- (1.) The instant application under Section 378(4) of the Code of Criminal Procedure ('Cr.P.C.' for short), has been filed by the applicant, seeking leave to file appeal against the judgement of acquittal dated 26.5.2012, passed by the learned Additional Sessions Judge, Patiala.
(2.) The complainant Poonam Bansal, applicant-herein, moved an application to the Senior Superintendent of Police, Patiala, for registration of a criminal case against respondents no.2 and 3 alongwith their third co-accused Tarlok Kumar, alleging that she was married to Rattan Lal Bansal S/o Manohar Lal Bansal. She was cheated by the accused persons by hatching a criminal conspiracy. For the sake of brevity and to avoid repetition, it would be appropriate to refer to the facts noted by the learned trial court, in para 2 of its judgement dated 16.4.2011 and the same read as under :- " Brief facts of the prosecution case are that complainant Punam Bansal moved an application to S.S.P., Patiala, for registration of a criminal case against Manohar Lal Bansal, Tejpal Bansal, Branch Manager, State Bank of Patiala, New Grain Market, Nabha and Tirlok Kumar, on the allegations that complainant was married to Shri Rattan Lal Bansal son of Sh.Manohar Lal Bansal C/o Bansal Rice and General Mill, Nabha on 1.9.1992 and her parents have given dowry articles including gold jewellery weighing about 37 tollas consisting of three sets, one karra, five bangles, one nose pin, a tikka, a gents ring and a gents chain. The complainant co-habited with Rattan Lal Bansal as his wife and out of their wedlock two children namely Vishal Bansal (daughter) aged about 07 years and Abhinav Bansal (son) aged about 5.1/2 years were born who are residing with the complainant. Rattan Lal Bansal died on 11.10.1997 and after the death of Rattan Lal, husband of the complainant, accused Manohar Lal and Tejpal Bansal turned out complainant from their house alongwith minor children and now she has been residing with her parents alongwith her minor children. The husband of complainant was working in the joint business of rice mills alongwith his father Sh.Manohar Lal Bansal and brother Tejpal Bansal. Besides other investments, Sh.Rattan Lal Bansal had given a sum of Rs. 1,00,000/- which was lying credited to his account in the account books of General Rice Mill even after his death. Apart from it, the complainant had given a sum of Rs. 80,000/- on 21.3.1997 to the accused for its investment in the rice mill and the said amount was duly credited in the books of accounts so maintained by the accused. Complainant had a saving bank account no.2849 in her individual name got opened on 3.10.1992 in State Bank of Patiala, New Grain Market branch, Nabha and the payment of Rs. 80,000/- made by the complainant to the accused for its investment in rice mill was made through cheque and the same was debited to the account of the complainant and credited to the account of rice mill on 21.3.1997. The cheque book and passbook of the account of complainant was lying with accused No.1 and 2. On 24.11.1997, the amount of Rs. 80,000/- was returned to the complainant by getting the said amount credited into the above mentioned account of the complainant. Complainant was never married to Sh.Tejpal Bansal son of Manohar Lal Bansal either prior to or after the death of her husband Sh. Rattan Lal Bansal. The aforesaid account was got opened by the complainant in her individual name alone but very strangely in order to cheat the complainant Sh.Tejpal Bansal in connivance with Sh. Manohar Lal Bansal and Branch Manager, State Bank of Patiala, Nabha Branch and Sh. Tirlok Kumar got entered his name in the ledger folio of account of complainant as husband of the complainant and he by forging the signatures of the complainant, got withdrawn a sum of Rs. 79,500/- by issuance of a self cheque. The amount was drawn by one Sh.Tirlok Kumar as per the record of the bank and as such a sum of Rs. 79,500/- was debited to the account of the complainant despite the fact that complainant never issued any alleged cheque in favour of any person or as a self/bearer cheque. She was not in need of any such amount. By getting drawn the amount of Rs. 79,500/-, Sh.Tejpal Bansal, Sh. Manohar Lal Bansal, Branch Manager of the bank and Sh.Tirlok Kumar have committed offence of cheating and fraud by hatching a criminal conspiracy. Sh. Rattan Lal Bansal, husband of the complainant had a bank account No.10937 in State Bank of India Main Branch, Nabha and he had also a locker in the said bank in which the entire gold jewellery of the complainant was lying. After the death of Rattan Lal Bansal, complainant never operated the locker but she has come to know that the locker was operated by Sh. Tejpal Bansal and Sh.Manohar Lal Bansal in November 1997 after the death of Rattan Lal Bansal without any knowledge of the complainant and as such they have misappropriated the entire gold jewellery of complainant and caused heavy loss to her. Neither complainant nor Sh.Rattan Lal Bansal ever authorised any person to operate the locker but the above named accused operated the locker without the knowledge of complainant by hatching a conspiracy. Accused Manohar Lal Bansal and Tejpal Bansal are also liable to pay aforesaid amount of Rs. 1,00,000/- of Sh. Rattan Lal Bansal alongwith interest. The complainant made a demand of said amount from the above named accused but they have not given any heed to it and misappropriated the same for their own use. The above named accused committed the offence u/s 406,420,467,468,471,120-B/34 IPC and they are liable to be punished there under. Therefore, it is prayed that a criminal case may kindly be got registered against them. S.S.P., Patiala marked the said application to S.H.O., Kotwali Nabha to verify the fact and if prima facie offence is made out register the case and investigate. SHO, Kotwali, Nabha, registered the case and investigation was handed over to ASI Jit Singh. Accused Tejpal Bansal was arrested on 3.11.2001. Accused Manohar Lal was arrested on 28.1.2002 by SI Sewa Singh and he was released on bail as per the order of the Hon'ble Court. Accused Tirlok Kumar joined the investigation on 30.12.2001 but no offence has been made out against him and he was not arrested in this case. Tirlok Kumar made a statement on 28.1.2003 to the effect that on 25.11.1997 Manohar Lal handed over a cheque bearing No.SB/16-0546822 having signatures of Punam Bansal to him for encashment which was got encashed by him after appending his signatures on the backside of the cheque and the amount of Rs. 79,500/- obtained by him against the said cheque was given to him to Manohar Lal Bansal but he did not know whether Manohar Lal Bansal had given the said amount to Punam Bansal or not. No bank official was found guilty during investigation. Requisite record of the bank related to this case was taken into possession by ASI Jit Singh vide separate recovery memo in the presence of witnesses. After completing the investigation and other formalities, the instant challan for the offence punishable under Section 420,406,467,468,471, 120-B IPC was presented in the court against accused Manohar Lal Bansal and Tejpal Bansal. During the course of investigation, the accused were put under arrest. They were released on bail. Accused Tirlok Kumar was found innocent by the investigating agency. On conclusion of the investigation, report under Section 173 Cr.P.C., was presented to the learned court of competent jurisdiction. Having found a prima facie case, charge was framed against respondents no.2 and 3, who pleaded not guilty and claimed trial. The prosecution, with a view to prove its case, examined as many as 10 PWs. After conclusion of the prosecution evidence, statements of the accused under Section 313 Cr.,P.C., were recorded. All the incriminating material, brought on record by the prosecution, was put to the accused. They alleged false implication and claimed innocence. Opting to lead defence evidence, they examined Varun Gagneja, handwriting and finger prints expert, as DW-1. After hearing both the parties and going through the record of the case, the learned trial court convicted the accused for the offences punishable under Sections 120-B, 420, 467,468,471 IPC, vide its judgement dated 16.4.2011. Consequently, vide order of sentence dated 16.4.2011, passed by the learned Sub Divisional Judicial Magistrate, Nabha, the convicts were awarded the sentence as under :- "Convict Manohar Lal U/s 120-B IPC Rigorous imprisonment for period of one year and fine of Rs. 500/-. In default of payment of fine he shall further undergo rigorous imprisonment for two months. U/s 420 IPC Rigorous imprisonment for period of one year and fine of Rs. 500/-. In default of payment of fine he shall further undergo rigorous imprisonment for two months. U/s 467 IPC Rigorous imprisonment for period of two years and fine of Rs. 1,000/-. In default of payment of fine he shall further undergo rigorous imprisonment for three months. U/s 468 IPC Rigorous imprisonment for period of one year and fine of Rs. 500/-. In default of payment of fine he shall further undergo rigorous imprisonment for two months. U/s 471 IPC Rigorous imprisonment for period of one year and fine of Rs. 500/-. In default of payment of fine he shall further undergo rigorous imprisonment for two months. Convict Tejpal Bansal U/s 120-B IPC Rigorous imprisonment for period of one year and fine of Rs. 500/-. In default of payment of fine he shall further undergo rigorous imprisonment for two months. U/s 420 IPC Rigorous imprisonment for period of one year and fine of Rs. 500/-. In default of payment of fine he shall further undergo rigorous imprisonment for two months. U/s 467 IPC Rigorous imprisonment for period of two years and fine of Rs. 1,000/-. In default of payment of fine he shall further undergo rigorous imprisonment for three months. U/s 468 IPC Rigorous imprisonment for period of one year and fine of Rs. 500/-. In default of payment of fine he shall further undergo rigorous imprisonment for two months. U/s 471 IPC Rigorous imprisonment for period of one year and fine of Rs. 500/-. In default of payment of fine he shall further undergo rigorous imprisonment for two months." Dissatisfied with the above said judgement of conviction and order of sentence, the convicts filed their appeal before the learned Sessions Judge, Patiala. The complainant-Poonam Bansal, also filed her revision against the above said judgement of conviction and order of sentence, for enhancement of sentence. The appeal filed by the convicts and the revision filed by the complainant came to be decided, vide common judgement dated 26.5.2012, passed by the learned Additional Sessions Judge Patiala, thereby allowing the appeal against conviction and dismissing the revision of the complainant. Feeling aggrieved against the above said judgement of acquittal dated 26.5.2012, the applicant has approached this court by way of instant application under Section 378(4) Cr.P.C., seeking leave to file appeal. That is how, this court is seized of the matter. Learned counsel for the applicant vehemently contended that the learned lower appellate court has committed serious error of law, while not appreciating the documentary as well as oral evidence in the right perspective. He further submitted that sufficient and convincing evidence has been brought on record, to bring home the guilt against accused-respondents no.2 and 3 and they were rightly convicted by the learned trial court. However, the learned lower appellate court has misdirected itself, while passing the impugned judgement of acquittal and the same was not sustainable in law. We have heard the learned counsel for the applicant and with his able assistance, have gone through the record of the case. After giving our thoughtful consideration to the contentions raised and keeping in view the peculiar facts and circumstances of the present case, we are of the considered opinion that it is not a fit case for granting leave to file appeal against the impugned judgement of acquittal. We say so for more than one reasons, being recorded here-in-after. Firstly, a bare perusal of the impugned judgement of acquittal will show that the learned Additional Sessions Judge has assigned very cogent and plausible reasons, minutely discussing each and every material aspect of the matter. The learned lower appellate court has disbelieved the prosecution evidence after finding it to be suffering from very many serious discrepancies. Learned counsel for the applicant could not point out any illegality or perversity in the impugned judgement. In this view of the mater, it is held that the learned Additional Sessions Judge has not committed any error of law, while passing the impugned judgement of acquittal. Secondly, a combined reading of both the judgements rendered by the learned courts below and also keeping in view the peculiar facts of the present case, it has been found that the prosecution has miserably failed to prove its case. It has come on record that after the death of the husband of the applicantcomplainant, she was provided maintenance by none-else, but respondents no.2 and 3. She has also admitted that she separated from the family just after 3 years of her marriage. Thereafter, she had been staying with her husband in a different house. The learned Additional Sessions Judge, while passing the impugned judgement of acquittal, recorded the cogent finding, which reads as under :- " Admittedly, the husband of the complainant died and the maintenance was also given by the appellants to the complainant. The complainant even went to the extent of levelling allegations of embezzlement of her 37 tolas of gold and share certificate which she could not prove during the trial. The averments made by her in para 5 of the complaint that her husband had business interest in the rice sheller was also proved to be false as she admitted in the cross examination that her husband had no interest in the property of the appellants. Even otherwise complainant admitted that she is graduate and mere fact that she had opened the account within one month from her marriage in which she deposited her Shagan amount, which she has received in the marriage shows that she is aware of her rights. She also admitted that cheque book was given to her by the Bank Authorities and even the name of her husband was not mentioned in the saving account. Although the prosecution has not been able to prove as to when the cheque books came into the hands of the appellants, but then also there was no occasion for the complainant to hand over the cheque books to her inlaws as she admitted that she was living separately and further her husband had no joint share in the rice mill or other property. Thus it is held that prosecution has not been able to prove its case against the accused beyond the shadow of reasonable doubt. Apart from above, the allegation was that appellant had withdrawn the amount with the connivance of Tarlok Kumar and bank officials. However,neither any bank official was made accused in the present case nor Tarlok Kumar was made accused in the present case. Complainant even admitted in her cross-examination that she was in need of money in November, 1997. The perusal of the trial court judgement shows that trial court ignored document Ex.R1 on the ground that it is a photostat copy especially in view of the fact that witness admitted that he had written that writing. The trial court further held that no suggestion was put to Tarlok Kumar that Manohar Lal never handed over the cheque to him for encashment and therefore, the appellants are guilty. However, it is well settled proposition of law that in criminal case the prosecution has to prove its case against the accused beyond a shadow of reasonable doubt and the burden never shifts on the accused. In the present case as stated above the prosecution has not been able to prove its case against the appellants beyond shadow of reasonable doubt. Thus the appellants are liable to be acquitted by giving benefit of doubt." Keeping in view the facts of the present case and the above said findings recorded by the learned Additional Sessions Judge, we are not inclined to take a different view than the one taken by the learned Additional Sessions Judge, while passing the judgement of acquittal. Thirdly, it is settled proposition of law that whenever two views possible, the view which favours the accused, is to be followed by the court. The view taken by this court also finds support from the judgement of the Hon'ble Supreme Court in the case of Arulvelu & anr. vs. State represented by the Public Prosecutor and anr., 2009 4 RCR(Cri) 638. The relevant observations made by the Hon'ble Supreme Court in para No.39, 40 and 41 in the case of Arulvelu's case read as under: 39. In Ghurey Lal v. State of Uttar Pradesh, 2008 10 SCC 450, a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above: 1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
(3.) The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.;