Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment ..1.. C.C. No.759/PW/2018
Received on : 21.05.2018
Decided on : 08.01.2019
Duration : 0 M 7 M 17 D
Exh 14
IN THE COURT OF THE ADDL.CHIEF METROPOITAN MAGISTRATE,
9TH COURT, BANDRA, MUMBAI
JUDGMENT U/SEC. 355 OF THE CR. P. C.
(a) Serial number of the case : 759/PW/2018
CNR No.MHMM18006092
2018
(b) Date of commission of the offence. : From 01.03.2018
to 07.04.2018
(c) Name of the complainant, if any, : The State (Mahim Police
Station, C.R. No. 141/2018)
(d) Name of the accused persons,
their parentage and residence
: Suraj Soumaiya Kevat
Age : 23 Yrs, Occ : Delivery
Boy,
R/o. : Room No. 511,
Prakashnagar Zopadpatti,
Beside Kalimata Temple,
Mahim (W), Mumbai
(e) Offence complained of or proved. : U/Sections. 408 of IPC
(f) Plea of the accused persons and
their examination, if any
: Accused pleaded not guilty.
(g) Final order : Accused is acquitted.
(h) Date of order : 08.01.2019
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ADVOCATES:
For the State : Ms. M.F. Pakajade , A.P. P.
For accused : Shri. Mota
J U D G M E N T
(Delivered on this day 08th day of January, 2019)
1. Accused prosecuted for the offences punishable U/Secs. 408
of IPC.
2. In support of case, prosecution has examined four witnesses
viz. Muktar Ali Ansar Ali Khan, (PW1) at Exh6, informant, Firdos
Parcy Vakil, (PW2), at Exh7, Investigating Officer Avinash Shelke
(PW3) at Exh9 and panch witness, Vinay Ramesh Amberkar (PW4) at
Exh12. Apart from oral evidence, prosecution relied on report at Exh8,
memorandum statement of accused at Exh10, seizure panchanama at
Exh11 etc.
3. Accused is undertrail, therefore case tried on top priority. I
have heard both sides at length. Now, I appreciate oral and
documentary evidence available on record.
4. Evidence of informant Firods (PW2) goes to show that he is
running Bharat Gas Agency at Mahim with the help of 30 workers in his
company. In the month of April, 2018, he received several complaints
from customers in respect of nondelivery of gas cylinder to consumer
by the accused. Sixteen gas cylinders were not delivered to customers
and he sold those gas cylinder in the open market. Therefore, he lodged
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Judgment ..3.. C.C. No.759/PW/2018
complaint as per Exh8. It is not say of informant Firdos that accused
was entrusted gas cylinder and he misappropriated the same for his
personal use by selling it in the open market. On the contrary,
informant during crossexamination specifically admitted that he
checked his daily stock of cylinder and no deficient cylinder found in
the stock. Therefore, there is deficient evidence in respect of
entrustment and misappropriation of cylinder.
5. Independent witness Muktar (PW1) stated that he
purchased four cylinders for Rs.2300/ each from the accused. The
customer remanded cylinder to him. Accused cheated to him. Evidence
of this witness is not in accordance with entrustment or
misappropriation. On the contrary, evidence of this witness discloses
that he purchased cylinder illegally without verifying documents and
consent of dealer. Hence, his evidence is not useful for prosecution.
6. Panch witness, Vinay (PW4) resiled from statement and
denied to know contents of memorandum panchanama at Exh10 and
seizure panchanama at Exh11. However investigating officer Avinash
(PW3) deposed contrary. His evidence discloses that he recovered
seven cylinders as per the statement of accused at Exh10 five from the
house of accused and two from friends of accused. He prepared seizure
panchanama as per Exh11. Both of these material witnesses are
deposing contrary to each other and their evidence in respect of seizure
of cylinders from the possession of accused is contradictory to each
other. Therefore prosecution failed to prove seizure of cylinder at the
instance of accused.
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7. On appreciating oral and documentary evidence on record,
it appears that customers have entrusted cylinder with accused, but no
customer has been examined by the prosecution to prove entrustment
and misappropriation. Informant has not entrusted any cylinder with
accused which he misappropriated. Prosecution also failed to prove
seizure of cylinder from the possession of accused. In the result,
prosecution utterly failed to prove the case beyond all reasonable doubt.
Hence, accused is entitled for acquittal by following order.
ORDER
i) Accused Suraj Soumaiya Kevat is acquitted of the
offence punishable U/Secs. 408 of IPC as per section
248 (1) of the Cr.P.C.
ii) Bail bonds of the accused stands cancelled.
iii) The accused shall submit fresh bail bond as per Sec.437
(A) of Cr. P. C.
iv) Seized property i.e. 7 Gas Cylinders be returned to
informant, if not returned on Supratnama.
v) Pronounced in open court.
Sd/
( S. K. MUNGILWAR )
Addl. Chief Metropolitan Magistrate,
9th Court, Bandra, Mumbai
Dictated on : 08.01.2019
Transcribed on : 08.01.2019
Signed on : 08.01.2019
ssl.
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