misappropriation of the tax amount which is alleged to have been collected by the peon has not been proved, and therefore, he stood exonerated on that ground. 3.3 For the conviction under Section 467 of the Indian Penal Code, Mr. S.K. Patel, learned advocate submitted that the investigation itself is defective. The departmental inquiry was under taken by the Tax Inspector, who is complainant in this matter and the same Tax Inspector has produced his report before the Chief Officer of Upleta Nagar Palika. Mr.Patel, learned advocate submitted that there are allegations of false signature of Ms.Tarulataben Seth on the Stock-Register and on the Tax Receipt the allegations are of forge signature of Mr.B. N. Der, who is recovery clerk. Mr. Patel, learned advocate submitted that Ms.Tarulataben Seth in her evidence has merely stated that the signature on the register is not hers, but has not specifically pointed that the present revisionist has forged her signature on the stock register. 3.4 Mr.S.K. Patel, learned advocate submitted that there was a practice of collecting the tax from the residence of the tax payers, the allegation is of giving the money to the peon, after getting the R/CR.RA/313/2021 JUDGMENT tax receipts. Mr.S.K.Patel, learned advocate submitted that it was the duty of the Tax Recovering Officer to have the custody of the tax receipts and when no ingredients under Section 409 of the Indian Penal Code has been proved and when the Court has not believed the case of misappropriation of money, the burden would be on the Investigating Officer or the prosecution to prove the offence beyond reasonable doubt. 3.5 Mr.S.K. Patel, learned advocate referring to the evidence recorded by the Investigating Officer submitted that the controversial signatures of Ms.Tarulataben Seth and Mr.B.N. Der have not been sent for examination of a handwriting expert and no specimen signatures have been collected of the revisionist and the alleged witnesses and when no evidence has come on record of the controversial signatures being forged by the revisionist, then the whole reliance would have to be placed on the handwriting expert report, which the prosecution has failed to do so. 3.6 As per Mr.S.K. Patel, learned advocate, the revisionist is on bail during the trial and after the order in Criminal Appeal No.6 of 2014 on 31.3.2021, the revisionist surrendered before the Court and at present, he is in judicial custody. It is also submitted that during the medical examination by the jail authorities, the revisionist was found Covid-19 positive and therefore, sent for medical treatment and now, the revisionist is under the medical guidance of the Rajkot Central Jail. 3.7 Mr.S.K. Patel, learned advocate has taken this Court to the evidence of witness Pritamlal Jagjivanbhai Joshi, who is record R/CR.RA/313/2021 JUDGMENT keeper, examined at Exhibit 67 and stated that his evidence does not clarify as to who had taken the receipt books and according to him, there is a normal practice of peons from different departments to collect the receipt books, Mr.Patel, referring to the evidence submitted that there is no such register maintained in the office of taking signature of peons who come to collect the receipt books on behalf of the concerned Tax Recovery Clerks or the Record Keepers. Thus, it appears from the evidence of Mr.Joshi that no signature of the revisionist is taken by the witness to confirm the fact that the tax receipt book was collected by the revisionist, and as per his evidence, he has verified the signature of Ms.Tarulataben Seth on stock register, as an acknowledgement of receipt. 3.8 Mr.S.K. Patel, learned advocate further referred to the evidence of Mr.B.N. Der, Recovery Officer, who has affirmed in his cross-examination that the Investigating Officer has not collected any specimen signature. Thus it also appears that no evidence has been collected by the Investigating Officer, for verification of the alleged forged signature. 4. Countering the arguments of Mr.S.K. Patel, learned advocate, Ms.Monali Bhatt, learned Additional Public Prosecutor submitted that the allegations against the revisionist is of collecting the tax amount totalling to Rs.996/- and when evidence of the persons who had given the tax amount to the present revisionist is on record, there would not be any necessity for any extraordinary evidence to prove the guilt. All the witnesses evidence on the record corroborates, and therefore, the conviction has been confirmed by the Appellate Court. Ms.Monali R/CR.RA/313/2021 JUDGMENT Bhatt, learned Additional Public Prosecutor submitted that there is no ground to interfere in the reasons recorded in the confirmation of conviction by the Appellate Court. Ms.Bhatt further submitted that relevant documents were produced, and witnesses were examined to prove the charge. Therefore, this court may not exercise discretion in favour of the revisionist by suspending the sentence. 5. Heard learned advocates on both the sides and perused the material on record. 6. The law on the subject is well-settled. When an appeal is preferred against conviction in the High Court, the Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously, depending on the facts and circumstances of each case. While considering the issue of suspension of sentence, each case has to be considered on the basis of the nature of offence, the manner in which the occurrence has taken place and whether in any manner bail granted earlier had been misused. 7. While considering an application under section 389 CrPC, the issue to be considered by the appellate Court is whether the case presented by the prosecution and accepted by the trial Court can be said to be a case in which, ultimately, the accused has fair chances of acquittal. This has to be done in the backdrop that the appellate Court cannot appreciate the evidence while considering an application under section 389 CrPC but, can look into the reasoning assigned by the trial Court while recording the conviction. Page 6 of 7 R/CR.RA/313/2021 JUDGMENT 8. In the present case, it appears that no evidence has been collected by the Investigating Officer for verification of signature by the handwriting expert. There is no recovery panchnama by the Investigating Officer of the receipt or stock register. At the same time, no specimen signatures of Ms.Tarulataben Seth or Mr.B.N. Der are recorded for expert opinion. There is prima facie case for revisionist to agitate his conviction, which is under Section 467 of the Indian Penal Code, which is for one year simple imprisonment and fine of Rs.2,000. 9. Thus, in the result, the execution of the sentence passed in Criminal Case No.939 of 1992 on 14.3.2014, affirmed in Criminal Appeal No.6 of 2014 on 31.3.2021 is suspended and the revisionist is ordered to be released on bail on furnishing personal bond of Rs.15000/- (Rupees fifteen thousand only) with surety of the like amount to the satisfaction of the trial Court and on the following conditions; (a) shall maintain law and order. (b) shall not indulge in any activity leading to breach of public peace and tranquility. (c) shall not leave the State of Gujarat without prior permission of the District Superintendent of Police (Rural), Rajkot. 10. Registry to send a writ of this order to the Jail authority and concerned Trial Court forthwith by E-mail / Fax. Direct service is permitted. Sd/- (GITA GOPI, J) RAVI P. PATEL