Nasir Khan vs Collector / District Magistrate and Others

Tarun Kumar Kaushal, J.—Present petitions are directed against the orders dated 15.09.2010 passed by Additional Sessions Judge, Neemuch in Criminal Appeal No. 113/08 and Criminal Revision No. 80/08 respectively by which judgment dated 07.04.2008 passed by C.J.M, Neemuch in Criminal Case No. 1057/06 acquitting the petitioner of the charge under sections 420, 467, 468 and 409 IPC was set aside and the case was remanded back for recording the statement of prosecution witness.

Necessary facts in short are that on 21.07.1997 Assistant Manager of Punjab National Bank, Neemuch, co- accused Hari Shankar (since deceased) transferred an amount of Rs.92 lacs in the account of the petitioner Nasir Khan telegraphically. On the basis of F.I.R Ex.P/33 of Kailash Chandra Kumawat, the then Branch Manager, Police Neemuch registered a case under section 420 IPC at Crime No. 433/97 against the petitioner and two other accused persons. Out of those two, one has died and another is still absconding.

Perusal of para-41 of the judgment of the trial Court it becomes clear that current account No. 2553 was petitioner''s account. The trial Court has extended the benefit of doubt because introducer of the petitioner at the time of opening of the account in the bank was not produced in the trial Court in witness box but in para-42 of the judgment the trial Court has clearly observed that fact of involvement of petitioner in the crime and its conspiracy can be proved by prosecution witness Vijay Dixit and prosecution failed to produce the aforesaid witness at various occasions during the period of 1998 to 2008.

In the impugned order, appellate Court has also observed the same fact that prosecution witness Vijay Dixit was the main witness who could have proved the case against the petitioner and has remanded the case for recording of evidence of Vijay Dixit who was sought as a witness in the charge sheet also.

Learned counsel for the petitioner submits that there is an end to everything while in the evidence of all other witnesses nothing has come against the petitioner. Written complaint Ex.P/33 is also silent regarding the involvement of the petitioner. Signature of petitioner has not been sent to hand writing expert for obtaining the expert opinion. Petitioner did not receive any monetary benefit out of those transactions. No money was seized from him ever. Petitioner has underwent harassment for 13 years in the case. On account of absence of a witness accused should not be made to suffer to that extent.

Learned counsel further submits that appellate Court has directed recording of statement of Vijay Dixit as prosecution witness which will amount to nothing but filling up of lacuna in the case. The appellate Court has unnecessarily interfered with the finding of acquittal which was based on proper appreciation of evidence of the trial Court.

Per contra, learned G.A submits that appellate Court under section 386 of the Cr.P.C has sufficient powers to affirm or to set aside the judgment and also has the powers for issuance of direction for further enquiry, if necessary for ensuring justice.

Prosecution witness Vijay Dixit is a necessary witness is a concurrent finding of fact of the Courts below. Now the only question remains whether prosecution can be given further opportunities to produce him as witness while prosecution failed to produce him during last 14 years and whether accused can be put to harassment again when he had already suffered harassment and agony of trial for 14 years. For the aforesaid it is observed that after finding of acquittal no doubt there is a presumption of innocence against the accused. It is equally important that both Courts gave a common finding that Vijay Dixit is an important witness in the case who can adduce the facts to reveal the truth in so far as charge for offence against present petitioner is concerned.

In such a situation interest of justice demands that prosecution should have been given one more opportunity for producing the main witness of the case but this is also true that there is an end to anything and to everything. This Court does not see any error so far as impugned order is concerned but there should be some condition on it.

Prosecution is directed to examine the witness Vijay Dixit as early as possible without delay. It is made clear that prosecution will not be permitted to waste time for his production further. In the event investigating officer fails to keep Vijay Dixit present in the Court for his examination which will be his personal liability and in that eventuality the trial Court shall proceed further in accordance with law and will conclude the trial without any delay according to law.

The petitions stand disposed of to the terms as indicated above.