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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.21 OF 2003
The State of Maharshtra …Appellant
, for the Appellant-State.
Ms. Rukmini Khairnar i/b Mr. Pramod Joshi, for Respondent Nos.4 to 7.
JUDGMENT
1. Heard Mr. Shinde, learned APP for the Appellant – State and Ms. Rukmini Khairnar, learned Counsel for the Respondent Nos. 4 to 7.
2. By the present Criminal Appeal filed under Section 378(1) of the Code of Criminal Procedure, 1973 (“CrPC”), the challenge is to the legality and validity of the Judgment and Order dated 23rd May 2002 passed by the learned JMFC, IInd Court, Thane in RCC No.105 of 1994. By the impugned Judgment and Order the Accused have been acquitted under Section 248 of CrPC for the offences punishable under Sections 406, 468, 471 r/w 149 of the Indian Penal Code, 1860 (“IPC”).
3. The prosecution case is set out in Paragraph Nos.[2] to 4 of the impugned Judgment and Order of the learned Trial Court, which reads as under:- “2. In brief the facts of the prosecution case are as under:- Complainant namely Arun Shinde was working as an Administrative Officer in the Bayer India Company. In the year, 1992, the accused no.1 Dwarika Prasad Sitaram Mishra was secretary and accused no.2 Dayanand was Chairman, accused no.3 Ramchandra was a Treasurer, accused nos. 4 & 5 were the Accountants and the accused nos. 8 to 14 are the members of the Bayer India Credit Co-operative Society, Thane. The accused persons were looking after the affairs of the company. Being a office bearers of the company, loan used to be given to the members for purchasing domestic articles. Account of every years Credit Co-operative Society used to get audited every years by Auditor. During the period 1/7/1990 to 31/3/1992. Special Auditor Shri. More did the Audit of the Company. As per the said Audit, an amount which was actually deposited with the Society was found to be less. In the year 1993, Shri. More took Audit of the Credit Cooperative and found that Rs.42,81,749/- is less in comparison with the deposit made to the Society. In the month of August 1992, every person of Bayer India Company came to know about the difference in the account of the Bayer India Credit Co-operative Society. Therefore, complainant lodged report Exh.108 in pol.stn. Kapurbawadi.
3. On the strength of this report Exh. 108, the offence vide C.R.No. I-178/92 for the offences punishable U/Sec. 406, 468, 472 of the Indian Penal Code was registered in pol.stn. Kapurbawadi.
4. During the investigation, specimen signature and Handwriting of the accused persons were obtained. Same were sent before Handwriting expert for talling the same with the written made by the accused in the record. The accused Dwarika Prasad has also executed written Stamp Paper and Cheque in favour of company stating therein to repay the amount to the company. Statements of witnesses were recorded. After obtaining report from Handwriting Expert Sr.P.I. Kapurbawadi has filed chargesheet against the accused persons for the offence punishable U/Section 406, 468, r.w. 149 of I.P.C.”
4. During the trial the prosecution examined 22 witnesses. The learned Trial Court after analysis of the evidence on record held that the prosecution failed to prove the case against the Accused beyond reasonable doubt. The learned Trial Court therefore acquitted all the Accused by giving them benefit of doubt.
5. Before consideration of the merits, it is necessary to set out legal position concerning the approach of the Appellate Court while dealing with the Appeal against acquittal. The Supreme Court in the recent decision in the case of Babu Sahebgouda Rudragoudar v. State of in Paragraph Nos.39, 40 and 41 has discussed the legal position in that behalf as under:- “39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29 “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.’ ”
40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC as follows: (SCC p. 584, para 8) “8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record.
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity;
41.2. That the same is based on a misreading/omission to consider material evidence on record; and
41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. ” (Emphasis added)
6. Thus, the Appellate Court while considering the legality and validity of the judgment of acquittal of the Trial Court shall observe following principles:i. An Appellate Court has full power to review, re-appreciate and re-consider the evidence upon which the order of acquittal is founded. ii. If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of the acquittal recorded by the Trial Court. iii. If the view taken by the Trial Court is possible view, the Appellate Court shall not set aside the order of acquittal on the ground that another view is also possible. iv. The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the Accused was proved beyond a reasonable doubt and no other conclusion was possible.
7. It is necessary to analyse the evidence on record and the findings recorded by the learned Trial Court on the touchstone of the above parameters.
8. The re-appreciation of the evidence of the witnesses examined by the prosecution establishes the following aspects:i. The witness No.1 i.e. PW-1 - Arun Maruti Shinde, was working as Administrative Officer in the Bayer India Company (Company) and in the year 1993, he was working as Semi Skill Operative in the Company. He has deposed that in the year 1969, Bayer India Credit Employee Society, (Credit Society/Society) was established for fulfilling economic difficulties of the workers. In the year 1992, the Accused No.2 - Dayanand Bhat, was working as Chairman of the Credit Society. The Accused No.1 - Dwarakaprasad Mishra, was Secretary of the Credit Society and the Accused No.3 - Ramchandra Kadam, was treasurer of the Credit Society. The Accused Nos.4, 5, 6 and 7 were Accountants of the said Credit Society. The Accused Nos.[8] to 14 were the Committee members of the Credit Society. In his deposition, he further stated that the Accused were looking after the affairs of the said Credit Society. He stated that during the period from 1/7/1990 to 31/3/1992 Audit was done by Mr. Madhukar More and the Auditor found that the amount which was actually deposited with the Society was found to be less and found that an amount of Rs.42,81,749/- was less credited in the said Credit Society, in comparison with the deposit amount made to the Society. He stated that the Accused persons were looking after the affairs of the Society when amount was found less. In his crossexamination conducted by some of the accused, he admitted that prior to lodging report by him he had absolutely no concern with the affairs of the Society and that he has no personal knowledge about the affairs of the Society. He has also admitted that FIR has been lodged on the basis of report of the Special Auditor. Thus, deposition of PW-1 is not material for establishing the offences alleged against the Accused. ii. In view of said admissions of PW-1 to the effect that he was not concerned with the affairs of the Society and the FIR had been lodged on the basis of the report of Special Auditor, the most important evidence in this case is that of Special Auditor - Madhukar Rajdhar More, who has been examined as witness No.2. In his deposition PW-2 - Madhukar More, Special Auditor, stated that he was working as Special Auditor since 1982 onwards and when his deposition was recorded i.e. in the year 2002, he was working as District Special Auditor. He stated that he did Audit of Credit Society, for the period of 1/7/1990 to 31/3/1993 and that while making Audit it was revealed that there are entries in respect of giving loans to the members in the register, but same did not find place in the cash book. So also there was difference about the loan entries in the register and Cash Book. Sometimes, in Cash Book less amount was shown than the amount which was shown in the register about loan and sometimes there was more amount which was shown in the Cash Book than the amount which was actually shown in the register. It was also revealed that loan amount was shown given to the members in the register on the data shown against it but same was given after some months to the members. It has been further stated that some entries about expenses were shown twice in the Cash Book. So also as per Cash Book actual amount was not handed over to the new Committee at the time of handing over the charge and part of cash amount was delivered to the New Body, while handing over the charge. The PW-2 stated that amount of Rs.42,00,000/- were misappropriated by the Society. PW-2 stated that internal audit was not done in the said Society but same was done to be shown in the annual report. The said Audit Report at Exhibit-112 is proved by the PW-2. Further in the evidence of PW-2 - Madhukar More, various details are set out. It is significant to note the cross-examination of PW-2 - Madhukar More. In his cross-examination he has given following admissions: “(i) “I cannot tell whether there was full Quorum to the meeting held by Credit Co-operative Society of Bayer India on 20/08/1992. Account for the period 1990-91, 1991-1992 & therafter till August 1992 was not written in the Cash Book/Ledger.” (ii) “While doing Audit in this case for the period 1990- 1991, 1991-1992 and till August 1992. Prior period to 1990- 1991 has been covered. I cannot Path tell whether the accused persons were members in the Body of Sanstha prior to 1991 of the Credit Society. The signature of accused persons Nos.8,9,10,11,12,13,14, is nowhere found in the Account Record of Credit Co-operative Society. Bayer India No A/c for the period 1990 till August 1992 was not written in the A/c record. It is not true to say that as A/c from 1990 till August 1992 was not written hence. I gave my findings for this period only on guess. It is not true to say that my Audit Report has no base hence same is false and same was prepared by me at the instance of New Body of Credit Society. ” Thus, the contents of the examination-in-chief of the PW-2 is required to be appreciated in view of the above and other admissions given in the cross-examination. iii. The PW-3, and PW-4 are punch witnesses. iv. PW-5 - Mahadev Nathu Dhavle, was working in the Compnay since 1996. Therefore, he was not working in the Company at the relevant period which is from 1990-1993 i.e. 1/7/1990 to 31/3/1993. In his cross-examination he has admitted that he has no personal knowledge. PW-6 also admitted that he has no personal knowledge. v. PW-7 - Kashinath Mahadev Hajare, stated in his deposition that he was serving in the Bayer India Company since 1969 and he took loan of Rs.20,000/- on 28th May 1992 and loan was deducted from his salary from the month of June 1992. In his examination-in-chief he stated that in the register having name of persons who have taken loan his name appears at Page 24, Serial No.621 dated 31st October 1990, though, he had taken loan on 28th May 1992. In his examination-in-chief he stated that he is not aware who has maintained the register. In his crossexamination he admitted that in his salary of 1990 no instalment was deducted in respect of the said loan and that he had not seen any papers in respect of the said entry to show that loan was shown in the year 1990. He admitted that from police he came to know in respect of the said loan and in register the date 31st October 1990, is not shown against his name. Thus, in view of the said admissions given in the cross-examination of the PW-7, it is clear that his evidence is not helpful for establishing the offences as alleged against the Accused. vi. PW-8 – Chandrakant Purushottam Rotkar, deposed in his deposition that since 1988 he was working in the Company and he had not taken any loan from the Credit Society. He further stated that he came to know from police that in the loan register it is shown that he had taken loan of Rs.1,500/- on 1st April 1991 from the Credit Society. The loan register of the year 1990 at Page No.252 shows that he was debtor for Rs.1,500/-. In the cross-examination he admitted that no instalment was deducted at any time from his salary towards loan of Rs.1,500/- and further that if he would have taken loan then instalment would have been deducted from his salary. He has further admitted that he has no personal knowledge about the case. He has further admitted that register of the year 1991 has been prepared through computer and the same do not bear signature and seal of the Company. Thus, this significant cross-examination given by the PW-8 shows that the author of the said loan register and authenticity is not established. This evidence is significant for appreciating the various findings recorded by the learned Trial Court. vii. PW-9 – Vidhhayadhar Shantaram Lotankar, stated in his deposition that since 1982 he was serving in the Company and he had taken loan of Rs.20,000/- on 27th May 1992 from the Credit Society and accordingly he had signed on the register on 27th May 1992. He stated that from Police he came to know that he had taken loan on 31st October 1990 and the said date is shown against his name in the register. He stated that he was not aware who is maintaining the register. In the cross-examination he admitted that the instalment regarding loan was deducted from his salary after 27th May 1992 onwards and prior to that no instalment was deducted from his salary in respect of the said loan. He also admitted that date 31st October 1990 is not shown against his name. Thus, his evidence is also significant as the same clarifies that the prosecution failed to establish about the persons who had prepared the said register and the authenticity of the same. viii. Similar evidence is recorded of PW-10 to PW-13 and PW-16 to PW-18. ix. PW-14 - Shashikant Dattaram Waman, stated that he took loan of Rs.14,500/- in the year 1989 and the instalments were deducted from his salary. He stated that he had paid Rs.400/- to the Accused No.1 towards remaining loan and receipt was issued by the Accused No.1 in his favour, however, entry was not made in the register. In the crossexamination, he admitted that prior to the loan taken by him no amount was deducted from his salary and as per rules after taking loan instalments were deducted from his salary and amounts were paid to the Credit Society. x. PW-15 - Chandrakant Pandurang Dhavale in examination-in-chief stated that although he had not taken loan of Rs.5,000/- the said amount was wrongly deducted from his salary. However in crossexamination this witness has stated that no wrongful loss is caused to him as Rs.5000/- has not been deducted from his salary. xi. PW-19 - Bhalchandra Shankar Tipnis, stated that since 1986 he was working as Certified Accountant and that he was acting as the Auditor of the said Credit Society for 3 years till 1990. Thus, as for the relevant major period of 1/7/1990 till 31/3/1993 he had not acted as Auditor and therefore his evidence is not material. xii. PW-20 - Sudhir Vasant Dhamanskar, deposed that the Credit Society was authorized to give Hire Purchase loan of Rs.15,000/- to Rs.20,000/- as a long term loan and the transaction was required to be made through cheque. But the said Credit Society, used to make transaction through cash. The Credit Society used to keep cash more than Rs.500/- and used to give loan in cash to some persons. PW-20 deposed that on 20th August 1992, new Committee took over charge from the earlier Committee and the Accused were part of the earlier Committee. During inspection of the documents it was revealed that some alteration was made in the register and cash was not tallied as per the record and as Auditor Madhukar More, gave the Audit Report, the complaint has been filed. In the cross-examination he admitted that prior to 20th August 1992 he had never seen the record of the Credit Society. He submitted that after 15 days of 20th August 1992 he came to know about wrong entries in the register and certain entries were cancelled. Therefore, he came to know that amount has been misappropriated by old Committee. He has deposed that within one month after the knowledge in respect of the said fact complaint was filed with the Joint Registrar, Thane, and thereafter inquiry was conducted. In the cross-examination, he admitted that in the month of September 1992 he became Secretary of new Committee and prior to that he was a member. He had not made any complaint against the earlier office bearers of the Credit Society till 1993. xiii. PW-21 - Jaysingh Rangoli Kambale, is the Investigating Officer. He has deposed that Accused persons have misappropriated the amount of Rs.42,81,749.84 during the period of 1990-1993 i.e. 1/7/1990 to 31/3/1993. The misappropriation is seen from the Audit Report at Exhibit-122. He deposed that on 10th December 1993, he had seized stamp paper executed by the Accused and the cheques issued by the Accused for an amount of Rs.9,00,000/- were seized under panchanama. The said stamp paper is at Exhibit-128 and cheques are at Exhibit-138, 139 and 140. The writing on the stamp paper is of Accused No.1 and 2 i.e. B.P. Mishra and Bhat. He deposed that the registers of the Credit Society were seized by him on 18th February 1994 and that Accused persons have made false entries in the register and prepared false resolutions and loan was disbursed in the name of persons who were not made the members. In the cross-examination, he admitted that as per Exhibit-121 Audit Report till August 1992 Cash Books were not written and the same were written afterwards through computer. In the cross-examination PW-21 i.e. Investigating Officer further admitted that he has not recorded statement of persons who had prepared Cash Books account till August 1992. He admitted that on Page 184 of report Exhibit-121 during the period of 1990-1993 accounts were properly written and loss and profit is tallied with the account book maintained. However, he further stated in his cross-examination that in view of the remark regarding misappropriation it cannot be said that the Credit Society had maintained the accounts properly. xiv. PW-22 - Vishwas Vinayak Ranjangaonkar was a handwriting expert. He deposed that in the year 1994, he was working as State Examiner of Document in Pune and he has given opinion on 21st December 1995. In the cross-examination he has admitted that there is possibility of Natural Variation in the writing of person. xv. At this stage, it is also required to note the evidence of PW-3 - Vijay Amrut Sawant who acted as Punch. He deposed that in his presence cheque of Rs.9,00,000/- drawn on Saraswat Bank and one stamp paper was given by the Accused No.1 to the Police. In the said writing dated 30th September 1992 on the stamp paper the Accused No.1 - D.S. Mishra had written as follows: “To, The Share-Holders, BAYER (INDIA)
EMPLOYEES CO-OPERATIVE CREDIT Society LTD., THANE. I MISHRA D.S. aged about 40 years presently residing on this the 30th September 1992, solemnly affirm under oath as follows. That I am the member of Bayer (India) Employees Cooperative Credit Society Limited and by virtue of myself being member got elected in the Managing Committee holding the post of Secretary. That during my tenure till June 30, 1991 there have been certain irregularities in the accounts, appropriation of funds, utilisation of funds and disbursement thereof and in my estimation such figure stands at Rs.33,05,000/- (Rupees Thirty Three Lakhs and Five Thousand Only/-) approximately as on June 30, 1991 and I am solely responsible for the same. The position of such irregularities and the extent thereof for the period from 1st July 1991 to the date of this affidavit has not been determined till date of this affidavit. I confirm that I am solely responsible for this and undertake to indemnify the Society the above referred amount and any additional amount determined as payable for the period of my tenure till the date of my tenure and the amount shall be made good within Fifteen days from the date of this affidavit. Whatever stated above is true and correct. Affirmed on this the day and year first hereinabove mentioned.” (Emphasis added)
9. Thus, the above evidence on record shows that the allegations against the Accused are very serious. The contention of the prosecution is that the Accused persons have misappropriated the amount of Rs.42,81,749/- during the period of 1990 to 1993 i.e. 1/7/1990 to 31/3/1993, however, the evidence on record shows that most of the witnesses regarding whom loan has been shown to be given earlier than the actual date of disbursal of the loan admitted that the loan has been given to them subsequently and the instalments from their salary have started after the loan was actually disbursed to them. All of them have admitted that there was no any financial loss to them. The above writing given on the stamp paper indicate that the Accused No.1 was solely responsible for the misappropriation.
10. In view of the above evidence on record it is necessary to take into consideration the findings recorded by the learned Trial Court in the impugned Judgment and Order. The learned Trial Court has inter alia recorded following findings:i. Though, prosecution has led evidence of employees i.e. P.W. s. nos.[6] to 20, prosecution failed to show that as per Account calculation Rs.2,90,550/- was given as a loan to the members and Rs.3,000,00/- was shown in the Cash Book towards payment of loan and therefore, Rs.9,450/- was shown in excess, than the actual payment. Apart from this no evidence was even laid by the prosecution to show that in the year, 1991 Society was having cash of Rs.2,90,550/- and only to that extent loan was paid to the members. So also about payment of cheques only allegation made is that same was shown as Hire Purchase Loan in the Account. But, there is no case that an amount of cheque was not taken by the Company. ii. The version of P.W. no.2 further reveals that on 30/6/91 Rs. 14,990/- was shown as debited to the Bank A/c. as Suspense. Accordingly, an amount of cheque for Rs.15,000/- was adjusted, as entry in respect of earlier cheque of Rs.15,000/- was not taken when same was encashed. His evidence further reveals that Rs.1816/- taken from the employees towards repayment of loan vide Receipts no.1601 to 1605, but entry about receipt was not made in the Cash Book during the period 10/7/90 to 16/8/90. From this version. Only it can be said that entry about repayment is not made in the Record, but there is no evidence on the record to the extent that in fact Body has received Rs.1816/- towards repayment. His evidence further reveals that on 30/4/91, at page no.90 of Cash Book Rs.4,35,000/- was shown debited as an Additional Loan to the employees, but actual payment was not made and no entry in respect of disbursement of this amount is made in the Loan Register. As discussed earlier, prosecution failed to show that in the year 1991, an amount of Rs.4,35,000/- was with the Society. Because no details were given about this amount. Prosecution itself admits that no entry about disbursement of Rs.4,35,000/- is made in the Loan Register. iii. At this juncture I have perused the observations made by the P.W. no.2 at page no.184 of Audit Report Exh.121. As per observations made Auditor has opined in para 2 that during the period 1992 to 31-3-1993 as per Balancesheet, Loss, profit of the Society is talling with the A/c. Record and same has been maintained as per the provisions of Maharashtra Co-operative Society Act. In view of above observations made by the Auditor itself after examining the Records of the company by him it is very difficult to hold that there is difference in the Account and Body has not properly maintained the Account. iv. The version of Vijay, P.W.[3] reveals that on 10/12/93, in his presence cheque of Rs.9,00,000/- and one Stamp Paper were given by the accused no.1 to police in which it was mentioned that an amount was misappropriated. During cross-examination P.W. no.3 admitted that as per contents of Panchnama Exh.128 from complainant police has seized records and Panchnama does not speak about the presence of accused nos.[1] & 2. In view of this it is difficult to rely P.W. no.3 on the count that in his presence, police has seized cheque Exh.138 and Stamp Paper at Exh.139 & 140 from the accused nos. 1 and 2. Admittedly, P.W. no.3, Vijay has no knowledge about the handwriting written on cheque Exh.138 and Stamp Papers at Exhs. 139 & 140 nor were prepared before him. v. The fact cannot be ignored that to prove the case, first it is required to be proved with the concrete evidence that Suspense amount of Rs.46,01,577.04 paise was initially in the custody of the accused persons. Because, one of the major ingredients i.e. entrustment of property is missing in the present case. If the entrustment or dominion over the property is proved then, it is required to be proved that the accused dishonestly misappropriated the property. Only on the bais of Suspense Account which is even doubtful, it cannot be said that offence is proved. vi. The facts cannot be even ignored that for near about 13 to 14 months all record pertaining to this case was in the possession of New Body of Bayer India Credit Co-operative Society, Thane and New Body has prepared the Accounts through Computer as there was incomplete Account, as same was not written till August, 1992 Even, in this Audit Report Exh.121 prior to 1990 period was also covered possibility of tampering of Record cannot be ruled out, because near about 13-14 months the record was in the custody of New Body. vii. It is also not proved on record that Dwarkaprasad Mishra and Dayanand N. Bhat have executed a cheque at Exh.138,139,140 in favour of Bayer India Company. Because no prosecution witness has deposed in the above way that the accused have executed a documents before them. Thus, inter alia in view of the above findings recorded by the learned Trial Court all the Accused were acquitted.
11. Analysis of the evidence on record inter alia demonstrate as follows:i. The offence alleged against the Accused is very serious where the allegation is that the Accused persons have misappropriated the amount of Rs.42,81,749/during the period of 1990 to 1993 i.e. 1/7/1990 to 31/3/1993. ii. The account register and some other material on record show that some evidence is available to support the offence alleged against the Accused. iii. However, the evidence on record also shows that the prosecution has failed to establish authenticity of the documents produced on record beyond reasonable doubt.
12. If the findings recorded by the learned Trial Court are analysed by re-appreciating the evidence on record, then it can be reasonably said that a possible view of the matter has been taken by the learned Trial Court. It is true that the case is very serious where the allegation is of misappropriation of about Rs.42,81,749/- during the period of 1990- 1993 i.e. 1/7/1990 to 31/3/1993, however, the various findings recorded by the learned Trial Court clearly show that the prosecution has failed to establish the case beyond the reasonable doubt and in any case benefit of doubt is required to be given to the Accused.
13. As discussed earlier as per the settled legal position the Appellate Court can reverse the Order of the acquittal of the Trial Court only on the touchstone of following principles:- A) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of the acquittal recorded by the Trial Court. B) If the view taken by the Trial Court is possible view, the Appellate Court shall not set aside the order of acquittal on the ground that another view is also possible. C) Appellate Court can interfere with the order of acquittal only if the Appellate Court comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the Accused was proved beyond a reasonable doubt and no other conclusion was possible.
14. This is not a case where only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the Accused was proved beyond the reasonable doubt and no other conclusion was possible. If various findings recorded by the learned Trial Court are analysed by re-appreciating the evidence on record then it is clear that the view taken by the learned Trial Court is a possible view. The learned Trial Court has assigned very elaborate reasons for recording conclusion of the acquittal. The learned Trial Court has inter alia given benefit of doubt to the Accused. In the facts and circumstances of this case, it cannot be said that the view taken by the learned Trial Court is not possible view of the matter. In any case, it cannot be said that by reappreciating the evidence on record it can be said that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the Accused was proved beyond a reasonable doubt and no other conclusion was possible.
15. Accordingly, there is no substance in the Criminal Appeal and the same is dismissed, however, with no order as to costs. [MADHAV J. JAMDAR, J.]