K.P. Land & Financial Ltd. v. State of Uttarakhand

representation on behalf of the appellant/applicant. Sri Amit Bhatt, Addl. GA for the State is present. I have perused the entire material available on record. This appeal, preferred u/s 378(4) of Code of Criminal Procedure, 1973 by the complainant/appellant, is directed against the judgment and order dated 22.6.2009 passed by the Additional CJM II, Dehradun in Crl. Case No.458/2008, K.P. Land & Finance Ltd. Vs. Sachin Nagaliya. In brief the case of the appellant/complainant is that he is the owner of Neelkanth Shopping Plaza, 43 Rajpur Road, Dehradun and the respondent no.2 had purchased a shop from the complainant/appellant in the said complex. The facilities, which were promised to be provided to the shopkeepers, were not provided by the appellant, hence the respondent no.2 moved an application to the Vice Chairman of MDDA, Dehradun and had made allegations against the appellant raising serious and false charges against him. It was also stated that the respondent no.2, deliberately knowing that due to this act, that it would defame the 2 appellant company and his integrity would be decreased, intentionally made false allegations against him. In the trial court, the only witness was examined as PW1 is the complainant/appellant himself, who has stated that the allegations made against him in the complaint are wrong and frivolous and they have been made just to defame his social respect in the society. In the defence, the accused had filed documents before the trial court. He also filed a newspaper cutting dated 13.5.2006 in which it was stated that as per the order of District Magistrate, SDM/City Magistrate raided the shop of the appellant complex and found the irregularities being committed by the appellant/complainant. One document was also filed by the respondent/accused in the trial court which shows that the District Magistrate had written a letter to the Vice President MDDA on 22.5.2006 informing about the irregularities being committed in the appellant complex by the appellant. Neither the fire extinguishing facility was being provided nor any water facility or toilet or other necessary facilities was being provided by the appellant in the shopping complex, which were promised by the appellant to the shopkeepers at the time of selling of the shops. On the basis of the evidence adduced before it, learned trial court had come to a conclusion that on the basis of the irregularities being committed by the appellant/ complainant, the respondent/shopkeeper had only made a complaint the higher authorities to remove irregularities being committed and his intention was not at all to defame him. Even no other oral or documentary evidence was produced by the appellant to support his case and even not a single witness has been examined which could have strengthened the case of the appellant. 3 On a perusal of the judgment and order passed by the trial court, I do not find any illegality or irregularity committed by the trial court in acquitting the respondent. The judgment and order dated 22.6.2009 passed by the trial court is correct and justified as per the record available with the trial court. The order is perfectly justified as per law. Further, it is settled law that where two views are possible and one of the views is also possible which was taken by the trial court, then the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance is placed on paras 7 and 8 of a judgment rendered by Hon’ble Supreme Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which read as under:-

#7. The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do no, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible.

#8. We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, 4 therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be released forthwith if not required in connection with any other case. On the basis of the evidence discussed above, I am of the considered view that when one view is also possible as the view taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the view taken by the trial court must be accepted. Therefore, there is no reason to disagree with the view taken by the trial court on the basis of the evidence discussed above and, therefore, the prosecution has not able to prove its case against the respondents beyond reasonable doubt. Thus, from the evidence as discussed above, the prosecution has utterly failed to prove its case beyond reasonable doubt against the respondent/accused for the offences under Section 500 IPC and the trial court was absolutely correct and justified in acquitting the respondent as above discussed. After considering entire circumstances of the case and on perusal of the judgment and order passed by the trial court, I am of the view that the there is no ground to grant leave to appeal. Therefore, the leave to appeal is refused. Leave to appeal application is dismissed. Consequently, the appeal is also dismissed. June 25, 2010 Rajeev Dang (Dharam Veer, J.)