- (1.) THE challenge in this revisional application is to the judgment and order dated 02.03.2009 passed by Sri Anupam Sarkar, the learned Judicial Magistrate, Kalyani, Nadia thereby acquitting the opposite party No. 2 Bhola Nath Roy Chowdhury @ Bholanath Chowdhury from the charge under Section 408 of the Indian Penal Code in G. R. Case No. 64 of 1997.
(2.) DILIP Kumar Das, the then Branch Manager of the Oriental Insurance Co. Ltd., Kalyani Branch lodged one written complaint with the Officer-in-Charge of the Kalyani Police Station against the opposite party No. 2, Sri Bhola Nath Roychowdhury alleging therein that on 29.04.1997 after opening the cash box of the office, he found that a cash amount of Rs.10,260/- was missing from the box. The opposite party No. 2 was absent on that date without prior notice. The Branch Manager of the Oriental Insurance Co. Ltd., Kalyani Branch lodged another complaint with Kalyani P. S. alleging therein that a further sum of Rs. 4,11,879/- was also misappropriated by Bhola Nath Roy Chowdhury which he detected from the Books of Accounts and records. On the basis of the said F. I. R, Kalyani P. S. Case No. 56/97 dated 15.05.97 was registered and the case was investigated into and finally ended in charge-sheet under Section 408 of the Indian Penal Code against the opposite party No. 2. The opposite party No. 2 pleaded not guilty to the charge and as a result, the trial commended. In course of trial, as many as six witnesses were examined on behalf of the prosecution. Only document admitted into evidence was the F. I. R dated 12.05.1997 which was marked as Exhibit - 1. The prosecution failed to produce any further document in course of trial. The learned trial Court upon consideration of the evidence on record found the opposite Party No. 2 not guilty to the offence and acquitted him by the impugned judgment. The de facto complainant i.e. Manger, Oriental Insurance Co. Ltd., Kalyani Branch filed this revisional application challenging the legality, validity and propriety of the order mainly on the ground that the learned Court failed to appreciate the evidence on record properly and that the learned Court failed to exercise its power under Section 311 of the Code of Criminal Procedure read with Section 165 of the Evidence Act in the matter of calling the witnesses and documents seized in course of investigation by the prosecution. The point to be decided in this revisional application is whether the order impugned is sustainable in law.
(3.) THE jurisdiction of the High Court while exercising its revisional power is limited and restricted specially in case of acquittal. It is only in glaring cases of injustice, resulting from some violation of the fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of acquittal and direct retrial of the acquitted accused. THE power should be exercised sparingly and with great care and caution. THE mere circumstance is that a findings of fact recorded by the trial Court, may, in the opinion of the High Court be wrong, is not justified for setting aside the acquittal and direct retrial. This view was taken in Bansi Lal v. Laxman Singh, 1986 SCC (Cr) 342 : 1986 C Cr LR. (SC) 132. THE Hon'ble Apex Court in K. Chinnaswamy Reddy v. State of A. P., (1963)1 Cr LJ 8 in paragraph 7 observed : "Para - 7 - It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion 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 has been a flagrant miscarriage of justice. Sub-section (4) of S. 439 forbids a High.Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. THEse cases may be : where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. THEse and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4). We have therefore to see whether the order of High Court setting aside the order of acquittal in this case can be upheld on these principles." In the instant case, the learned Magistrate appreciated the evidence on record made available to it by the prosecution. The de facto complainant who happened to be the Branch Manager of the Oriental Insurance Co. Ltd., Kalyani Branch was examined and cross-examined in that case besides other witnesses. The case record shows that the learned Trial Court had given extraordinary latitude to the prosecution to procure witnesses named in the charge-sheet. The prosecution failed to even bring the I. O. of the case and admitted any piece of document into evidence save and except the F. I. R. By the order dated 02.01.2009, the learned Magistrate rejected the prayer of the learned P. P. who was conducing the case on behalf of the State for adjournment and closed the evidence of the prosecution.;