# Union of India v. P.N. Misra

- **Citation:** (2022) 9 ILRA 1361
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-25
- **Case number:** Government Appeal No. 1000243 of 2009
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-v-p-n-misra-48998
- **Pages:** 4

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 313 & 378 - Prevention
of Corruption Act, 1988 - Sections -
13(1)(d) & 13(2) - Indian Penal Code,
1860 - Sections 20(b), 420, 468 & 471 -
Government Appeal - against Acquittal - CBI
registered
a
preliminary
inquiry
against
accused respondents - whom are while posted
and functioning as an officer in Telephone
department committed offence of Cheating,
forgery
and
criminal
mis-conduct
-
Prosecution has failed to established their
case - A Criminal trial proceeds with the
presumption of innocence of the accused
person - with the acquittal of the accused this
presumption of innocence stands fortified -
for interference very strong and cogent
reasons must be exist - since, view taken by
the trial court was probable and logical view
which is based on valid reasons - hence, no
interference is called for - Leave to appeal is
rejected. (Para 13, 14, 17)

Appeal dismissed. (E-11)

List of Cases cited:

## Text

9 All. Union of India Vs. P.N. Misra
1361
Impugned order dated 23.12.2020 passed
by Special Judge, M.P./M.L.A., Additional
Sessions Judge, Court No.19, Lucknow is
set aside. The accused-respondent is
convicted for offences under Sections 353,
504, 506 IPC. He is sentenced for offence
under Section 353 IPC to undergo rigorous
imprisonment for 2 years with fine of
Rs.10,000/-. For offence under Section 504
IPC, he is sentenced to undergo rigorous
imprisonment for 2 years with fine of
Rs.2,000/-. For offence under Section 506
IPC, the accused is sentenced to undergo
rigorous imprisonment for 7 years with fine
of Rs.25,000/-. All the sentences would run
concurrently.

60. Let the learned Trial Court record
be remitted back for preparing the custody
warrant of the accused-respondent as per
the law.
----------
(2022) 9 ILRA 1361
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.08.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Government Appeal No. 1000243 of 2009

Union of India ...Appellant
Versus
P.N. Misra ...Respondents

Counsel for the Appellant:
Bireshwar Nath

Counsel for the Respondent:
Prem Kumar Sahu, Ravi Shanker Tewari, Sheo
Pal Singh, Smt. Suniti Sachan, Vinod Kr. Shahi

Criminal Law - Criminal Procedure Code,
1973 - Sections 313 & 378 - Prevention
of Corruption Act, 1988 - Sections -
13(1)(d) & 13(2) - Indian Penal Code,
1860 - Sections 20(b), 420, 468 & 471 -
Government Appeal - against Acquittal - CBI
registered
a
preliminary
inquiry
against
accused respondents - whom are while posted
and functioning as an officer in Telephone
department committed offence of Cheating,
forgery
and
criminal
mis-conduct
-
Prosecution has failed to established their
case - A Criminal trial proceeds with the
presumption of innocence of the accused
person - with the acquittal of the accused this
presumption of innocence stands fortified -
for interference very strong and cogent
reasons must be exist - since, view taken by
the trial court was probable and logical view
which is based on valid reasons - hence, no
interference is called for - Leave to appeal is
rejected. (Para 13, 14, 17)

Appeal dismissed. (E-11)

List of Cases cited:

1. Sambasiva Vs St. of Kerala, 1998 SCC (Cri)
1320

2. Sadhu Saran Singh Vs St. of U.P. & ors.,
(2016) 4 SCC 35

(Delivered by Hon'ble Shamim Ahmed, J.)

1. The case is taken up in the revised
call.

2. Heard Sri Shiv P. Shukla learned
counsel for the appellant and Sri Ravi
Shanker Tewari, learned counsel for the
respondent Nos. 1 to 3 and perused the
material available on record.

3. The present leave to appeal under
Section 378 Cr.P.C. has been filed against
the judgment and order dated 10.04.2009
passed by the Special Judge, AntiCorruption (Central), U.P., Lucknow in
Case No. 15 of 1999, acquitting the
respondents under Section 420, 468, 471
I.P.C. and Section 13 (2) read with Section
13 (1) (d) Prevention of Corruption Act,
1988.
1362 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The facts and circumstances
leading to this case, in nut shell are that the
then SP, CBI/SPE Lucknow registered a
preliminary inquiry No. 11(A)/96 on 2806-1996 on source of information. The said
preliminary
inquiry
revealed
that
respondent no.- namely Sri P N Mishra
JTO Rajajipuram, Lucknow and respondent
no.-2 namely Sri B B Singh Telephone
Inspector, Rajajipuram , Lucknow while
posted and functioning as such , entered
into a criminal conspiracy with each other
and some unknown person in order to
commit the offense of cheating , forgery
and criminal mis-conduct. in pursuance of
common object of said criminal conspiracy
Sri PN Mishra and Sri BB SIngh
dishonestly and fraudulently installed a
new telephone connection No. 259928 on
24-11-1993 in the name of Smt. Nishi
Khosla w/o Sri Puneet Khosla against L.P.
No. 7532 dated 09-11-1993 OB No. 1137
with STD facility. The said telephone
number was installed without observing the
bonafide and genuineness of the subscriber
for a new telephone connection. The name
and address of subscriber was fictitious and
bogus, thus they abused their official
position as public servants by installing the
said new telephone connection in the name
of Smt. Nishi Khosla. The aforesaid
accused persons in criminal conspiracy
with
some
unknown
persons
caused
wrongful loss to the Telecom Department
to the tune of Rs. 91,356 /- approx. and
defrauded the Telecom Department. And
on the basis of aforesaid preliminary
inquiry the then SP, CBI registered a case
vide Ext. Ka-18 and ordered investigation
to be conducted by Sri B.S. Mishra Dy. SP
CBI Lucknow and on the completion of
investigation CBI submitted charge sheet
Ext Ka-24 u/s 120-B, 420, 468,471 IPC and
u/s 13(2) r/w 13(1)(d) of P.C. Act 1988
against the respondents for committing the
alleged offenses.

5. The court below after taking into
consideration the facts and circumstances
of the case and evidence available on
record, passed the judgment and order of
acquittal dated 10.04.2009.

6. Learned counsel for the appellant
submits that the court below did not
appreciate the evidence on record. He
further
submits
that
prosecution
has
successfully proved the offence against the
accused on the basis of evidence. The
judgment was passed without considering
the statement of witnesses and the case set
up by the prosecution and the judgment of
the acquittal was passed on surmises and
conjectures.

7. Learned counsel for the respondent
Nos. 1 to 3 submits that the present appeal
is of the year, 2009. Moreover, there
appears no illegality or infirmity in the
judgment and order of acquittal passed by
the court below, therefore, leave to appeal
may be refused.

8. I have heard the learned counsel for
the appellant and considered the ground as
well as the argument advanced by learned
counsel for the respondent Nos. 1 to 3 and
gone through the judgment passed by the
court below.

9. In the present case from the
statements given by the witnesses produced
by the prosecution, I found that prosecution
has failed to establish that the crime in
question has been committed by the accused
and there was no direct evidence produced by
the prosecution regarding involvement of the
respondent Nos. 1 to 3 in the crime.
9 All. Union of India Vs. P.N. Misra
1363

10. Further, learned counsel for the
appellant could not point out any illegality
or infirmity in the judgment and order of
acquittal passed in favour of respondents
which is before this Court.

11. Further, this Court observed that
an appeal against acquittal stands on a
different footing from the appeal against
conviction. Hon'ble the Apex Court in a
very recent judgment in the case of Sadhu
Saran Singh Vs. State of Uttar Pradesh
and Others reported in (2016) 4 SCC 357
has considered this difference and has
observed in paragraph nos.20 and 21 as
under:

"20. Generally, an appeal against
acquittal has always been altogether on a
different pedestal from that of an appeal
against conviction. In an appeal against
acquittal
where
the
presumption
of
innocence in favour of the accused is
reinforced, the appellate court would
interfere with the order of acquittal only
when there is perversity of fact and law.
However, we believe that the paramount
consideration of the Court is to do
substantial justice and avoid miscarriage of
justice which can raise by acquitting the
accused who is guilty of an offence. A
miscarriage of justice that may occur by
the acquittal of the guilty is no less than
from the conviction of an innocent. This
Court, while enunciating the principles
with regard to the scope of powers of the
appellate court in an appeal against
acquittal, in Sambasiva V. State of Kerala
1998 SCC (Cri) 1320 has held:

"7. The principles with regard to the
scope of the powers of the appellate court
in an appeal against acquittal, are well
settled. The powers of the appellate court
in an appeal against acquittal are no less
than in an appeal against conviction. But
where on the basis of evidence on record
two views are reasonably possible the
appellate court cannot substitute its view in
the place of that of the trial court. It is only
when the approach of the trial in acquitting
an accused is found to be clearly erroneous
in its consideration of evidence on record
and in deducing conclusions therefrom that
the appellate court can interfere with the
order of acquittal."

21. The Court, in several cases, has
taken the consistent view that the appellate
court, while dealing with an appeal against
acquittal, has no absolute restriction in law
to review and relook the entire evidence on
which the order of acquittal is founded. If
the appellate court, on scrutiny, finds that
the decision of the court below is based on
erroneous
views
and
against
settled
position of law, then the interference of the
appellate court with such an order is
imperative."

12. In the light of the aforesaid
guidelines, the impugned judgment has to
be considered from the point of view
whether the view taken by the court below
was a probable view based on the material
on record or it is an absolutely erroneous
judgment devoid of merits.

13. A criminal trial proceeds with the
presumption of innocence of the accused
persons. With the acquittal of the accused
persons this presumption of innocence
stands fortified. So very strong and cogent
reasons must exist in interfering the
judgment of acquittal.

14. Keeping in view the aforesaid
weakness of the prosecution case, as noted
by the court below, I am of the view that
the view taken by the court below was a
probable and logical view, which is based
on valid reasons. The judgment of the court
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
below cannot be said to be illegal, illogical
and improbable and not based on material
on record or is based on erroneous views
and is against the settled position of law.
So, this Court is satisfied that there is
absolutely no hope of success in this appeal
and accordingly, no interference is called
for.

15. Leave to appeal is refused.

16. Application for leave to appeal is
rejected.

17. Accordingly, the appeal does not
survive, and in view of above, the appeal is
also dismissed.

18. No order as to costs.

19. Copy of this judgment be sent to
the court below for its compliance.
----------
(2022) 9 ILRA 1364
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.09.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-C No. 5940 of 2022

Dr. Vaibhavi Dhasmana ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Pawan Kumar Nigam, Ram Babu Singh

Counsel for the Respondents:
C.S.C., Kshitij Mishra

Civil Law- Indian Contract Act, 1872-
Section
74-
UP
NEET
Counseling
-
Forfeiture of Security Deposit- Petition for
refund of security deposit- The stipulation
of forfeiture of security is clearly by way
of a penalty and in view of illustration as
contained in Section 74, the stand taken
by the respondent cannot be accepted and
the State at best can claim reasonable
compensation for the los suffered on
account of breach of contract. As no loss
has been shown to be caused to the
respondent by way of resignation coupled
with the fact that the seat of the State has
not gone vacant, the State cannot even
claim reasonable compensation.

The security amount deposited by the petitioner
cannot be forfeited by taking recourse to
Section 74 of the Contract Act as neither the
State has suffered any loss and nor has the seat
gone vacant due to the resignation of the
petitioner. (Para 16, 19, 20)

Writ Petition allowed. (E-3)

Judgements/Case law relied upon:-

Fateh Chand Vs Balkishan Dass - AIR 1963 SC
1405

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard learned counsel for the
petitioner and Shri Sanjay Bhasin, learned
Senior Advocate assisted by Shri Kshitij
Mishra, learned counsel appearing for
respondent no.2.

2. Present petition has been filed
seeking refund of the security amount
deposited by the petitioner after first round
of counseling.

3. The facts in brief are that,the
petitioner participated in the UP NEET
Counseling 2021 and was allotted seat in
M.D. Anesthesia by respondent no.2, the
State Counseling Board. Subsequently and
prior to the second round of counseling, the
petitioner got admission in Hemwati
Nandan Bahuguna Uttarakhand Medical