LAWS(GJH)-1996-10-15

STATE OF GUJARAT Vs. KRUSHNKANT SHANTILAL PANDYA

Decided On October 29, 1996
STATE OF GUJARAT Appellant
V/S
Krushnakant Shantilal Pandya And Others Respondents

JUDGEMENT

(1.) The judgment and order of acquittal passed by the learned Metropolitan Magistrate of Court No. 9 at Ahmedabad on 18th October 1991 in Criminal Case No. 3176 of 1989 is under challenge in this appeal by leave of this Court under S.378(4) of the Code of Criminal Procedure, 1973 (the New Cr. P.C. for brief). Thereby the learned trial Magistrate acquitted the respondents herein as the accused of the offences punishable under S.409, S.468 read with Sec. 464, S.477-A and S.114 of the Indian Penal Code, 1860 (the I.P.C. for brief).

(2.) The facts giving rise to this appeal move in a narrow compass. Respondent No. 1 herein was the Chairman of the Gujarat State Khadi Gramodyog Karmachari Credit Co-operative Society Ltd. (the Society for convenience) and respondent No. 2 herein was its Secretary and respondent No. 5 herein was its Accountant at the relevant time during the period from 1983 to 1988. It does not become clear from the record as to what was the status of each of respondent Nos. 3 and 4 herein at the relevant time qua the Society. It has been alleged that the respondents herein in collusion with each other embezzled the moneys of the Society by creating false documents of encashment of loans in the names of certain fixed deposit-holders without actually paying the loan amounts to such fixed deposit-holders. It appears that such malpractices alleged to have been adopted by the respondents herein came to light during the tenure of one Kirankumar Babulal Shah (the complainant for convenience) when he became the Chairman of the Society. It appears that, during his tenure as its Chairman, the report of the Government Auditor with respect to the affairs of the Society was received pointing out certain irregularities in maintenance of accounts. Thereupon, the complainant got appointed one Ambalal Keshavlal as an Internal Auditor for the purpose of auditing the past accounts of the Society. It may be mentioned that he was working as Senior Auditor in the Gujarat Rajya Khadi Gramodyog Board (the Board for convenience). He submitted his report at Exh. 50 on the record of the trial Court. Thereafter, the complainant gave his complaint in the Court of the Metropolitan Magistrate of Court No. 9 at Ahmedabad on 28th August 1989 charging the respondents herein with the offences punishable under Secs. 406, 409, 416, 468 read with Secs. 464, 447 and 114 of the I.P.C. It came to be registered as Inquiry Complaint No. 111 of 1989. By his order passed therebelow, the learned trial Magistrate ordered the complaint to be sent for investigation under S.156(3) of the New Cr. P.C. It appears that the police submitted a charge-sheet against the accused on 22nd December 1989 charging the respondents herein as the accused of the offences punishable under Secs. 409 & 468 read with S.464, 477-A and 114 of the I.P.C. It came to be registered as Criminal Case No. 3176 of 1989. The charge against the accused was framed on 12th January 1990 at Exh. 2 on the record of the trial Court. No accused pleaded guilty to the charge. They were thereupon tried. After recording the prosecution evidence and after recording the further statement of each accused under S.313 of the new Cr. P.C. and after hearing arguments, by his judgment and order passed on 18th October 1991 in Criminal Case No. 3176 of 1989, the learned Metropolitan Magistrate of Court No. 9 at Ahmedabad acquitted the respondents herein as the accused of the offences with which they were charged. That aggrieved both the original complainant and the prosecution agency. The prosecution agency thereupon invoked the appellate jurisdiction of this Court after obtaining its leave by means of this appeal for questioning the correctness of the aforesaid judgment and order of acquittal passed by the learned trial Magistrate.

(3.) It appears that the original complainant also applied for special leave to appeal against the aforesaid judgment and order of acquittal passed by the learned trial Magistrate by means of Miscellaneous Criminal Appeal No. 3949 of 1991. By the order passed by this Court on 1st October 1993, such leave was refused and the application was rejected. The original complainant has, however, engaged learned Advocate Shri S. D. Patel to assist the learned Additional Public Prosecutor for conducting this appeal.