Gopal Sarkar And Ors. vs Pashupati Ghosh

1. The appellants have been convicted by the High Court for an offence Under Section 379 of the Indian Penal Code The first appellant has been sentenced to pay a fine of Rs. 100/-and the others have been sentenced to pay a fine of Rs. 25/-each.

2. The appellants were prosecuted before the Magistrate, Second Class, for an offence Under Section 379 of the Penal Code, in that they cut and carried away the crops standing on two plots bearing Nos. 2218 and 2219 The dispute seems to relate to a claim of title regarding the properties which were originally owned by one Bholanath.

3. The appellants denied having committed any offence. Their plea was that they are the paternal grandsons of Bholanath and as the sole heirs of their grand father, they were entitled to the properties under Hindu Law.

4. The Magistrate, after a consideration of the evidence produced before him came to the conclusion that though the competing parties were claiming title to the property, the claim of the appellants must, must in the circumstances, he considered to be a bona fide one. It is the further view of the Magistrate that the case involves an intricate dispute which could be properly tried and adjudicated upon only by a Civil Court. The Trial Court disbelieved the evidence adduced on the aside of the complainant and in the end acquitted the appellants.

5. The complainant carried the matter in appeal before the Calcutta High Court, which by its judgment dated September 8, 1967, reversed the order of acquittal passed by the Magistrate & in turn has convicted the appellants.

6. Mr. S.C. Mazumdar, learned Counsel for the appellants, referred us to the reasons given by the Magistrate for recording an acquittal in his client's favour. The Counsel pointed out that the main ground on which the High Court interfered with the order of acquittal was that the Trial Court has not at all considered the evidence adduced by the complainant. This ground, according to the Counsel is not sustainable, as the Magistrate has considered the entire evidence.

7. In our opinion, this contention of the learned Counsel is well founded, because a reference to the judgment of the Magistrate shows that there has been a very elaborate and careful consideration of the evidence adduced by the complainant. It is after such a consideration that the magistrate has not chosen to believe that evidence. Further the trial Court has also given reasons for not accepting that evidence. The High Court also seems to be of the view that it may be a case of bona fide dispute regarding title to the property but nevertheless was not prepared to uphold the order of acquittal.

8. The complainant has not appeared before us to support the order of the High Court. The High Court itself recognises that it is a settled practice not to interfere with orders of acquittal except in exceptional cases. The main reason given by the High Court for interfering with the order of acquittal was that there was no consideration by the magistrate of the evidence adduced on the side of the complainant. We have already pointed out that this reason given by the High Court is erroneous.

9. We are not satisfied that this was a case where the High Court should have interfered with the order of acquittal passed by the Trial Court on an appreciation of the evidence placed before it. We are further not impressed with the reasons given by the High Court for reversing the order of acquittal.

10. In the result the judgment of the High Court is set aside and the appeal allowed. The order of the Trial Court acquitting the appellants will stand restored.