Gujarat High Court
Sharifbhai Chakubhai @ Hasambhai … vs State Of Gujarat on 6 July, 2026
NEUTRAL CITATION
R/CR.A/1334/2017 JUDGMENT DATED: 06/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1334 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
✔
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SHARIFBHAI CHAKUBHAI @ HASAMBHAI SAKARYANI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR BJ TRIVEDI(921) for the Appellant(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Appellant(s) No. 1
MR A A ZABUAWALA(6823) for the Opponent(s)/Respondent(s) No. 2
MS JYOTI BHATT, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 06/07/2026
JUDGMENT
1. The appellant – original complainant has preferred this appeal
under Section 378(1)(3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Code’ for short) against the judgment
and order dated 04.07.2017 passed by the learned 5 th Additional
Sessions Judge, Rajkot (hereinafter be referred to as “the Appellate
Court”) in Criminal Appeal No.6 of 2016, whereby the Appellate Court
has acquitted the original accused (respondent No.2 herein) from the
offence punishable under Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as the ‘NI Act‘ for short) by
reversing the judgment and order of conviction and sentence dated
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07.06.2016 passed by the learned Additional Chief Judicial Magistrate,
Dhoraji (hereinafter be referred to as “the trial Court”) in Criminal
Case No.307 of 2012.
2. Short facts of the prosecution case are that the complainant
was residing in Dhoraji town. He owns a commission agency firm and
was also the owner of agricultural land and the respondent-accused
owns a shop known as “Shriji Park” at Dhoraji and maintained Savings
Account No.1115 with Citizens Co-operative Bank Limited, Dhoraji
Branch. That, There existed a close friendship and business
relationship between the complainant and the respondent-accused.
Owing to this relationship, the respondent-accused frequently
borrowed money from the complainant for his business requirements
and family responsibilities and, on earlier occasions, repaid the
amounts borrowed. The respondent-accused was carrying on his
business at Ahmedabad. In the year 2011, when the respondent-
accused was in need of funds, he contacted the complainant and
requested financial assistance. Acting on the said request, the
complainant, from time to time up to December 2011, sent an
aggregate sum of Rs. 7,00,000/- to the respondent-accused through
K. Ratanlal Angadiya. The said amount comprised the income earned
from the complainant’s agricultural produce and the amount received
by the complainant’s wife from her parental family, which had been
collected and kept by her. Towards repayment of the said amount, the
respondent-accused issued Cheque No. 0135514 dated 01.04.2012
for a sum of Rs. 7,00,000/- drawn on his Account No. 1115 maintained
with Citizen Co-operative Bank Limited, Dhoraji Branch, in favour of
the complainant. The complainant presented the said cheque for
encashment through his banker, Rajkot District Co-operative Bank
Limited, Sahyog Branch, Dhoraji. However, the cheque was
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dishonoured and returned unpaid vide Return Memo dated
04.04.2012 with the endorsement “Funds Insufficient.” Thereafter, the
complainant, through his advocate, issued a statutory legal notice
dated 07.04.2012 to the respondent-accused demanding payment of
the cheque amount. The said notice was duly served upon the
respondent-accused on 10.04.2012. Despite receipt of the notice, the
respondent-accused neither complied with the demand nor replied to
the notice within the statutory period. Accordingly, the complainant
filed the complaint under Section 200 of the Code of Criminal
Procedure.
2.2 After recording the complainant’s verification statement and
considering the documents produced, the trial Court found sufficient
grounds to proceed and issued process (summons) against the
respondent-accused. Thereafter, the accused appeared before the
trial Court, and the case proceeded further, whereby, the trial Court
vide judgment order dated 07.06.2016 ordered conviction and
sentence to simple imprisonment for one year and fine of Rs.10,000/-.
Being aggrieved by the same, the respondent-accused preferred
Criminal Appeal No.6 of 2016 before the Appellate Court, whereby,
the Appellate Court vide impugned judgment and order dated
04.07.2017 acquitted the respondent-accused from the charges
levelled against him.
3. Being aggrieved by and dissatisfied with the aforesaid judgment
and order of acquittal the appellant – original complainant has
preferred this appeal.
4. Heard Mr.B.J. Trivedi, learned counsel for the appellant – original
complainant, Ms.Jyoti Bhatt, learned Additional Public Prosecutor for
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the respondent – State of Gujarat and Mr.A.A. Zabuawala, learned
counsel for the respondent – accused at length.
5. Mr.Trivedi, learned counsel for the appellant – original
complainant has submitted that the impugned judgment and order of
acquittal passed by the Appellate Court is contrary to the provisions of
law, facts and circumstances of the case and therefore, the same
deserves to be quashed and set aside. He has submitted that the
Appellate Court, without appreciating the fact that it has not recorded
any findings of its own, has interfered with the findings recorded by
the trial Court, and such interference is perverse. He has submitted
that there was no denial on the part of the respondent-accused that
he had issued the cheque and that the signature appearing on the
disputed cheque was also his. Therefore, once these facts were duly
proved by the appellant-complainant before the trial Court, the trial
Court rightly appreciated the evidence and passed the order of
conviction and sentence. However, without appreciating these
material facts, the Appellate Court, while reversing the order of
conviction and acquitting the respondent-accused, has committed a
serious error of law as well as of facts. He has further submitted that
the respondent-accused did not give any reply to the legal notice
issued by the appellant and, therefore, a presumption is required to
be drawn against the respondent-accused that he had issued the
cheque towards a legally enforceable debt. He has further submitted
that the respondent-accused has not adduced any evidence to
establish that there was no legally enforceable debt and, therefore,
the trial Court rightly drew the statutory presumption against the
respondent-accused as he has not rebutted the presumption in view
of the ratio laid down by the Hon’ble Supreme Court in case of T.
Vasanthkumar Vs. Vijaya Kumari, reported in AIR 2015 SC 2240. In
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support of his submissions, learned counsel Mr.Trivedi has referred
and relied upon the following decisions :
[I] Ashok Singh Vs. State of Uttar Pradesh & Anr.; Ravindra Pratap
Singh, reported in [2025] LawSuit (SC) 444;
[II] M/s. Kalamani Tex & Anr. Vs. P. Balasubramanian, reported in
[2021] 5 SCC 283;
[III] Bir Singh Vs. Mukesh Kumar, reported in [2019] 4 SCC 197;
[IV] T. Vasanthakumar Vs. Vijayakumari, reported in [2015] 8 SCC
378;
[V] Dashrath Rupsingh Rathod Vs. State of Maharashtra & Anr.,
reported in [2014] 9 SCC 129.
5.1 In view of above, learned counsel Mr.Trivedi has urged that the
present appeal be allowed and the impugned judgment and order
passed by the Appellate Court be quashed and set aside and the
order passed by the trial Court convicting the respondent-accused be
confirmed.
6. Per contra, Mr.Zabuawala, learned counsel for the respondent-
accused has supported the impugned judgment and order and has
submitted that the Appellate Court has not committed any error of
law and fact in acquitting the accused from the charges levelled
against him. He has submitted that the ingredients of the offence
alleged against the accused are not proved beyond reasonable doubt
and, therefore, the Appellate Court has rightly acquitted the accused
as the complainant has failed to prove the charge levelled against the
accused. He has also submitted that there is no iota of evidence to
connect the accused with the alleged crime in question. He has
prayed to confirm the impugned judgment and order passed by the
Appellate Court and dismiss the present appeal as the same is not
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maintainable.
7. On perusal of the impugned judgment and order of acquittal
passed by the Appellate Court, the questions arise for determination
are as under:-
(1) whether the Appellate Court is justified in passing the
judgment and order of acquittal.
(2) whether the Appellate Court has rightly appreciated the
evidence led by the prosecution in recording the reasons.
(3) whether there is any illegality, irregularity or any perversity in
the impugned judgment and order of acquittal.
8. I have heard the learned counsel appearing for the respective
parties and perused the material placed on record. On a perusal of
the impugned judgment, it is evident that the first and foremost
requirement is that the complainant must establish the existence of a
legally enforceable debt. It is the case of the complainant that he had
advanced a sum of Rs.7,00,000/- to the present respondent and that
the said amount was sent through K. Ratanlal Angadiya Service,
Ahmedabad. According to the complainant, the said amount was
received by one Bharatbhai. However, there is not even a whisper
about the said Bharatbhai either in the complaint or in the statutory
notice issued by the complainant. Further, during the cross-
examination of the complainant, he admitted that he was not in
possession of any receipt evidencing the alleged transaction and that
he did not wish to produce any receipt or other documentary evidence
in support thereof. He also declined to have the cheque sent for
scientific examination to establish that the writings on the cheque,
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apart from the signature, were in the handwriting of the respondent.
He further admitted that he was not able to produce any document to
show how he had arranged the amount of Rs.7,00,000/- or that the
said amount had been sent through Angadiya. Thus, the first and
foremost requirement under Section 138 of the Negotiable
Instruments Act, namely, the existence of a legally enforceable debt,
has, in my opinion, not been established by the complainant.
Therefore, the Appellate Court has rightly appreciated the evidence
on record and recorded an order of acquittal in favour of the
respondent. Further, the appellant-complainant has contended that
one Bharatbhai had accepted the amount on behalf of the
respondent. However, it was incumbent upon the appellant-
complainant to adduce cogent evidence to prove that Bharatbhai had
received the said amount on behalf of the respondent. In the absence
of such evidence, the complainant has failed to establish the
existence of a legally enforceable debt against the respondent. The
Appellate Court has, therefore, rightly disbelieved the complainant’s
case on this aspect. It is also pertinent to note that, unless and until
the appellant proves that the amount was paid to the respondent and
that the respondent accepted the said amount, the question of
issuance of the cheque or whether it was signed by the respondent
does not arise. The appellant has failed to prove before the Appellate
Court that the amount was received by Bharatbhai on behalf of the
respondent. Furthermore, nothing has come on record in the
appellant’s evidence to establish that Bharatbhai received the amount
on behalf of the respondent. The next question that arises is whether
the cheque was issued towards a legally enforceable debt and
whether it was signed and all the particulars therein were filled up by
the respondent. In this regard, the appellant categorically refused to
send the cheque to a handwriting expert for examination to
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determine whether the cheque, including all the particulars other than
the signature, was written and filled up by the respondent. On the
contrary, the appellant specifically declined such examination and, in
his cross-examination, expressly denied the suggestion that the
cheque be sent for handwriting analysis. This conduct gives rise to the
inference that the remaining particulars in the cheque were filled in
by the appellant himself. The cross-examination of the complainant is
reproduced hereunder :
“(9) It is true that the name of the firm acting as a commission agent for
raw cotton is not mentioned in the complaint and the affidavit of the
examination-in-chief. The name of the raw cotton firm is Ahmed Raza. The
address of the raw cotton firm was previously at Phulwadi, and currently, it
is at Galaxy Chowk. It is true that I have not given any money to the
accused from the account of firm. I own 1.75 bighas of land at Jhalansar,,
and I also cultivate other land. I cultivate the lands of 15 or 25 bighas,
whichever land I can get on a sharecropping basis. It is true that I have not
produced any revenue record for my 1.75 bighas of agricultural land
located at Jhalansar. I do not wish to produce the revenue record of the
agricultural land that is in my name at Jhalansar. It is not true that I am
refusing to produce the revenue record because there is no agricultural
land of my ownership at Jhalansar. It is true that according to my complaint
and affidavit, Kishorbhai is my close friend and well-wisher. I have been
friend of Kishorbhai for the last fifteen years, and I know him well. It is true
that I have been acquainted with Kishorbhai and his family for the last
fifteen years. I have seen and I know about the shop of Kishorbhai named
‘Shreeji Pan’. It is true that it is mentioned that Kishorbhai is doing business
in Ahmedabad. It is true that there is no clarification in the complaint or the
affidavit regarding what exact business Kishorbhai does in Ahmedabad. I do
not know under what name, of what nature, and at which specific place
Kishorbhai conducts his business in Ahmedabad. In the year 2011, at the
time of the transaction mentioned in the complaint, my mobile number was
9638042474. That mobile number is still active today. I do not remember
from which number Kishorbhai had called me. It is true that I have
mentioned the about ‘K. Ratanlal Angadia’ (tranditional courier and money
transfer service) in my complaint and examination-in-chief. I have sent
money three times in installments through K. Ratanlal Angadia. The witness
voluntarily states that he had sent money three times and then sent it
again. I do not remember right now how much money was sent through K.
Ratanlal for the first time. Second time one lakh fifty thousand rupees were
sent. The third time, one lakh rupees were sent. I do not remember if I sent
money through Ratanlal after that. I do not know where Kishorbhai lives in
Ahmedabad. Kishorbhai stays whith his cousin.
Question: To which address did you send the money to Kishorbhai
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through K. Ratanlal Angadia?
Answer: I sent it to Bapunagar in Ahmedabad. The witness voluntarily
states that Bharatbhai used to come and collect the money.
(10) It is true that no receipt or acknowledgment regarding the money
sent through K. Ratanlal Angadia has been produced in this case. I do not
wish to produce any receipt or acknowledgment from the K. Ratanlal
Angadia firm. I do not remember the exact date and month of the first
transaction made prior to the last transaction in December 2011. I do not
remember the exact date of the last transaction in December 2011.
Question: Did you keep any record of the Rs. 7 lakhs that you gave to
Kishorbhai in installments?
Answer: Kishorbhai told me that the account has reached up to Rs. 7
lakhs, so he would come to my house and drop off a cheque
for Rs. 7 lakhs. Therefore, he came to my house and handed
over the cheque.
(11) He came and gave me this cheque in December 2011. I am being
shown the cheque at Exhibit-17; upon looking at which I state that
Kishorbhai had come to my house in December 2011 and handed it over to
me. When this cheque was given to me, the date, my name, and the
amount in words and figures were already written on the cheque, and the
signature was made in my presence. The cheque at Exhibit-17 was given to
me at the end of December 2011; I do not remember the exact date. It is
not true that Kishorbhai did not sign the front and back of the cheque at
Exhibit-17 in my presence in December 2011. I do not wish to have a
scientific examination conducted to determine the exact date on which this
cheque was written. I do not agree to Kishorbhai wish to conduct a scientific
examination at his own expense to determine the age of the writing on the
cheque at Exhibit-17. It is not true that the cheque at Exhibit-17 was a
blank cheque. To the question that the date, name, and amount in words
and figures on the cheque at Exhibit-17 are not in the handwriting of
Kishorbhai, my answer is that he had brought the cheque already filled out,
therefore I do not know. I do not wish to obtain the opinion of a handwriting
expert regarding the name, date, and amount in words and figures written
on the cheque. However, I do wish to obtain the opinion of an expert
regarding his signature on Exhibit-17. It is not true that the cheque at
Exhibit-17 is a forged cheque, and that this is the reason why I do not wish
to obtain the opinion of handwriting.”
9. The appellant-complainant has also deposed that the
respondent was carrying on business at Ahmedabad; however, he was
not aware of the nature of the business, the name under which it was
being conducted, or the place where such business was situated. In
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fact, it was the specific case of the appellant that the respondent was
running a small shop at Dhoraji and not at Ahmedabad. Therefore, in
such circumstances, the basic fact stated in the statutory notice as
well as in the complaint has not been supported by any evidence as to
how the amount was sent to Ahmedabad instead of Dhoraji and who
had accepted the said amount. Furthermore, the person namely
Bharatbhai, who is alleged to have accepted the amount on behalf of
the respondent, has neither been examined as a witness nor has he
been shown as an accused by the appellant in the proceedings. It is
also specifically stated by the appellant that, on three occasions, he
had sent amounts to the respondent and that, on all three occasions,
the amounts were sent through K. Ratanlal Angadiya Service.
However, the amount of Rs.7,00,000/- was neither reflected in their
books of account nor did the appellant produce any documentary
evidence to establish the manner in which the said amount was sent,
particularly when it was allegedly paid in cash. In such circumstances,
the Appellate Court, after considering the submissions from paragraph
7 onwards, more particularly the question raised before the appellant,
dealt with the said issue in paragraph 10 of the impugned judgment.
The Appellate Court recorded a finding that the appellant had failed to
prove as to in what manner he had sent the amount of Rs.7,00,000/-
to the respondent. The Appellate Court also considered the statement
of the present respondent, particularly the findings recorded by the
trial Court and the answers given by the respondent in his statement
under Section 313 of the Cr.P.C. The Appellate Court observed that
there was a contradiction in the said statement and, therefore, the
trial Court had presumed that the respondent was guilty and liable for
the offence punishable under Section 138 of the N.I. Act. The
Appellate Court while considering the facts and submissions, has
referred the judgments of the Hon’ble Supreme Court in paragraphs
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12, 13 and 14 and has rightly passed the impugned judgment and
order of acquittal. In view of the above, I am of the opinion that the
Appellate Court has not committed any error of facts and law in
passing the impugned judgment and order and there is no any
illegality or any infirmity found in the judgment and order.
10. At this juncture, it would be appropriate to refer to the decision
of the Hon’ble Supreme Court rendered in case of Sanjabji Tari Vs.
Kishore S. Borcar, reported in 2025 (0) AIJEL-SC-75934 as well as
the decision of the High Court of Bombay rendered in case of
Tukaram Vs. Dileep & Ors., reported in 2024 BHC-AUG-10507,
wherein, it has been held and observed as under :
“9. Section 138 of the N.I. Act has three essential ingredients viz. ;
Firstly, that there is legally enforceable debt.
Secondly, that the cheque was drawn from account of bank for discharge in
whole or in part any debt or other liability which presupposes a legally
enforceable debt.
Thirdly, cheque so issued has been dishonoured.
Sections 118 and 139 of the N.I. Act make available statutory presumption.
However, wording of Section 139 explicitly shows that the said presumption
is rebuttable. Law is fairly settled that defence can rebut the presumption
even by preponderance of probabilities, rely on the evidence adduced by
the complainant or even available circumstances can be taken recourse to,
to rebut the presumption.”
11. It is well settled by catena of decisions that the an Appellate
Court has full power to review, re-appreciate and reconsider the
evidence upon which the order of acquittal is founded. However,
Appellate Court 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
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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 their innocence is further reinforced, reaffirmed and strengthened
by the Appellate Court.
12. Further, 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 lower Court. Further, while
exercising the powers in appeal against the order of acquittal, the
Court of appeal would not ordinarily interfere with the order of
acquittal unless the approach of the lower Court is vitiated by some
manifest illegality and the conclusion arrived at would not be arrived
at by any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are possible, the
Court of appeal would not take the view which would upset the
judgment delivered by the Court below. However, the Appellate Court
has a power to review the evidence if it is of the view that the
conclusion arrived at by the Court below is perverse and the Court has
committed a manifest error of law and ignored the material evidence
on record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out whether
the accused are connected with the commission of the crime with
which they are charged.
13. The scope and principles are enunciated by the Hon’ble Apex
Court in case of Chandrappa and others Vs. State of Karnataka
reported in (2007) 4 SCC 415, more particularly paragraph Nos.
42 and 43, which was subsequently re-affirmed by the Hon’ble Apex
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Court Rajesh Prasad Vs. State of Bihar and another, reported in
[2022] 3 SCC 471, wherein, the Hon’ble Apex Court has enunciated
the general principles in case of acquittal, more particularly in
paragraph No. 26 the general principles are set out by the Hon’ble
Apex Court based upon various decisions of the Hon’ble Apex Court.
Then in case of Babu Sahebagouda Rudragoudar Vs. State of
Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149,
the Hon’ble Apex Court has dealt with the similar issue, more
particularly, in paragraph Nos. 37 to 40. Hence, I am in complete
agreement with the findings recorded by the Appellate Court.
14. It is also worthwhile to refer to the recent decision of the
Hon’ble Supreme Court in the case of Ramesh vs. State of
Karnataka, reported in [2024] 9 SCC 169, wherein the Hon’ble
Supreme Court has held and observed in paras-20 and 21 as under:-
“20. At this stage, it would be relevant to refer to the
general principles culled out by this Court in Chandrappa
and others vs. State of Karnataka , regarding the power of
the appellate Court while dealing with an appeal against a
judgment of acquittal. The principles read thus:
“42. …. (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 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.
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Such phraseologies are more in the nature of “flourishes of
language” to emphasize 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.
21. In Rajendra Prasad v. State of Bihar, a three-Judge
Bench of this Court pointed out that it would be essential
for the High Court, in an appeal against acquittal, to clearly
indicate firm and weighty grounds from the record for
discarding the reasons of the Trial Court in order to be able
to reach a contrary conclusion of guilt of the accused. It
was further observed that, in an appeal against acquittal, it
would not be legally sufficient for the High Court to take a
contrary view about the credibility of witnesses and it is
absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject
their testimony. This was identified as the quintessence of
the jurisprudential aspect of criminal justice. Viewed in this
light, the brusque approach of the High Court in dealing
with the appeal, resulting in the conviction of Appellant
Nos. 1 and 2, reversing the cogent and well-considered
judgment of acquittal by the Trial Court giving them the
benefit of doubt, cannot be sustained.”
15. Considering the entire evidence on record, it clearly appears
that there is no credible evidence to connect the present accused with
the alleged crime and the evidence on record is not so convincing to
prove beyond reasonable doubt that the accused has committed the
alleged crime. Therefore, the accused cannot be convicted on the
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NEUTRAL CITATION
R/CR.A/1334/2017 JUDGMENT DATED: 06/07/2026
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evidence on record.
16. On perusal of the impugned judgment and order, it clearly
transpires that the Appellate Court has not committed any error of
fact and law in appreciating the evidence on record and in acquitting
the accused from the charges levelled against him. Even on re-
appreciation of the evidence, it clearly transpires that the prosecution
has miserably failed to prove the charge levelled against the accused
beyond reasonable doubt. Therefore, the impugned judgment and
order of the Appellate Court is sustainable and the present appeal is
liable to be dismissed.
17. In view of the above, the present appeal is devoid of merits and
it deserves to be dismissed. Resultantly, it is dismissed. The
impugned judgment and order of acquittal passed by the Appellate
Court is hereby confirmed. Bail bond stands cancelled. Record and
proceedings be sent back to the concerned Court forthwith.
(HEMANT M. PRACHCHHAK,J)
Dolly
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