TaxTMI 
TaxTMI 
2021 (1) TMI 1320
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....o have appeared for respondent no.1-original applicant when the Interim Application taken out by respondent was heard. The court sherestedar informs me that Mr. Venegaonkar had not appeared that day but his junior had appeared but gave appearance of Mr. Venegaonkar. 2 This is an appeal impugning an order and judgment dated 27-1-2004 passed by LearnedChief Judicial Magistrate, Diu, acquitting the accused for the offence punishable under Section 406 (punishment for criminal breach of trust), Section 407 (criminal breach of trust by carrier etc.), Section 468 (forgery for purpose of cheating), Section 477 (fraudulent cancellation, destruction etc., of will, authority to adopt or valuable security ) and Section 477A (falsification of accounts)....
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.... are panch witnesses. P.W.-1 turned hostile and stated that he was not called by the police nor he has participated in any panchnama and did not even identify his signature on the spot panchnama. P.W.-2 is a stock panch witness who in his cross-examination states that he has experience in drawing panchnamas and must have conducted / recorded about 4 to 5 panchnamas. Therefore, the evidence of P.W.-2 also is not reliable. P.W.-3 to P.W.-7 are all employees of IOCL. P.W.-8 is State Bank of India employee. P.W.-9 is the one who lodged the FIR and filed the charge sheet. P.W.-10 and P.W.-11 are the Investigating officers. 8 As regards DCR (Daily Collection Report) Nos.1 and 26, the same has been explained by accused. So far as the remaining t....
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....80, 85 and 93, even assuming for the sake of argument accused had given them without an approval of IOCL, IOCL has accepted the cheques of Jay Murlidhar Petroleum. Just because the cheques given by Jay Murlidhar Petroleum were dishonoured, does not mean accused has committed criminal breach of trust or committed forgery. It looks like IOCL having granted credit facility to Jay Murlidhar Petroleum have made accused a scapegoat because cheques given by Jay Murlidhar Petroleum were dishonoured. Trial Court has also explained in paragraph 23 why DCRs relied upon by prosecution were not admissible in evidence. 9 Moreover, when allegations of prosecution is that accused has misappropriated the value of 92 barrels of lub, appellant ought to have ....
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....ilities of the printouts of the DCRs being tampered with. P.W.-4 says in his testimony that he did not verify whether accused has sold barrels and received payment. P.W.-4 has not produced the cash receipt for DCR Nos. 80, 85 and 93 before the police. P.W.-4 says he does not remember whether requisition was made by DOLD operator in writing and he did not examine the entire file of 5 DCRs. P.W.-4's answers I find, were rather evasive. 11 In the circumstances, having considered the entire evidence, there is not even an iota of evidence to show that accused converted the property entrusted to him by IOCL for his own use and committed criminal breach of trust and the charge of offence under Section 408 of IPC fails. For the reason of non admis....
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....d by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when : i) The trial court's conclusion with regard to the facts is palpably wrong; ii) The trial court's decision was based on an erroneous view of law; iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; iv) The entire appr....
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....f acquittal passed in their favour by the Trial Court. The Apex Court in Ramesh Babulal Doshi V/s. State of Gujarat 1996 SCC (cri) 972 has held that if the Appellate Court holds, for reasons to be recorded that the order of acquittal cannot at all be sustained because Appellate Court finds the order to be palpably wrong, manifestly erroneous or demonstrably unsustainable, Appellate Court can reappraise the evidence to arrive at its own conclusions. In other words, if Appellate Court finds that there was nothing wrong or manifestly erroneous with the order of the Trial Court, the Appeal Court need not even re-appraise the evidence and arrive at its own conclusions. 11 With the assistance of Learned APP Ms Malhotra, I have considered the ev....