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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anubha Rawat Choudhary, J.
Laxmi Narayan Mahato, son of Vijay Mahato and ors. – Petitioners
Versus
The State of Jharkhand - Opposite Party
Cr. Revision No. 172, 1098, 261 of 2014
Decided On : 04-01-2021
Indian Penal Code, 1860 - Sections 420, 406, 467, 468, 471, 109, 120-B, 34 - Code of Criminal Procedure, 1973 - Section 313 – Appeal against judgment of conviction by learned trial court under Sections 406, 418 and 120-B of Indian Penal Code - Appellate court considered evidences on record and separately discussed ingredients of offences for which they were convicted and found that ingredients of each of offences were satisfied and also upheld conviction of appellants under section 418 IPC, though charged, inter-alia ,under section 420 IPC - Learned appellate court dismissed criminal appeals and confirmed judgment of learned trial court in connection with all appellants - Petitioners submitted that there is no evidence on record to suggest that there was any mens rea for commission of offence on part of accused persons and there are no circumstances to suggest that there was any intention on part of accused persons either to cheat or commit breach of trust with depositors - There is no evidence that either said money has been misappropriated at any point of time by these two petitioners or they converted it to their own use or has been used in violation of any legal direction or any legal contract and in absence of any of aforesaid ingredients of Section 406 of Indian Penal code, conviction and sentence of petitioners under Section 406 of Indian Penal Code is perverse and is fit to be set aside –Before learned trial court, argument of defence counsel was that dishonest inducement and element of cheating was not present in form of inducement and accordingly, basic element for commission of an offence under Section 420 of Indian Penal Code was not made out - Argument of prosecution was that case has been proved under Section 418 of Indian Penal Code which was said to be a minor offence of Section 420 of Indian Penal Code - Learned court found that in present case petitioners, at time of offence, were bound to protect interest of depositors and they also caused wrongful loss to depositors whose interest in transaction to which cheating relates and they were bound either by law or by legal contract to protect their interest - Learned trial court was of view that ingredients of offence were of a minor offence to Section 420 of Indian Penal Code and convicted petitioners under Section 418 of Indian Penal Code treating offence under Section 418 of IPC as an offence minor to offence under Section 420 of IPC – Held, ingredient of offence under Section 418 of Indian Penal Code regarding obligation of accused either by law or by legal contract to protect interest of person concerned is not ingredient of offence under Section 420 of IPC - Offence under Section 418 IPC cannot be said to be a minor offence to offence under section 420 IPC - Question with regards to such allegations and corresponding evidence was also required to be put to accused under Section 313 of Cr.P.C. - Neither petitioners were charged under Section 418 of IPC nor any question with regards to said essential ingredient of section 418 of IPC was put to them at stage of recording their statement under Section 313 of Cr.P.C. - Petitioners have been highly prejudiced by conviction of petitioners under Section 418 of IPC no charge having been framed under section 418 IPC - Petitioners could not have been convicted under Section 418 IPC by resorting to provisions of section 222 (2) of Cr.P.C. though charged under section 420 IPC - There is no scope in this revisional jurisdiction to consider as to whether offence under Section 420 IPC was made out or not as petitioners were not convicted under section 420 IPC - Revision petition partly allowed.
ORDER :
Anubha Rawat Choudhary, J.
1. Heard Mr. Anil Kumar, the learned Senior counsel appearing on behalf of the petitioners in Criminal Revision Nos. 172 of 2014 and 261 of 2014.
2. Heard Mr. Gautam Kumar, the learned counsel appearing on behalf of the petitioner in Cr. Revision No. 1098 of 2014.
3. Heard Ms. Priya Shrestha, the learned A.P.P. appearing on behalf of the opposite party- State in Cr. Revision No. 172 of 2014.
4. Heard Mrs. Ruby Pandey, the learned A.P.P. appearing on behalf of the opposite party- State in Cr. Revision No. 1098 of 2014.
5. Heard Mr. Anup Pawan Topno, the learned A.P.P. appearing on behalf of the opposite party- State in Cr. Revision No. 261 of 2014.
6. All the three criminal revision petitions are directed against the common judgment dated 31.01.2014 passed by the learned Sessions Judge, West Singhbhum at Chaibasa in Criminal Appeal No. 100/2013 and Criminal Appeal No. 102/2013, whereby the learned appellate court dismissed the criminal appeals confirming and upholding the judgment of conviction and the order of sentence dated 30.08.2013 passed by the learned Judicial Magistrate, 1st Class, Porahat at Chaibasa in G.R. Case No. 384/1995, T.R. No. 05/2013.
7. The learned trial court convicted the petitioners under Sections 406, 418 and 120-B of the Indian Penal Code (hereinafter referred to as ‘IPC’) and sentenced them to undergo Rigorous Imprisonment for one and half year with fine of Rs. 3,000/- for the offence under Section 406 of Indian Penal Code; one and half year of Rigorous Imprisonment with fine of Rs. 3,000/- for the offence under Section 418 of Indian Penal Code; and one year of Rigorous Imprisonment with fine of Rs. 3,000/- for the offence under Section 120B of Indian Penal Code. It has been directed by the learned court below that in case of default in payment of fine, the petitioner would undergo simple imprisonment for further six months for each section and all the sentences were directed to run concurrently.
8. The prosecution story is based on a written report (Ext.- 8/1) of the then Circle Officer addressed to Officer-in-charge Manoharpur Police Station that he, in the light of Letter No.3 dated 02.12.1995 of the Deputy Commissioner, enquired in relation to Crisent Housing Finance Ltd. and found that the said company was constituted on 04.04.1994 of which one Mirza Suhail Beg was Managing Director, Md. Kalim Khan and Ravi Srivastava were Directors. Shri Ganesh Pramanik (petitioner in Criminal Revision No. 1098 of 2014) worked as Branch Manager of this non-banking company since 04.04.1994 to 07.10.1994 after which, Shri Kanhaiya Sahu (Petitioner No. 2 in Criminal Revision No. 172 of 2014) was the Branch Manager from 07.10.1994 to 31.05.1995. It was alleged that in this nonbanking company, Uma Bose worked as clerk-cum-cashier. Sankh Bahadur, Rajendra Kumar, Bharat Pramanik and Gopal Sahu (Petitioner No. 3 in Criminal Revision No. 172 of 2014) used to collect money from the daily account holders of this bank.
9. During enquiry, it was revealed that Umesh Kumar Singh in his account had deposited a total amount of Rs. 2,100/-, Lakhindra Sahoo had deposited Rs. 980/-, Kiran Gupta had deposited Rs. 2,200/-, Ajit Kumar Gupta had deposited Rs. 975/- and Anand Kumar Gupta had deposited Rs. 2,030/- etc. and were some of the account holders along with others. When these account holders went to withdraw their money from the bank, they found that clerk-cum-cashier, Branch Manager, Managing Director and Directors had fled away locking the banking company and when they contacted the daily collectors, they could not find them. It is alleged that the daily collectors used to take 3% commission from the Branch Manager. With this allegation, a formal First Information Report was drawn (Ext. 1) under Sections 406, 420/34 of Indian Penal Code.
10. After investigation, police submitted charge-sheet bearing no. 19/1998 dated 30.06.2008 under Sections 420/406/467/ 468/471/109/120-B/34 of Indian Pen
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