C A V ORDER

13/02/2020

1. Cr.R. No.89 of 2006 has been filed challenging the judgment dated

29.01.2005 passed in Criminal Appeal No.17/2004 and Cr.R. No.95 of 2006 has been filed challenging the judgment dated 29.01.2005 in Criminal Appeal No.21/2004, in which the judgment of conviction and sentence passed by the Additional Sessions Judge, Dhamtari, District- Dhamtari, C.G., in Criminal Case No.1589/2003 delivered on

16.12.2003 was upheld, therefore, both the revision petitions are being disposed off by this common order.

2. The complainant- Ajay Kumar Meenpal, lodged F.I.R. in Police Station, Bilaspur, City- Kotwali on 12.06.1998 that applicant Ambika Prasad Mishra was Director of Rewanchal Vitt Avam Vyavasayik Vikas Ltd. and applicant Malkeet singh Gill, Regional Manager of the said company, their office was stituated in Dhamtari since the year 1994-98. The complainant has alleged that he was induced by applicant Malkeet Singh Gill that his company is recognized by Indian Reserve Bank and on making deposits the depositor will receive 08-10% annual interest on the same. The complainant and others made the deposits in the schemes of the company, subsequently their company office was closed and the complainant and others were refused payment from their deposits. Offence was registered under Section 420 of I.P.C. against the applicants, investigation was made and charge-sheet was filed.

3. The trial Court framed charges against both the applicants for commission of offence under Sections 420, 467, 468 and the Section 409 and 120 B of I.P.C. the applicant in both the cases denied the charges and prayed for trial. After completion of trial and they were held guilty for commission of offence under Sections 420, 409, 420 read with 120 B of I.P.C. and Section 409 read with 120 B of I.P.C. The applicant in both the cases were sentenced with R.I. of 07 years, 04 years, 02 years and 01 year respectively and fine of Rs.50,000/-, Rs.10,000/-, Rs.2,000/- and Rs.1,000/- respectively. It was further ordered that the sentence imposed upon the applicants shall be required to be served consequently. This judgment of conviction was challenged and appeal No.17/2004 and 21/2004 by the applicants has been decided by the impugned order. The learned trial Court has upheld the conviction as well as the sentence and also the order of the trial Court that the sentences shall have to be served consequently by the applicants.

4. It is submitted by the learned counsel for applicant in Cr.R. No.89 of

2006- Ambika Prasad Mishra that the learned trial Court as well as the appellate Court both have committed error in convicting the applicant. The company in which this applicant was Director was duly registered and had authority to do business accordingly. No offence of cheating has been committed as it is the company which has suffered the loss and failed. The failure of business of the company cannot be regarded as any ground to persecute the Director and other officials for commission of offence of cheating. The company being registered, the interest of depositors is protected and the loss to the depositors can be recovered by the liquidation process which can be initiated under the provisions of Insolvency and Bankruptcy Code 2016 and as it is a case of period between 1994-1998, the matter of liquidation could have been taken up under the provisions of Company Act, 1956. The conviction of the applicant is only based on assumption which is not supported with any kind of evidence regarding the criminal or fraudulent conduct of the applicant.

5. Placing reliance on the judgment of Supreme Court in Kailash Kumar Sanwatia Vs. The State of Bihar reported in 2003 (7) SCC 399, it is submitted that it was necessary to be proved by the prosecution that the applicant had himself misappropriated or converted to his own use the amount taken in deposits and to prove. There was no reason to convict the applicant for offence under Section 420 or under Section 409 of I.P.C. Theref