TMI Blog2016 (7) TMI 1194X X X X Extracts X X X X X X X X Extracts X X X X ..... an irregularity and not an illegality so as to make it culpable. This fact was confirmed even by the Sales Tax Department, Goa and the mistake was also rectified. The learned Trial Court has rightly come to the conclusion that while supplying ten C-Forms one out of that for the year 1996-1997, 1997-1998 was for two financial years but this being an irregularity was not sufficient to hold the accused No.2 and 3 guilty for the offence punishable under Section 420/34 IPC. On re-evaluation of the evidence and the finding recorded by the learned Trial Court, the grounds on which the learned Trial Court has based its conclusion, the order of acquittal does not warrant any interference by this Court in exercise of appellant jurisdiction. - CRL. A. 240/2013 - - - Dated:- 22-7-2016 - PRATIBHA RANI, J. Appellant Through: Appellant in person. Respondents Through: Mr.Rajesh Mahajan, ASC for the State/R-1 with Ms.Parul Jamwal, Advocate with SI Kishan Lal, PS Tilak Marg. Mr.Manjeet Singh, Senior Advocate instructed by Mr.Tarjeet Singh and Mr. Yogendra Kumar Verma, Advocates for R-2 to R-4. PRATIBHA RANI, J. Crl.M.A.No.10612/2013 1. Exemption allowed, subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the appeal, Respondent Nos. 2 to 4 will furnish their respective personal bond in the sum of ₹ 25,000/- with two sureties each of the like amount, subject to the satisfaction of the Registrar General of this Court within six weeks. 5. On 17.07.2013 while passing order on Crl. M.A. No.10450/2013 for reduction of sureties, this Court modified the bail order dated 18.02.2013 by directing reduction of surety from two to one. The bail bonds thereafter have been furnished and accepted by the Registrar General. 6. Since the respondents No.2 to 4 herein were acquitted by learned Trial Court, while granting leave to appeal, the bail order was passed on 18.02.2013 which was subsequently modified on 17.07.2013. 7. The order granting bail stands complied with. Hence, the instant application deserves dismissal. 8. The application is accordingly dismissed. Crl.M.A. No.10611/2013 Crl.M.A.No.12540/2014 1. Both these applications have been taken up together for disposal as the prayers made in the two applications are identical i.e. for procuring presence of respondents No.2 to 4 herein for purpose of recovery of forged seals pertaining to FIR No.240/2002 PS Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he investigation and would get seal and counterfoils S.T.Forms recovered. Considering the submissions made, it is ordered that the applicant shall join the investigation as and when called to by the I.O. and shall co-operate in the recovery of aforesaid articles/objects. Adjourned for recovery of components/objects and for disposal of the application for 16.08.02. Till then the applicant be not arrested. 7. The subsequent proceedings dated 16.08.2002, 26.09.2002, 05.10.2002, 17.10.2002, 26.10.2002, 16.11.2002, 13.11.2002, 27.11.2002 record that part of the case property i.e. ST-Forms were recovered and the applicant had joined the investigation till his application seeking anticipatory bail was dismissed on 09.12.2002 by passing the following order:- 9.12.02 Present : Sh.L.C.Jain APP for State alongwith IO SI Manoj Kumar. Complainant Ravinder P.Kumar is present in person. Sh.G.S.Sharma Adv. for applicant. Heard. On facts as submitted, there is no ground for anticipatory bail. The application is dismissed. 8. The submissions made by learned counsel for the petitioner while arguing on the application seeking anticipatory bail cannot be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered opinion that the High Court ought to have decided the matter on merit as the right of appeal became available to the complainant only after the new amendment of the Code of Criminal Procedure which came into effect on 31.12.2009. In view of the above, the impugned order dated 16.9.2010 passed by the High Court is hereby set aside and the appeal filed by the complainant is restored to its original number to be decided on merits by the High Court. The appeal is allowed accordingly. 6. Thereafter leave to appeal was granted by this Court on 18th February, 2013 and the leave petition was registered as Criminal Appeal 240/2013. 7. LCR has also been requisitioned and perused. The appellants and the respondents in addition to their oral submissions have filed written synopsis. 8. The contentions made by the appellant/complainant are: (i) The offence of forgery with intent to cheat the appellant and thereby causing loss to him has been proved from the various Court orders which can neither be over-ruled nor defended after this appeal has been admitted on directions of the Supreme Court. (ii) The purpose of cheating was to cause loss to the Sales-Tax Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C-Forms in a jumbled form which was modified by them as the same was issued inadvertently. The investigating officer (PW-8) also received a letter dated January 22, 2003 from Goa Sales Tax Commissioner to this effect. (ix) The letters Ex. PW-1/D and Ex. PW-1/E dated 1st July, 2001 written by the complainant do not mentioned any forgery being committed. 10. I have considered the rival contentions and carefully gone through the Trial Court Record. 11. In brief the case of the prosecution as detailed in the criminal complaint is that the appellant had business dealings with the respondents. The appellant was carrying on business of manufacturing TV cabinets as sole Proprietor of M/s R.K.Enterprises. He was also Managing Director of Company M/s Arcon Electroplast Pvt. Ltd. 12. The respondents herein were common Directors in the companies namely M/s Adige Computer Services Pvt. Ltd., M/s Sparrow Technologies Pvt. Ltd. and M/s Sparrow Micro Electronics Pvt. Ltd. During business transactions it was agreed that the appellant herein would be provided Forms ST-35 and C Forms in respect of the supplies made to the respondents. 13. The grievance of the appellant is that For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (i) First incident pertaining to offence relating to Forms ST-35 (ii) Second incident regarding supply of C-forms in jumbled manner and not financial year wise. 19. After considering the testimony of the material witnesses especially PW-1 Ravinder P. Kumar, PW-3 R.P. Sharma who was the Sales-Tax Officer at the relevant time, PW-5 Anuj Garg, Charted Accountant of the company, PW-6 Dayatri Dass, Accountant of the complainant, the learned MM had acquitted inter alia on following grounds: In respect of first incident i.e. charge pertaining to forged seals and signature on the counter foil of Forms ST-35, the learned Trial Court noted as under:- (i) PW-1, Sh.Ravinder P.Kumar, the complainant was having office at C-3, Manak Vihar Extension, Tihar Village, New Delhi-110018 though registered office was at 38/17 East Patel Nagar, New Delhi-110008 as mentioned on the letter exhibit PW-1/E written by the complainant (PW-1) himself. The seals on the counter foil were also having the address of C-3, Manak Vihar where complainant/PW-1 was having his office. (ii) Signature on exhibit PW-1/1 to PW-1/8 alleged to be by the accountant, PW-6, Dayatri Dass were sent for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny intention to commit cheating or forgery. These steps were taken consequent and subsequent to the request received vide communication dated 7th December, 2001. (x) The fact that PW-2, the complainant himself had written a letter on 7 th December, 2001 addressed to the respondents/accused in presence of the STO, at that stage he was not aggrieved with the alleged forgery on counterfoils otherwise he would have lodged a complaint instead of participating in the procedure for issuance of duplicate Forms ST-35. (xi) Duplicate Forms ST-35 were issued by the Sales Tax Office leaving both the parties satisfied on the issue of non-supply of Forms ST-35 without causing loss to the exchequer. Thus, giving benefit of doubt all the respondents were acquitted of the charges under Sections 467/468/471/420 IPC read with Section 120-B/34 IPC relating to counter foils of Forms ST-35 observing that conclusively it cannot be said that stamp and signature were forged. 20. In respect of the charge referred to as second incident relating to issuance of invalid C-forms, learned Trial Court has acquitted for the following reasons:- (i) The parties were having business dealings with ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offence punishable under Section 420/34 IPC by any of the accused person. 22. The scope of interference by Court of Appeal against an order of acquittal has been examined by the Hon'ble Supreme Court in catena of judgments. In Muralidhar @ Gidda and Anr. Vs. State of Karnataka, MANU/SC/0494/2016 noting the principals laid down in earlier decisions as early as 1951, in para no. 12 it was held as under: 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu v. State [MANU/SC/0076/1951 : AIR 1954 SC 1], Madan Mohan Singh v. State of U.P. [MANU/SC/0162/1954 : AIR 1954 SC 637], Atley v. State of U.P. [MANU/SC/0102/1955 : AIR 1955 SC 807], Aher Raja Khima v. State of Saurashtra [MANU/SC/0040/1955 : AIR 1956 SC 217], Balbir Singh v. State of Punjab [MANU/SC/0101/1956 : AIR 1957 SC 216], M.G. Agarwal v. State of Maharashtra [MANU/SC/0117/1962 : AIR 1963 SC 200], Noor Khan v. State of Rajasthan [MANU/SC/0083/1963 : AIR 1964 SC 286], Khedu Mohton v. State of Bihar [MANU/SC/0139/1970 : (1970) 2 SCC 450], Shivaji Sahabrao Bobade v. State of Maharashtra [MANU/SC/0167/1973 : (1973) 2 SCC 793], Lekha Yadav v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court. 23. The main thrust of the appellant to seek conviction of the respondents No.2 to 4 is on the admission made at the stage of seeking anticipatory bail on behalf of the respondent No.2, T.R.Biyani by his counsel that he would get seal and counterfoils, S.T.Forms recovered, claiming it to be an admission on oath and sufficient to convict them. The orders dated 13.08.2002 and 09.12.2002 have been extracted in para 6 while disposing of CM Nos.10611/2013 12540/2014 24. Suffice it to record here that submission made by learned counsel for the respondent No.2/accused T.R. Biyani at the stage of anticipatory bail was with a prayer to seek protection against arrest assuring to join and cooperate in the investigation is neither admission nor co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for attention of Mr. T.R. Biyani, Director, regarding non-receipt of ST-35 forms pertaining to the year 199798 1998-99. The relevant contents of letter Ex.PW1/D are extracted as under:- 7/12/01 You have informed us before the STO ward 104 that you have issued the following forms:- Form No. Year Amount 05AA 689785 1997-98 361900/- 05AA 967100 1998-99 397427/- Thanking you, Sd/- Director for M/s Arcon Electroplast Pvt. Ltd. 29. The letter exhibit PW-1/E dated 7.12.01 is on the letter head of R.K.Enterprises sole proprietorship concern with both the addresses i.e. of East Patel Nagar as also of Manak Vihar. Contents of letter Ex.PW-1/E is also identically worded as letter Ex.PW1/D given by him to the STO ward No.104 except the different in details of Forms ST-35 and the six transaction with their amount. This communication has been sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said 8 ST-35 forms T.R.Biyani Proprietor M/s. Adige Computer Service had given due declaration in form ST-2B EXPW3/B to EXPW3/3. In view of the above said declaration STO office issued fresh ST-35 forms for utilization in the succeeding years. The said fresh ST-35 forms were issued by me and issue sheet no.99 in that respect is EXPW3/F. These exhibits are available in the sale tax file which has been retained by the Court. On 7.12.01 T.R.Biyani filed an indemnity bond along with NCR regarding the loss of aforesaid ST-35 forms. The indemnity bond and the photocopy of the NCR, both the documents are collectively EXPW3/G. Thereafter the loss of aforesaid ST-35 forms was circulated to all the STO offices through computer. 31. The conclusion by given by the FSL on the questioned documents marked Q-1 to Q-8 and the specimen writing of T.R.Biyani as well as English signature, S-4 to S-7 of the Daytri Dass, Accountant of the complainant, PW-6 is to the following effect:- Considerable time and labour has been spent for examination of questioned writings, short signatures, marked Q-1 to Q-8 with the specimen writings marked S-1 to S-3 but it has not been possible to express any opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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