State vs. Anil Sawavala Sonawane and Ors. Vs Anil Sawavala Sonawane and Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO.674 OF 1995

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 The Union of India ]
 (Through R.P.F.Lonavala) ]
 The State of Maharashtra ]..Appellant
 (Ori.Complainant)

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 Versus

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 1. Anil Sawala Sonawane ]
 Age 23 yrs. ]
 Resident of Kamgar Putla ]
 Zopadpatti, Shivajinagar ]
 Pune, Dist. Pune. ]
 ]
 2. Sandeep Pandurang Hanwate ]
 Age 32 yrs. r/o ]
 Kamgar Putla Zopadpatti, ]
 Shivajinagar, Pune, ]
 Dist. Pune. ]
 ]
 3. Suresh Dattatraya Bhosle ]
 Age 39 yrs.r/o Aagwali ]
 Chawl, Lonavala, At Post ]
 Lonavala Dist.Pune ]..Respondents
 (Ori.Accused)
 ....
 Mr.A.S.Shitole, A.P.P. for State.
 None for Respondent nos.1 to 3 though served
 ....

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 CORAM: SMT.V.K.TAHILRAMANI,J.
 DATE : DECEMBER 2,2004
ORAL JUDGMENT:

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 1. Through this appeal, the appellant-State of
 Maharashtra challenges the judgment and order dated
 31st January, 1995 passed by the learned Judicial

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 Magistrate, (Rly.) Court, Pune in R.C.C.No. 152 of
 1992. By the said judgment and order, the learned
 Magistrate acquitted the respondents i.e. original
 accused nos.1 to 3 for the offence under Section
 3(a) of the Railway Property (Unlawful Possession)
 Act, 1966.

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 2. Briefly stated the prosecution case is as under:

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 . That appellant no.1 Suresh Bhosle was the Manager
 of the Railway Canteen. On 18th September, 1993, he
 unauthorisedly sold some of the utensils of Railway
 Canteen to respondent no.1 Anil Sawala Sonawane and
 respondent no.2 Sandeep Pandurang Hanwate for
 Rs.1500/-. Hence, complaint came to be filed.

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 3. The charge (Exhibit-32) came to be framed
 against all the accused under section 3(a)of the
 Railway Property (Unlawful Possession) Act, 1966.
 The particulars of charge were read over and
 explained to all the accused. All the accused
 pleaded not guilty and claimed to be tried..d The
 accused no.3 i.e. respondent no.3 herein Suresh
 Dattatraya Bhosle examined himself on oath. He has
 also produced certified copy of Receipt No.6742
 (Exhibit-45). It is the defence of the accused no.3
 that he being the Manager of the Railway Canteen,

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 the said utensils were in his charge. The utensils

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 were not in usable condition and as he was
 authorised to sell the dead stock, he sold the
 utensils to accused nos.1 and 2.

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 4. In support of its case, the prosecution examined
 four witnesses i.e. P.W.1 I.R.Thakkur who P.W.2
 S.G.Parab who are the Inquiry Officers, P.W.3
 V.K.Zhende who is the complainant and P.W.4
 M.J.Sharma. After going through the evidence

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 adduced by the prosecution, the learned Magistrate
 acquitted all the accused.

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 5. I have heard Shri.Shitole, learned A.P.P. for
 the appellant. None appears for the respondents
 though served. I have also perused the entire
 record of this case and this appeal is being
 disposed of on merits. After carefully considering
 the matter, I am of the opinion that this appeal
 deserves to be dismissed.

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 6. I shall first deal with the evidence of P.W.4
 Mahavir Sharma. As per his evidence, on 18th
 September, 1993 he learnt that accused no.3 was
 unauthorisedly disposing of the railway canteen
 utensils without permission. P.W.4 Mr.Sharma
 visited the spot and found that accused no.3

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 S.D.Bhosle was selling utensils to accused nos.1 and
 2 for Rs.1500/-. Hence, he informed R.P.F. Officer
 P.W.1 I.R.Thakkur. On receiving the information,
 P.W.1 Thakkur went to Lonavala Railway Station and
 noticed that accused no.3 S.D.Bhosle was about to
 dispose of the alleged utensils for Rs.1500/- to
 accused nos.1 and 2. He made inquiries from accused
 no.3 S.D.Bhosle who was running the railway canteen.
 P.W.1 Mr.Thakkur called panch witness and the
 utensils and amount of Rs.1500/- came to be seized
 under panchnama. Thereafter, P.W.4 Sharma handed
 over inquiry to P.W.2 Mr.Parab.

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 7. It is the case of the prosecution that accused
 no.3 unauthorisedly sold the utensils to accused
 nos.1 and 2. In the present case, the complainant
 is P.W. 3 V.K. Zhende. However, it is pertinent
 to note that P.W.3 Zhende as well as P.W.4 Sharma
 have admitted that they have not mentioned that the
 accused was disposing of the railway canteen
 utensils ‘unauthorisedly.’ The entire case is based
 upon the allegations of unauthorised sale. Yet this
 very important fact has not been stated in the
 charge report as well as in the complaint. This
 witness has admitted that the utensils were kept in
 the premises of the canteen. P.W.3 Zhende has
 admitted that the seized utensils were not in usable

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 condition. He had not verified the dead stock
 register of the railway canteen. It is the case of
 the defence that as the utensils were not in usable
 condition, the same came to be disposed of by
 accused no.3 S.D.Bhosle who was the Manager of the
 Railway Canteen as he was orally authorised by
 Mr.Zhende and Mr.Sharma to dispose of the said
 property.

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 8. Looking to the evidence of P.W.3 Shri.Zhende
 that the utensils were kept in the premises of
 railway canteen and that looking to the fact that
 the accused no.3 Bhosale was the Manager of railway
 canteen, it cannot be said that the possession of
 the utensils with accused no.3 Bhosle was unlawful
 or unauthorised. The accused also produced receipt
 from his department which had been prepared by him
 in respect of the sale of utensils when he sold the
 utensils to accused nos.1 and 2. If the sale was
 unauthorised, there was no question of the accused
 preparing any receipt in respect of the sale. Thus,
 it cannot be said that accused nos.2 and 3 were in
 unlawful possession of the said property.

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 9. The accused Bhosale has examined himself as
 defence witness no.1. He deposed that since 1981 he
 was working as canteen Manager of Lonavala

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 Rly.Station and his job was to purchase and sell the
 articles used in the canteen. The alleged utensils
 were not in use and were non-serviciable hence he
 was orally allowed by Committee members to dispose
 of the same. Therefore, the accused Bhosale called
 two persons i.e. accused nos.1 and 2 to purchase
 the same. The accused was bonafidely disposing of
 the said utensils. The prosecution has attacked the
 version of this witness in his cross examination but
 nothing could be brought on record to infer that he
 is deposing falsely. In such case, the defence put
 forward by the accused no.3 appears to be reliable
 and trustworthy.

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 10. Thus, looking to the evidence on record and the
 defence put forward by the accused nos.3, I am of
 the opinion that the view of acquittal taken by the
 learned Magistrate was a reasonable and possible
 view.

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 11. Apart from this, one cannot loose sight of the
 fact that impugned order of the acquittal was passed
 on 13th January, 1995 and almost more than nine and
 half years have passed since then. I am of the
 opinion that in petty cases like the instant one in
 which an amount of Rs.1500/- is involved, on account
 of efflux of time also, it would not be proper to

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 disturb the order of acquittal.

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 12. The learned Magistrate has given plausible
 reasons for acquittal in the impugned judgment. It
 is well settled that if the view of acquittal could
 have been reasonably arrived at, then the mere
 circumstance that the appellate Court could have
 taken a different view, would be no ground to
 interfere. In this connection, there is no dearth
 of authorities. To eschew prolixity, I am only

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 referring to two of them i.e. A.I.R. 1971 S.C. 66
(Khedu Mohton Vs. State of Bihar) and (2003) 1

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S.C.C. 1 (C.Anthony Vs. K.G.Raghavan Nair). In
 the case of C.Anthony, the Supreme Court has
 observed that unless findings of the trial Court are
 perverse or contrary to the material on record, the
 High Court cannot in appeal, substitute its findings
 merely because other contrary opinion was possible
 on the basis of the material on record. In my view,
 the view of acquittal was a reasonable and possible
 view.

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 13. In the circumstances, I find no merit in this

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 appeal and the same is dismissed. The judgment and
 order of acquittal dated 13th January, 1995 passed
 by learned Judicial Magistrate F.C. (Rly.) Court,
 Pune in R.C.C.No. 152 of 1993, is confirmed. The

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 bail bonds of the accused shall stand cancelled.

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 [SMT.V.K.TAHILRAMANI,J.]

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 FARAD CONTINUATION SHEET
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE SIDE
CRIMINAL APPEAL NO. 674 OF 1995
 (Union of India Vs. Anil Sawala Sonawane and Others)
 -----------------------------------------------------------------
 Office Notes, office Court’s or Judge’s orders
 Memoranda of Coram,
 appearances, Court’s
 orders or directions
 and Registrar’s orders

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 -----------------------------------------------------------------
 Mr.A.S.Shitole, A.P.P. for State-
 appellant
 None for Respondents 1 to 3 though
 served.

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 CORAM: SMT.V.K.TAHILRAMANI,J.

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 DATE : DECEMBER 2, 2004

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 . For the reasons mentioned
 separately in the judgment, the
 following order is passed:

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 . The judgment and order of
 acquittal dated 13th January, 1995
 passed by learned Judicial
 Magistrate F.C. (Rly.) Court, Pune
 in R.C.C.No. 152 of 1993, is
 confirmed. The bail bonds of the
 accused shall stand cancelled.
 Appeal dismissed.

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 (V.K.TAHILRAMANI,J.)

State v. Anil Sawavala Sonawane and Ors. v Anil Sawavala Sonawane and Ors.

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State v. Anil Sawavala Sonawane and Ors. v Anil Sawavala Sonawane and Ors.

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