Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.NO.2203113/PW/2018
Filed on : 21112018
Registered on : 21112018
Decided on : 22102019
Duration : 00Y, 11M, 01D
Exh. : 26
IN THE COURT OF THE ADDIL. CHIEF METROPOLITAN MAGISTRATE,
22nd COURT, ANDHERI, MUMBAI.
(Presided Over by S. N. SALVE)
Judgment Under Section 355 of the Code of
Criminal Procedure
(a) The serial & CNR No. of
the case;
: C. C. No. 2203113/PW/2018
CNR No.MHMM190123552018
(b) The date of commission of
the offence;
: 18092018
(c) The name of the
complainant
(if any);
: The State of Maharashtra
(At the instance of M.I.D.C Police
Station in Crime No. 449/2018)
(d) The name of the accused
person and his parentage
and residence;
: 1)
2)
Mohd. Revanbaksh Jafari
Age : 53 years
Occupation : Nil
R/at : G/1, Alamin Building,
Opposite Paradise Cinema,
Mahim (West), Mumbai.
Zayara Mohd. Jafari
Age : 23 years
Occupation : Nil
R/at : G/1, Alamin Building,
Opposite Paradise Cinema,
Mahim (West), Mumbai.
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2 C.C.NO.2203113/PW/2018
3) Laila Mohd. Jafari
Age : 37 years
Occupation : Nil
R/at : G/1, Alamin Building,
Opposite Paradise Cinema,
Mahim (West), Mumbai.
(e) The offence complained
of or proved;
: Under Section 380 r/w Section 34
of the Indian Penal Code
(f) The plea of the accused
and
his examination(if any);
: Accused pleaded not guilty and
claimed to be tried.
(g) The final order; : Accused are acquitted.
(h) The date of such order; : 22102019
Appearance: APP Mrs. N. R. Pasarkar for the State.
Advocate Shri. Jitendra Tiwari for accused.
J U D G M E N T
(Delivered on 22102019 )
The accused stand prosecuted for the offence punishable
under Section 380 r/w Section 34 of the Indian Penal Code (For short,
the I.P.C.) for having committed theft of cash amount of Rs. 43,000/ in
the shop of informant.
2. The prosecution case, in a nutshell, is that the informant
Kapil Chandraprash is running a jewelery shop in the name & style as
Navkar Jewelers at Takshashila Society, Mahakali Road, Andheri (East),
Mumbai. On 18092018 around 10.00 in the morning the informant as
usual opened his shop, three customers came in the shop for
exchanging American Dollars. At that time the informant handed over
bundle of currency notes. The accused persons removed currency notes
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3 C.C.NO.2203113/PW/2018
to the extent of Rs. 43,000/ and handed over the same to the
informant. The informant realised that currency notes to the tune of
Rs.43,000/ have been removed. He verified the said fact from CCTV
footage. After that he went to M.I.D.C. Police Station and lodged report
against the accused persons.
3. On the basis of the report of the informant, Crime
No.449/2018 under Section 380 r/w Section 34 of the Indian Penal
Code was registered against the accused persons. The investigation of
the crime was carried out by A.P.I. Shrinivas Kamuni. He arrested the
accused persons. While the accused No.1 was in police custody he
made a disclosure statement and shown his willingness to produce the
said currency notes. In pursuance of the memorandum accused No.1
led the I.O., API Kamuni and produced three currency notes of Rs.500/
denominations. Those currency notes were seized in presence of
panchas and panchnama was drawn up. After completion of due
investigation submitted chargesheet.
4. I framed charge (Exh2) against the accused persons for the
offence punishable under Section 380 r/w. Section 34 of the Indian
Penal Code. It was read over and explained to them to which they
pleaded their innocence and claimed to be tried. The statements of
accused under Section 313 of the Code of Criminal Procedure are
recorded after the witnesses for the prosecution have been examined.
Their defence is that of total denial and false implication in the crime.
5. The points for determination along with my findings with
reasons thereon are as follows :
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4 C.C.NO.2203113/PW/2018
Sr.
No
Points Findings
1 Whether the prosecution proves that
accused in furtherance of their common
intention committed theft of cash amount of
Rs. 43,000/ in the shop of information ?
: No.
2 What order ? Accused are
acquitted.
R E A S O N S
6. In order to bring home the guilt of the accused, the
prosecution has examined only three witnesses viz. the informant Kapil
Chandraprakash Jain (PW1) at Exh.12, panch witness Jahid Shaikh
(PW 2) at Exh.19 and Investigating Officer A.P.I. Shrinivas Kamuni
(PW 3) at Exh.21.
: Point Nos. 1 & 2 :
7. The informant Kapil (PW1) deposed that on 18092018
the accused came to his shop for exchanging currency. They showed
him Indian currency of denomination of 50, 100 & 200. The informant
was having bundle of currency note of denomination of 500 & 2000.
The accused took the bundle from him and removed currency notes of
Rs.43,000/.
8. Jahid Shaikh (PW2) happens to be panch witness to
memorandum statement and seizure memo. He deposed that the
accused No.1 was in the custody of police who made a disclosure
statement and shown his willingness to produce the currency notes
removed from the bundle. He further deposed that in pursuance of the
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5 C.C.NO.2203113/PW/2018
memorandum statement accused No.1 produced Rs. 1,500/ from a
purse which was seized under panchnama.
9. A.P.I. Kamuni (PW3) has carried out the investigation of
the crime. He deposed that while the accused No.1 was in custody
made a disclosure statement, shown his willingness to produce the
currency notes and in pursuance of the said memorandum statement he
seized Rs.1,500/ under panchnama.
10. In so far as bundle of currency note is concerned the
informant has not led any evidence that he was having currency note as
stated by him. It is also pertinent to point out here that the alleged
incident occurred on 18092018 and F.I.R. of the same has been lodged
on 27092018. The informant was expected to lodge the report
promptly when the theft as alleged has taken place.
11. It is also pertinent to point out here that the informant
stated that he checked the CCTV footage and then lodged the report.
However, the prosecution has not led the said electronic evidence
though available. There is no reason why the said electronic evidence
has been withheld by the prosecution. The said electronic evidence was
very much necessary to throw light on the prosecution case whether
really the accused persons removed the currency notes from the bundle.
Therefore, for nonproduction of electronic evidence adverse inference
will have to be drawn. It is also pertinent to point out here that only an
amount of Rs. 1,500/ came to be recovered in pursuance of
memorandum statement. However, there is no evidence that the
currency notes of Rs.1,500/ seized from the accused No.1 were from
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6 C.C.NO.2203113/PW/2018
the bundle handed over to the accused by the informant. This evidence
to link the accused with the seized currency notes is missing.
12. After having taking into consideration the evidence led by
the prosecution and the reasons discussed herein above in my view this
is a fit case wherein the accused deserves to be given benefit of doubt.
Consequently, I hold that prosecution has failed to establish the guilt of
the accused beyond the reasonable doubt. Accordingly, I answer point
No.1 in the negative
: Point No. 2 :
13. In view of my negative finding as to point No. 1 accused is
entitled for acquittal.
14. In so far as the seized property is concerned the accused
have not claimed the same, therefore the currency notes will have to be
credited to the Government and the seized purse will have to be sold in
auction.
15. In the result, following order is passed.
O R D E R
(i) Accused are acquitted of the offence punishable under Sections
380 r/w 34 of the Indian Penal Code under section 248 (i) of
Cr.P.C.
(ii) Bail bonds of the accused stand cancelled.
(iii) Accused shall furnish P.R. and S.B. of Rs.15,000/ (Rs. Fifteen
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Thousand Only) each as per section 437(A) of the Code of
Criminal Procedure for the period of six months.
(iv) The seized cash amount of Rs. 1,500/ be credited to the
Government and and the seized purse be sold in auction and its
sale proceeds be credited to the Government, after appeal
period is over
Date : 22102019
(S. N. Salve)
Addl. Chief Metropolitan Magistrate,
22nd Court, Andheri, Mumbai.
*csj
Dictated on : 22102019
Typed on : 22102019
signed on : 22102019
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