IMPORTANT POINT
The court clarified that the absence of documentary evidence does not invalidate oral testimonies that inspire confidence in establishing guilt for cheating.

JUDGMENT :

1. Heard the learned counsels for the respective parties.

2. The applicants/accused who have been convicted of the offences punishable under Sections 420 read with Section 34 of the IPC and under Section 3 read with Section 4 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 (“Act of 1978” for short) have impugned the judgments and orders of the learned Chief Judicial Magistrate, Aurangabad passed in RCC.No.1719 of 2001, dated 07.04.2005 and the learned 2nd Additional Sessions Judge, Aurangabad confirming the judgment and order of the learned Chief Judicial Magistrate in Criminal Appeal Nos.37 of 2005 and 39 of 2005, dated 05.07.2005.

3. Learned counsels for the applicants have vehemently argued that both Courts erred in law in holding that both the offences have been proved beyond a reasonable doubt. Learned counsel Mr. Ladda for the applicant Subhadrabai and another have tried to open the case by referring to the evidence. The law is clear that unless the glaring features are brought to the notice of the High Court, it cannot re-appreciate the evidence in revision. However, he referred to some facts about the incapacity of the complainants to pay or deposit the money for chit because she or her family had no sufficient income to pay such instalments. He referred to the judgments and argued that Section 420 of the IPC was neither ascribed by the Trial Court nor the Sessions Court. The so-called notebook seized from the co-accused did not establish the allegations. He referred to paragraph No.29 of the judgment and order of the learned Appellate Court and argued that though the Court was satisfied that there was no satisfactory documentary evidence on the point of running the Bhisi by the accused, the incorrect findings were recorded that it was a case exclusively based on the oral evidence. He tried to argue that this is prima facie error of law in recording such findings. He also referred to paragraph No.30 of the judgment of the learned Appellate Court and vehemently argued that when this notebook Exh.36 was not proved, the conviction had been erroneously recorded. He referred to paragraph No.19 of the judgment of the Trial Court and argued that the evidence on the incapacity of the complainant to pay such huge monthly instalments of the deposits was erroneously discarded. The witness gave a material admission that she did not have evidence to prove that she withdrew the amount from the bank. There were no elements of cheating. Bare failing to return the money is not cheating. The elements of Section 3 of the Act of 1978 were not proved. The defence of the applicants was not properly considered that there were enmical term. The collected bond papers do not refer to the Bhisi. He relied on the case of State of West Bengal and others Vs. Swapan Kumar Guha and others ; 1982 (1) Supreme Court Cases 561 and argued that there was absolutely no case to try the accused under the Act of 1978. He has referred to a few paragraphs of the said judgment and argued that the revision deserves to be allowed. However, in the alternate, he prayed for the benefit of Section 4 of the Probation of Offenders Act.

4. Learned counsel for the applicants Hirabai and others adopted the arguments of learned counsel Mr. Ladda on the law points. However, he has reiterated the arguments of Mr. Ladda as regards making out the offence under Section 420 of the IPC. He argued that the charge under Section 406 of the IPC was not framed. He also prayed for the benefit of the Probation of Offenders Act.

5. Learned APP for the respondent/State argued that it was established that the witnesses were the members of the Bhisi run and conducted by the accused. The husband of Subhadrabai was playing an active role in running the scheme. Both Courts have correctly appreciated the evidence, and there is no miscarriage of justice due to incorrect appreciation of evidence. The courts have also discussed about the financial capacity of the complaina