A person cannot be convicted under both Section 406 (Criminal Breach of Trust) and Section 420 (Cheating) of the IPC on the same set of facts, as the presence of deception precludes the element of entrustment.

Prayer: This Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to set aside the judgment and sentence of the Learned Principal District and Sessions Judge, Chengalpattu in Criminal Appeal No. 97 of 2019 dated 28.02.2023 confirming the conviction passed by the Learned Judicial Magistrate, Alandur, in CC.NO. 202 of 2012 dated 15.11.2019 and acquit the petitioner.

ORDER

The Revision challenges the judgment dated 28.02.2023 passed by the learned Principal District and Sessions Judge, Chengalpattu, in Crl.A.No.97 of 2019 confirming the judgment of the learned Magistrate convicting the petitioner for the offence under Sections 406 and 420 of IPC, and sentencing him to undergo simple imprisonment for a period of nine months for the offence under Section 406 of IPC and also to undergo simple imprisonment for a period of nine months and to pay a sum of Rs.9,28,625/- as compensation to victims, in default, to undergo simple imprisonment for a period of five months, for the offence under Section 420 of IPC.

2.The gist of the prosecution case is that the petitioner had collected money from the defacto complainant in the guise of running a chit fund business; that he had not repaid the money due to the defacto complainant; that he had collected money from other persons similarly placed and cheated them to the tune of Rs.9,28,625/-; that on the complaint given by the defacto complainant, an FIR was registered; and that after investigation, the final report was filed against the petitioner for the offences under Section 406 and 420 IPC.

3.The prosecution had examined 15 witnesses. PW1 to PW12 are the victims in the case. PW13, PW14 and PW15 are the investigating officers. The prosecution had marked Exhibits P1 to P17.

4.The trial Court found that the prosecution had established the offences under Section 406 and 420 of IPC on the basis of the evidence adduced on the side of the prosecution and held that since the total amount collected by the petitioner was Rs.9,28,625/-, the victims have to be compensated accordingly and sentenced the petitioner as stated above. The appellate Court confirmed the Judgment of conviction and sentence.

5.It could be seen from the Impugned Judgments that all the witnesses, except PW6, have uniformly stated that in the guise of running a chit fund business, the petitioner had collected money from them and had not paid the said amount to them. Nothing has been elicited from their cross-examination to discredit them. The documents produced by the prosecution also substantiate the claim made by the witnesses.

6.This Court finds no infirmity in the concurrent findings of fact rendered by the trial Court and the appellate Court. However, it is seen that the petitioner has been prosecuted for the offences under Sections 406 and 420 IPC on the same set of facts, which cannot be sustained. It is well settled that the ingredients of the two offences are different. So, if deception is made out, entrustment is ruled out. The evidence suggests that the petitioner has only committed the offence of cheating as he had deceived the victim and collected the money.

7.Hence, the petitioner is acquitted of the offence under Section 406 IPC. The learned counsel for the petitioner has so far deposited Rs.3,00,000/- and has undergone imprisonment of 12 days during trial. However, considering the nature of allegations, this Court is of the view that the interest of justice would be met if the petitioner is sentenced to imprisonment of period already undergone and