R. C. Deo Sharma,J. - (1.) THIS appeal has been preferred by an informant against the judgment and order dated 17-11-1980 passed by the learned Judicial Magistrate Kheri, whereby he acquitted the accused respondent no. 1 of the charge under section 408 IPC.
(2.) IT will appear that the appellant Rais Ahmad lodged a written report dated 25-9-1976 with the police stating that the accused-respondent no. 1 was a servant in his firm and used to deal, inter alia, with the realisation of amount and making payments etc. On 20-9-1976 an amount of Rs. 17,000.00 was said to have been paid as price of timber by one Nitya Nand Goyal to Abdul Rauf, respondent no. 1. The said accused-respondent was directed by the informant to deposit the said amount in the State Bank of India and have a draft in the name of Divisional Forest Officer, Bahraich, prepared. When the respondent no. 1 did not return till the evening the informant went to the bank only to find that the money had not been deposited at the bank nor any draft had been prepared in favour of the Divisional Forest Officer. After waiting for about five days a first information report was lodged on 25-9-1976. The police in due course investigated the matter and submitted a charge- sheet. The learned Magistrate, however, on a consideration of the evidence found the charge not proved and accordingly acquitted the accused respondent no. 1. Feeling aggrieved the informant has preferred this appeal purporting to be under section 378 of the CrPC and it has been contended that the evidence has not been properly appreciated by the trial court and that the finding of acquittal was contrary to law and facts and be set aside. I have heard the learned counsel for the parties at some length and have also been taken through the record. A preliminary "objection has been raised on behalf of the respondent no. 1 to the effect that an appeal against acquittal in a case started on [police report cannot be filed by the informant and should have been filed, if at all, by the State. The contention is not without force. Obviously in a police challani case an appeal can be filed under sub-section (1) of section 378 of the CrPC, only by the State. It is only in a case instituted on a complaint that an appeal can be filed by the complainant by special leave under sub-section (4) of Section 378 of the CrPC. Learned counsel for the appellant has then argued that the present appeal may be treated as a revision under section 401 of the CrPC and because all the powers available to an appellate court can be exercised under section 401 of the CrPC, the finding of acquittal should be set aside. It will appear from sub-section (3) of section 401 of the CrPC, that a finding of acquittal cannot be converted into a finding of conviction in revision proceedings by the High Court. All the same if circumstances justify the finding of acquittal can certainly be set aside though it' cannot be converted into a finding of conviction and in the circumstances the matter can be sent back to the trial court for a fresh trial according to law. This course is legally open but then the powers under section 401 of the CrPC, are to be exercised in accordance with the principles applicable to revision petition. The finding on facts based on appraisal of the evidence by the trial court cannot be reversed on the basis of a re-appraisal of the evidence unless the judgment suffers from patent illegality. It was held in Khetra Basi Samal v. The State of Orissa, AIR 1970 SC 272 that the revisional jurisdiction could be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there had been flagrant miscarriage of justice. Merely for the purpose of re-appraisal of the evidence a revision petition cannot be filed and that is the difference in the consideration of the matter in an appeal and in a revision. Instances have been given illustrating where the revisional powers can be exercised though these instances are not exhaustive. The nearest instance that can be applied in the present case is that if any material evidence has been overlooked by the trial court while recording acquittal then also interference in revision is possible. There is, however, a distinction between overlooking material evidence and taking a particular view of the evidence after consideration. In the former case, the evidence should have been overlooked completely meaning there by that there is no discussion of the matter and consequently no view what so ever expressed on that point. In the latter event, however, where evidence has not been overlooked but has been duly considered, it is the view taken on a consideration of the. evidence that is challenged by the applicant. Such a challenge merely for the sake of re-appraisal of the evidence is not permissible;.
(3.) LEARNED counsel for the appellant has urged that the accused respondent no. 1 had himself filed a complaint against the informant, his father, brother and others sometime after tie filing of the police case against him and in that complaint the accused-respondent had admitted that Rs. 17,000.00 were paid to him by one Nitya Nand but he had retained this amount towards his pay and other accounts and when the informant's father who was the real employer showed annoyance and threw the entire amount into the lap of the accused respondent to be taken towards his account, the accused respondent of his own, looking to the annoyance of his employer, retained only Rs. 8,000.00 and handed over Rs. 9,000.00 there and then. The learned Magistrate has referred to this aspect of the matter and discussed the evidence and consequently it cannot be said that the matter has been overlooked. He has, however, observed that looking to these averments the informant's father should have been produced by the prosecution particularly when the prosecution was in possession of the certified copy of the complaint several months before the evidence was recorded in the case. The informant's father, however, did not come in the witness box. Another contention of the appellant's learned counsel was that on the top of the bundle of currency notes was written 'Divisional Forest Officer' indicating that a draft was to be prepared in his favour. This fact has also not been overlooked by the court below although an explanation has been given saying that this endorsement on the top of the bundle of notes recovered from the accused appeared to have been made later and the reasoning given is that the fact of making this endorsement was not only not mentioned in the FIR, but is even negatived by the contents thereof. In the FIR it is mentioned that Rs. 17,000.00 were handed over by Nitya Nand to the accused-respondent himself. The informant had only directed the accused-respondent to have a draft prepared. If that was so there was no occasion for the informant to have handled the money or written anything on the top of the bundle of currency notes. The reasoning given by the trial court has been assailed but if the views are possible the one taken by the trial court cannot be lightly set aside even in an appeal against acquittal much less in a revision. In the circumstances, therefore, exercising the powers under section 401 of the CrPC, this Court will not be justified. in reversing the finding on the points of fact and sending back the case to the trial court for a fresh trial. It may be indicated that the appeal as preferred is clearly not maintainable in this case and treating the appeal as a revision the result, as mentioned earlier, will not be different.;