MAHESHKUMAR HARILAL RAJPARAversusSTATE OF GUJARAT

              R/CR.RA/313/2021                                 JUDGMENT




                 IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

               R/CRIMINALREVISIONAPPLICATIONNO. 313 of 2021


FORAPPROVALANDSIGNATURE:


HONOURABLEMS. JUSTICEGITAGOPI                                             Sd/-

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1    Whether Reporters of Local Papers may be allowed                      No
     to see the judgment ?

2    To be referred to the Reporter or not ?                               No

3    Whether their Lordships wish to see the fair copy                     No
     of the judgment ?

4    Whether this case involves a substantial question                     No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

==========================================================
                           MAHESHKUMARHARILALRAJPARA
                                     Versus
                                STATEOF GUJARAT
==========================================================
Appearance:
MRSK PATEL(654)for the Applicant(s)No. 1
MS.MONALIBHATT,ADDITIONALPUBLICPROSECUTOR(2)for the Respondent(s)No. 1
==========================================================

 CORAM: HONOURABLE MS. JUSTICE GITA GOPI

                                 Date: 19/04/2021
                                 ORALJUDGMENT


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


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and Order dated 31.3.2021 passed by the 4 th 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



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            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



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            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



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            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



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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.



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               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/-

                                                          (GITAGOPI,J)
RAVIP. PATEL



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