HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 82
Case :- APPLICATION U/S 378 No. – 46 of 2008
Applicant :- Sunil Kumar
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- K.K. Dwivedi
Counsel for Opposite Party :- Govt. Advocate
Hon’ble Harsh Kumar,J.
Heard Sri Dhirendra Bahadur Singh, Advocate holding brief of Sri K.K. Dwivedi, learned counsel for applicant-appellant, learned A.G.A. for the State and perused the record.
The instant application has been moved for permission to file an appeal against the impugned judgment and order of acquittal dated 23.7.2008 passed by Special Chief Judicial Magistrate, Agra in Complaint Case No.1727 of 2003 (Roshan Lal Vs. Sobaran Singh and others), under Section 447 I.P.C., P.S. Iradat Nagar, District Agra acquitting the opposite party no.1 from the charges under section 406 I.P.C., acquitting accused-opposite party no.2 Ishwari Prasad from the charges under Section 447 I.P.C.
The brief facts relating to the case are that Roshan Lal filed a complaint case with the averments that on 30.7.1986 at about 10:00 a.m. the opposite party no.2 and two others taken over possession on 80 x 80 feet Chaupal of complainant by putting their manure and cowdung and when complainant made a complaint, they attempted mar-peet and refused to leave possession despite expiry of period of legal notice.
The appeal with application under Section 378 (4) SectionCr.P.C. has been filed by Sunil Kumar, the son of Roshan Lal.
Learned counsel for applicant submits that since Roshan Lal has died so his son has preferred this appeal.
Learned A.G.A. supported the impugned order.
Upon hearing learned counsel for parties and perusal of record, I find that trial court in impugned judgment has recorded a finding that complainant has filed an unregistered sale deed dated 24.8.1975 executed for a sum of Rs.50/- in favour of Smt. Bhagwati Devi, widow of Kedar Nath who was Chacha of complainant Roshan Lal but the complainant has not made it clear as to how the land covered by above sale deed came under ownership of complainant while it was allegedly in ownership of his Chachi. Learned trial court has also recorded that in legal notice served by complainant no date of taking over unauthorised possession by accused has been mentioned and no reason has been assigned as to why the date of alleged unauthorised possession was not mentioned in notice. It is also pertinent to mention that there is no whisper that Smt. Bhagwati, the owner under sale deed dated 24.8.1975 ever bequeathed the property in question to Roshan Lal or transferred it to him in any other manner whatsoever.
It is settled principle of law as held by Hon’ble the Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 “When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified”.
In view of discussions made above, I have come to the conclusion that the learned counsel for the applicant-appellant has measurably failed to show any manifest error of fact or law, legal infirmity, incorrectness or perversity in the findings given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. The application for leave to file appeal has no force and is liable to be dismissed.
The application for leave to file appeal is dismissed accordingly and the appeal also stands dismissed.
Lower court record be sent back to court concerned along with a copy of this order.
Order Date :- 27.11.2019
Kpy
Order on Memo of Appeal
Hon’ble Harsh Kumar,J.
Dismissed.
For order, see order of date passed on application for leave to file appeal.
Order Date :- 27.11.2019
Kpy
