Ms Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Vs Rakesh Awasthi

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Criminal Appeal No.254 of 2014 Date of Decision: 14.05.2026

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M/s Himachal Pradesh Horticulture Produce Marketing and Processing Corporation, Nigam Vihar, Shimla.

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…...Appellant Versus Sh. Rakesh Awasthi …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes. For the petitioner: Mr. Rahul Gathania, Advocate. For the Respondent: Mr. Adarsh K. Vashista, Advocate.

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Sandeep Sharma, J. (Oral)

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Instant criminal appeal filed under Section 378 of the Code of Criminal Procedure, lays challenge to impugned judgment dated 17.07.2013 passed by learned Judicial Magistrate First Class, Court No.3, Shimla, District Shimla, H.P. in Criminal Complaint No.1897-3 of 2010/09, whereby complaint having been filed by the appellant-complainant (hereinafter ‘ complainant ’) under Section 138 of the Negotiable Instruments Act (in short “ Act ”) against the respondent-accused (in short “ accused ”), came to be dismissed on the ground that Sh. Anil Sharma,

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Marketing Assistant, Himachal Pradesh Horticulture Produce Marketing and Processing Corporation (in short “ HPMC ”), Head Office Shimla, was not competent to file complaint on behalf of the complainant-corporation.

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Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties are that complainant filed a complaint under Section 138 of the Act in the competent court of law, alleging therein that cheque bearing No.695048 dated 30.09.2009 amounting to Rs.13,55,667/- having been issued by the accused towards discharge of lawful liability came to be dishonoured on account of insufficient funds in his bank account. Though before instituting complaint hereinabove, complainant served the accused with legal notice calling upon him to make the payment good within stipulated time, but since accused failed to make the payment good within stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act in the competent Court of law. However, the same was dismissed on the ground that Sh. Anil Sharma, Marketing Assistant, HPMC Head Office Shimla, through whom the complaint was instituted, was not competent to file a complaint at the behest of the HPMC, Baij Nath branch. In afore background, complainant has approached this Court in the instant

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proceedings, praying therein to set aside the aforesaid order and direct trial Court to decide the complaint on its own merits.

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Since complaint having been filed by the complainant has been dismissed merely on the ground detailed hereinabove, this Court sees no reason to refer to the other part of the evidence led on record by the complainant to prove the guilt of the accused, rather this Court shall only make an attempt to find out “whether impugned judgment, thereby dismissing the complaint of the complainant on the ground that Sh. Anil Sharma, Marketing Assistant, HPMC Head Office Shimla was not competent to file complaint, is correct or not?”

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Though in the case at hand, authorized officer of the complainant, namely Sh. Anil Sharma, Marketing Assistant, CW-1 proved on record the General Power of Attorney CW-1/A, however, perusal of the same clearly reveals that aforesaid officer had only been authorized to sign legal documents and agreements with the parties on behalf of the corporation and to institute, conduct, defend, compound, or abandon legal proceedings by or against the HPMC, insofar as the functioning of the HPMC Shimla Branch was concerned. Meaning thereby, afore Officer could have only filed legal cases with regard to working of HPMC branch Shimla.

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Admittedly, in the case at hand, sum of Rs.36,91,926/- was recovered from the accused, who at one point of time was posted as Junior Accountant in the branch office of the complainant-corporation at Baijnath, and as per audit para, an amount of Rs.36,91,926/-, including inventory of wine of Rs.1,04,625/- was held recoverable from the accused, as a result thereof, a criminal case was registered against the accused at Police Station Baijnath, whereafter on 23.12.2008, accused executed an affidavit admitting his liability to make the payment of Rs.35,87,301/- to the complainant and in order to discharge his part liability, he/accused issued a cheque bearing No.695049, dated 31.03.2009, amounting to Rs.13,50,000/- in favour of the complainant-Corporation, however, the same was dishonoured with the remarks ‘funds insufficient’ in the bank account of the accused. In the afore background, complaint under Section 138 of the Act came to be lodged at the behest of HPMC through its authorized signatory Sh. Anil Sharma, who, deriving authority from the General Power of Attorney executed in his favour by the Board of Directors of HPMC, instituted the complaint before the competent Court of law, but the same came to be dismissed on the ground that afore authorized signatory was not competent to file/institute proceedings on behalf of HPMC. Perusal of General Power of

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Attorney Ext.CW1/A clearly reveals that afore authorized signatory was authorized to institute, conduct, defend, compound or abandon any legal proceedings by or against the HPMC/corporation insofar as the functioning of HPMC Shimla Branch was concerned. Admittedly, in the case at hand, sum of Rs.35,87,301/- was to be paid by the accused on account of the embezzlement allegedly committed by him while he was posted as Junior Accountant at the Baijnath Branch Office. Aforesaid amount, which was otherwise sought to be realized through cheque bearing No.695048 dated 30.09.2009 issued by the accused, could have been recovered by the Head Branch HPMC, by filing appropriate proceedings in appropriate Court of law through an authorized person. Since Mr. Anil Sharma, Marketing Assistant, HPMC, through whom complaint came to be filed, was only competent to institute, conduct, defend, compound or abandon any legal proceedings on behalf of HPMC, branch office Shimla, no illegality can be said to have been committed by the court below, while rejecting the complaint on afore ground.

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Though Mr. Anil Sharma, Marketing Assistant, while examining himself as CW-1, deposed that corporation had authorized him to make statements by executing General Power of Attorney Ext.CW1/A, however, it

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is an admitted fact that the present dispute pertains to Baij Nath Branch of the complainant-Corporation, whereas perusal of General Power of Attorney Ext.CW1/A reveals that CW-1 Anil Sharma, Marketing Assistant, HPMC, Head Office at Shimla, had been authorized to deal with the cases of the complainant-Corporation only with respect to its Shimla Branch. Hence, no illegality can be said to have been committed by the court below in holding that CW-1 Anil Sharma was not authorized to file and pursue the complaint with respect to the functioning of HPMC, Baij Nath Branch.

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It was duty of the complainant-Corporation to have issued a valid letter of authority to file and pursue the complaint against the accused. The complainant-Corporation could have rectified the aforesaid mistake by moving appropriate application before court concerned. However, valid authority letter never came to be produced on record to rectify the mistake, as a result thereof, complaint rightly came to be dismissed on afore ground.

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It is well settled by the Hon’ble Apex Court in a catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal, there

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is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Further, if two reasonable views are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court, merely, because the Appellate Court could have arrived at a different conclusion than that of the Trial Court.

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The scope of power of Appellate Court in case of appeal against acquittal has been dealt with by the Hon’ble Apex Court in Muralidhar alias Gidda & another Vs. State of Karnatka reported in (2014) 5 SCC 730 , which reads as under :-

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"10. Lord Russell in Sheo Swarup [1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said,

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"... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused

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to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years.

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11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed:

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"7...........the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.”

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12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu [3], Madan Mohan Singh [4], Atley [5] , Aher Raja Khima [6], Balbir Singh [7], M.G. Agarwal [8], Noor Khan [9], Khedu Mohton [10], Shivaji Sahabrao Bobade [11], Lekha Yadav [12], Khem Karan [13], Bishan Singh [14], Umedbhai Jadavbhai [15], K. Gopal Reddy [16], Tota Singh [17], Ram Kumar [18], Madan Lal [19], Sambasivan [20], Bhagwan Singh [21], Harijana Thirupala [22], C. Antony [23], K. Gopalakrishna [24], Sanjay Thakran [25] and Chandrappa [26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:

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(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,

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(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,

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(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and

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(iv) Merely because the appellate court on re-appreciation and reevaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.”

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The Hon’ble Supreme Court in Rajesh Prasad vs. State of

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Bihar & another, (2022) 3 SCC 471 , observed as under:-

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“31.The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows:

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31.1.Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed up to the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of U.P. v. Sahai (1982) 1 SCC 352] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunchalam v. P.S.R. Sadhanantham (1979) 2 SCC 297] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana vs. Lakhbir]

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31.2.However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarized as follows:

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31.2.1.Where the approach or reasoning of the High Court is perverse;

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(a)Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather

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unrealistic. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393] For example, where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning. [State of U.P. vs. Shanker 1980 Supp SCC 489]

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(b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were “interested” witnesses. [State of U.P. v. Hakim Singh (1980)

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(c)Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393]

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(d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime. [Arunachalam vs. P.S.R. Sadhanantham (1979) 2 SCC 297]

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(e) Where the High Court applied an unrealistic standard of “implicit proof” rather than that of “proof beyond reasonable doubt” and therefore evaluated the evidence in a flawed manner. [State of U.P. v. Ranjha Ram (1986) 4 SCC 99]

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(f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610]

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(g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it necessary on the part of the prosecution to establish “motive”. [State of A.P. v. Bogam Chandraiah (1990) 1 SCC 445]

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31.2.2.Where acquittal would result is gross miscarriage of justice;

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(a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of U.P. v. Pheru Singh 1989 Supp (1) SCC] or based on extenuating circumstances which were purely based in imagination and fantasy [State of U.P. v. Pussu (1983) 3 SCC 502]

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(b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610].”

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10. In H.D. Sundara & others vs. State of Karnataka, (2023) 9

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SCC 581 , the Hon’ble Supreme Court has observed that the Appellate Court cannot overturn acquittal only on the ground that after reappreciating evidence, it is of the view that the guilt of the accused was

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established beyond a reasonable doubt. The relevant portion of the above judgment is as under:-

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“8. In this appeal, were are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short “CrPC”). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC can be summarized as follows:

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8.1.The acquittal of the accused further strengthens the presumption of innocence;

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8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;

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8.3.The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is possible view which could have been taken on the basis of the evidence on record;

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8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and

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8.5.The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.

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9. Normally, when an appellate court exercises appellate jurisdiction, the duty of the appellate court is to find out whether the verdict which is under

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challenge is correct or incorrect in law and on facts. The appellate court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the appellate court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After re-appreciating the oral and documentary evidence, the appellate court must first decide whether the trial court’s view was a possible view. The appellate court cannot overturn acquittal only on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only recording such a conclusion an order of acquittal cannot be reversed unless the appellate court also concludes that it was the only possible conclusion. Thus, the appellate court must see whether the view taken by the trial court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the trial court is a possible view, the appellate court cannot interfere with the order of acquittal on the ground that another view could have been taken.”

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It is also a settled legal position that in acquittal appeal, the Appellate Court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case

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of State of Karnataka vs. Hemareddy, reported in AIR 1981 SC 1417 , wherein it is held as under:-

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"...This Court has observed in Girija Nandini Devi vs. Bigendra Nandini Chaudhary (1967) SCR 93; (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with a view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the

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trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

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Careful perusal of aforesaid law reveals that only in case where judgment under appeal is found to be perverse, the Appellate Court can interfere with the order of acquittal. Even if two views were possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court, merely, because the Appellate Court could have arrived at a different conclusion than that of the Trial Court.

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Moreover, this Court has been informed during proceedings of the case that Civil Suit No.12 of 2021, titled as Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Vs. Rakesh, filed for recovery of amount, had already been decreed by the Coordinate Bench of this Court vide judgment dated 28.07.2017 and at present, execution proceedings are pending against the accused.

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Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court finds no illegality or infirmity in the impugned judgment of acquittal passed by the learned trial Court, which appears to have been passed on the proper appreciation

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of facts, as such, same is upheld. Accordingly, present appeal fails and dismissed alongwith pending applications, if any. Bail bonds, if any, furnished by the accused stand discharged.

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May 14, 2026 (Sandeep Sharma), (sunil) Judge

Ms Himachal Pradesh Horticulture Produce Marketing and Processing Corporation v. Rakesh Awasthi

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Ms Himachal Pradesh Horticulture Produce Marketing and Processing Corporation v. Rakesh Awasthi

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