Jharkhand High Court
Laxmi Narayan Mahato vs The State Of Jharkhand ... ... Opposite ... on 4 January, 2021
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 172 of 2014
1.Laxmi Narayan Mahato, son of Vijay Mahato
2.Kanhaiya Sahu, son of Jagdish Sahu
3.Gopal Sahu, son of Jagdish Sahu
4.Albina Lugun, wife of Bishwajeet Samad
5.Azad Hembrom, son of Butru Hembrom
... ... ... Petitioners
-Versus-
The State of Jharkhand ... ... Opposite Party
With
Cr. Revision No. 1098 of 2014
Ganesh Pramanik @ Ganesh Paramanik, Son of late Sudhir
Parmanik ... ... ... Petitioner
-Versus-
The State of Jharkhand ... ... Opposite Party
With
Cr. Revision No. 261 of 2014
Ashraf Ali, Son of Late Akbar Ali ... ... ... Petitioner
-Versus-
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Anil Kumar, Senior Advocate Ms. Chandana Kumari, Advocate (in Cr. Rev. 172/14 and Cr. Rev. 261/14) Mr. Gautam Kumar, Advocate (in Cr. Rev. 1098/14) For the Opp. Party : Ms. Priya Shrestha, A.P.P. (In Cr. Rev. 172/14) Mrs. Ruby Pandey, A.P.P. (In Cr. Rev. 1098/14) Mr. Anup Pawan Topno, A.P.P. (In Cr. Rev. 261/14)
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Through Video Conferencing
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CAV on 14.09.2020 Pronounced on 04.01.2021
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.
22. 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 judgement 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.
38. 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 non- banking 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.
410. 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 Penal Code against 18 persons including 10 persons who were named in the First Information Report.
11. It has been recorded in the judgement passed by the learned trial court that Mirza Suhail Beg, Md. Kalim Khan and Ravi Srivastava, all three are absconders. Cognizance of the offence under Sections 420/406/467/468/471/109/120-B/34 of Indian Penal Code was taken on 22.07.1998 and out of 18 accused persons, the aforesaid three persons were declared absconder by the court and permanent warrant of arrest was issued against them. Three accused persons were not sent up as accused. Accused Uma Bose was declared absconder on 05.09.2000 and permanent warrant of arrest was issued against her on 11.08.2006. Sankh Bahadur was declared absconder on 13.07.2012 and permanent warrant of arrest was issued against him on 28.08.2012. Further, Kamal Raj Singh was declared absconder on 12.06.2013 and permanent warrant of arrest was issued against him on 06.08.2013. The proceeding against Bharat Pramanik was dropped on 13.07.2012 as he was reportedly dead.
Charges were framed against 11 accused persons namely, Ganesh Pramanik (petitioner in Cr. Rev. No. 1098 of 2014), Kanhaiya Sahu (Petitioner No. 2 in Cr. Rev. No. 172 of 2014), Gopal Sahu, Albina Lugun, Azad Hembrom, Laxmi Narayan Mahato (Petitioner Nos. 3, 4, 5 and 1 respectively in Criminal Revision No. 172 of 2014), Sankh Bahadur, Rajendra Prasad, Bharat Pramanik and Kamal Raj Singh on 17.03.2001 and charge against Ashraf Ali (Petitioner in Cr. Rev. No.261 of 2014) was framed on 11.07.2001 under Sections 420/ 406/467/468/471/120-B of Indian Penal Code. In the present 5 proceedings, eight persons faced the trial which included the present petitioners and Rajendra Prasad.
The charge was read over to them and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. After closure of evidence, statement of the accused was recorded under Section 313 of Code of Criminal Procedure wherein the allegations and evidences appearing against the accused persons were explained to them, to which they denied and claimed innocence. However, the accused persons did not lead any defence evidence.
12. The learned trial court acquitted the eight persons facing trial, namely, Rajendra Prasad, Albina Lugun, Gopal Sahu, Azad Hembrom, Ashraf Ali, Laxmi Narayan Mahato, Kanhaiya Sahu and Ganesh Pramanik of the charges under Sections 467, 468 and 471 of the Indian Penal Code in absence of evidence and held them guilty only under Sections 406/418/120-B of Indian Penal Code and convicted them under the said sections. Although charge was interalia framed under section 420 IPC but the learned trial court convicted the accused under section 418 by referring to section 222(2) of Cr.P.C and treating offence under section 418 as a minor offence of section 420 IPC.
13. Before the learned lower appellate court, Rajendra Prasad filed a separate appeal which was numbered as Criminal Appeal No. 99 of 2013. The appeal of Ganesh Pramanik was numbered as Criminal Appeal No. 102 of 2013 and the appeal of all the petitioners in Criminal Revision No. 172 of 2014 as well as the petitioner in Criminal Revision No. 261 of 2014 was subject matter of Criminal Appeal No. 100 of 2013. All the appeals were tagged and were decided by the impugned judgement dated 31.01.2014.
14. The learned appellate court considered the evidences on record and separately discussed the ingredients of the offences for which they were convicted and found that the ingredients of 6 each of the offences were satisfied and also upheld the conviction of the appellants under section 418 IPC , though charged, interalia ,under section 420 IPC. The learned appellate court dismissed the criminal appeals and confirmed the judgement of the learned trial court in connection with all the appellants.
15. In the present proceedings, all the persons except Rajendra Prasad (who was appellant in Criminal Appeal No. 99 of 2013 before lower appellate court) who faced the trial, are the petitioners before this Court.
16. Arguments on behalf of the petitioners a. The learned counsels submitted that the prosecution has examined fifteen witnesses and P.W. 13 was declared hostile. P.W. 10 and 12 were the seizure list witnesses in whose presence, it is being said that pass book of different persons were seized.
b. The learned counsels for the petitioners submitted that seven persons are there before this Court in this proceedings, out of which the case of Kanhaiya Sahu and Ganesh Pramanik are different as compared to the others namely, Laxmi Narayan Mahato, Gopal Sahu, Albina Lugun, Azad Hembrom and Ashraf Ali.
c. The learned counsels submitted that only P.W-2 has taken the name of Laxmi Narayan Mahato in commission of the alleged offence and no other witness has stated against him. So far as another accused namely, Albina Lugun is concerned, her name has been taken by P.W.-7 in commission of the alleged offence. The learned counsels submitted that except these two accused persons, no other accused person has been named and therefore, the case of five accused persons is to be seen differently. d. The learned counsels further submit that the evidence of P.W. 2 is that Laxmi Narayan Mahato came to him along with Kanhaiya Sahu although he deposed that the money was collected by agent. It is submitted that the evidence of this witness cannot be relied upon as he has admitted in Para-5 of his deposition that he had given statement for the first time and did not give his passbook to the police. In Para-8 of his deposition, he has specifically stated that he cannot say as to whether these two accused (Laxmi 7 Narayan Mahato and Kanhaiya Sahu) have misappropriated his money or not.
e. So far as P.W.-7 is concerned, he has identified the signature of accused Albina Lugun in the passbook and except this, nothing has been stated against her. It is submitted that although P.W.-7 has identified the signature in the passbook, but he has stated that Daroga had not collected any document from him and he does not know about the original documents which were filed. Thus, it is submitted by the learned counsels that nothing remains against the accused Albina Lugun for constituting the offence as alleged.
f. The learned counsels further submitted that so far as three accused persons namely, Gopal Sahu, Azad Hembrom and Ashraf Ali are concerned, no witness has stated anything against them and no document has been proved against them. It is submitted that their conviction cannot be sustained.
g. The learned counsels thereafter submitted that in spite of the aforesaid facts and circumstances, the learned trial court recorded its finding in Para-23 and 24 on the basis of the facts which were never proved by the prosecution and only on the basis of conjectures and surmises, it has been held that the accused persons were agent and daily collectors of money and as such, the findings given by the learned trial court are ex-facie perverse with respect to the five accused persons namely, Laxmi Narayan Mahato, Gopal Sahu, Albina Lugun, Azad Hembrom and Ashraf Ali.
h. While advancing the argument on behalf of the accused Kanhaiya Sahu and Ganesh Pramanik, the learned counsels submitted that the witnesses, who have deposed against these two accused persons are:-
(i) P.W.-2, Umesh Kumar Singh, who deposed that Laxmi Narayan Mahato was the agent who came to him alongwith Kanhaiya Sahu- the Branch Manager.
Further, this witness has produced the passbook which was marked as Exhibit- 4 with objection. This witness deposed that he had given the statement for the first time and had not given his passbook to the police. He further stated in para 8 of his deposition that he cannot say as to whether these two accused have misappropriated his money or not.
8(ii) P.W.-3, Prakash Kumar Sah had deposed that he got his account opened in Crisent Housing Finance Ltd. at Manoharpur branch on asking of Kanhaiya Sahu. Subsequently, he deposed that Ganesh Pramanik was the Branch Manager at that time and further, the money was taken by Sankh Bahadur and Gopal Thakur. This witness in Para-7 has deposed that he had not made any statement before the police and for the first time he has given his statement before the court. In Para-8, he deposed that he does not know who took his money and where it has gone.
(iii) P.W.-4, Ajit Kumar Gupta has deposed that he got his account opened with the Crisent Housing Finance Ltd., Manoharpur and he identified the signature of Ganesh Pramanik in the passbook, which was marked as Exhibit- 5.
(iv) While referring to evidence of P.W.-5, the learned counsels submitted that this witness stated that he got his account opened in the year 1999, whereas the case relates to the year 1994-95 and therefore, his evidence cannot be taken into consideration. Although, he had simply stated that Ganesh Pramanik was the Branch Manager of the said finance company.
(v) While referring to the evidence of P.W.-6, the learned counsels submitted that he has stated that his account was opened 5 to 6 years back, when Kanhaiya Sahu, agent came to his house and asked him to open an account.
(vi) While referring to evidence of P.W.-7, the learned counsels submitted that this witness has stated that in the year 1994-95, Kanhaiya Sahu and Ganesh Pramanik came to open the account in the said company. He got the account opened and deposited Rs. 10/- for 7 to 8 months. He identified the signatures of Albina Lugun, Kanhaiya Sahu and Ganesh Pramanik in passbook. He further identified the signature of Ganesh Pramanik in carbon copy of account opening form. In Para-6 of his deposition, he has stated that Daroga Ji had not collected any document from him and he does not know about the original of the documents filed by him.
9(vii) P.W.-8, Tarun Kumar Bose is the brother of the accused Uma Bose, who has stated that Ganesh Pramanik and thereafter, Kanhaiya Sahu was the Branch Manager of the said finance company.
(viii) P.W.-9, Ram Bilas Yadav has also deposed that Ganesh Pramanik and Kanhaiya Sahu were the Branch Managers of the said finance company and the money was collected by Bharat and Bahadur.
(ix) P.W.-11, Lakhindra Sahu stated that Ganesh Pramanik and Kanhaiya Sahu were the Branch Managers and Kanhaiya Sahu and Bharat Pramanik used to collect money.
(x) P.W.-14, Baleshwar Baraik is the informant of the case. He has deposed that Ganesh Pramanik and Kanhaiya Sahu were the branch managers.
i. Learned counsels for the petitioners submit that taking into account the aforesaid deposition of the various witnesses, it appears that the witnesses have stated that Kanhaiya Sahu and Ganesh Pramanik, although were the Branch Managers, but some of the witnesses have simultaneously taken the name of these two accused persons and P.W. 14 is the only witness who has stated the period from which these two persons were the Branch Managers of the said non-banking financial institution. j. The learned counsels submitted that even it is presumed that these two persons were the Branch Managers of the non-banking financial institution at the relevant point of time, but no witness has stated that these two persons used to collect the money or the money which was being given to different persons was deposited by these two persons and as such, there is no question of any entrustment of the property by the witnesses to these persons.
k. The learned counsels then submitted that the prosecution has not brought on record the total amount of money deposited by total number of depositors and also the method and process adopted by said non-banking financial institution. The alleged passbooks were said to be proved by the witnesses, but the witnesses have not deposed that the amounts were entrusted to these two managers i.e. Ganesh Pramanik and Kanhaiya Sahu . It is submitted that in absence thereof, no offence is made out against these two persons.
1017. While referring to the ingredients of offence under the sections of IPC involved in the present case , the learned counsels submitted as under:
a. For constituting an offence under Section 406 of Indian Penal Code, the following ingredients are required to be proved by the prosecution:
(i) Mens rea for commission of the offence.
(ii) There must be an entrustment and there must be misappropriation or conversion to its own use or use in violation of legal direction or of any legal contract.
(iii) The accused was entrusted with the property or with any dominion over it.
(iv) The accused dishonestly misappropriates or converts to his own use of such property.
(v) The accused dishonestly uses or disposes of that property or wilfully suffers any other person so to do in violation of
(a) Any direction of law prescribing the mode in which such trust is to be discharged, and
(b) Any legal contract, express or implied, which he has made touching the discharge of such trust.
b. The learned counsels for the petitioners submitted that there is no evidence on record to suggest that there was any mens rea for commission of offence on the part of the accused persons and there are no circumstances to suggest that there was any intention on the part of the accused persons either to cheat or commit breach of trust with the depositors. These two persons i.e. Ganesh Pramanik and Kanhaiya Sahu, at no point of time, were entrusted with money which were given by the witnesses and even the circumstances do not suggest that at any point of time, entrustment of money has been there to these petitioners. There is no evidence that either the 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 the aforesaid ingredients of Section 406 of Indian Penal code, the conviction and sentence of the petitioners under Section 11 406 of Indian Penal Code is perverse and is fit to be set- aside.
c. By referring to the conviction of the petitioners under Section 418 of Indian Penal Code, the learned counsels submitted that the conviction under this section is also perverse. They submitted that the learned trial court has proceeded that Section 418 of Indian Penal Code is minor to Section 420 of Indian Penal Code in terms of Section 222(2) of Code of Criminal Procedure and such approach is not legal. They submit that it is not only the punishments which have been prescribed under Sections 418 and 420 of IPC, which have to be seen for the offences as to whether the offence under Section 418 of IPC is minor offence of Section 420 of IPC, rather the other ingredients which are also required to be proved must be there in both the provisions. The learned counsels submitted that the most important ingredient for constituting an offence under Section 418 of Indian Penal Code is that, because of his knowledge that this act was likely to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound either by law or by a legal contract to protect. Whereas in Section 420 of Indian Penal Code, one of the important ingredients is that, dishonestly induces the person deceived to deliver any property and these two ingredients of evidence are absolutely different and as such, Section 418 of Indian Penal Code cannot be said to be a minor offence of Section 420 of Indian Penal Code in terms of Section 222 of Code of Criminal Procedure. They submit that accordingly the findings given by the learned courts below are illegal and perverse.
d. In furtherance of the argument, the learned counsels submitted that even if it is presumed that offence under Section 418 of Indian Penal Code is a minor offence, then also there is no evidence on record even on the basis of circumstances to presume that the accused had knowledge that their act was likely to cause wrongful loss to the persons cheated and whose interest, they were bound to protect. They submitted that in absence of aforesaid evidences, the conviction and sentence of the petitioners under Section 418 of Indian Penal Code is fit to be set-aside.
12e. The learned counsels, thereafter, referred to the criminal conspiracy under Section 120B of Indian Penal Code and submitted that the Managing Director and Director of the said finance company are not facing trial and they have been declared absconder for the last 20 years and there is no agreement, direct or implied, which can be said to be proved by the prosecution in the present case to show any conspiracy with aforesaid absconding persons. They submit that in absence of the same, the petitioners cannot be held guilty of the offence under Section 120B of Indian Penal Code.
f. The learned counsels have relied upon the following judgements reported in :
(i) (2009) 8 SCC 1-to submit that basic ingredients of Sections 405 and 120B are absent in the present case.
(ii) (1996) 6 SCC 32, and (2007) 13 SCC 107 to submit that basic ingredients of offence of cheating under section 415 and accordingly offence under section 418 IPC are absent in the present case.
g. While summing up, the learned counsels submitted that the impugned judgements convicting and sentencing the petitioners are fit to be set-aside as there is no legal evidence to convict the petitioners under the Sections under which they have been convicted.
18. Arguments on behalf of the opposite party- State are as under:
i. The learned counsels appearing for the opposite party- State, on the other hand, vehemently opposed the prayer of the petitioners and submitted that there is no scope for re-appreciation of evidence by this Court and coming to a different finding. They also submitted that the present case is not a case of no evidence, rather there are ample evidences against both the petitioners who were the Managers in the Branch of the non-banking financial company i.e. Kanhaiya Sahu and Ganesh Pramanik and also against the other petitioners who were collecting the money. The learned counsels submitted that after collecting the money from various persons, including the persons whose money was mentioned in the First Information Report, the petitioners alongwith others, disappeared and closed the branch of the non-banking financial company.13
ii. The learned counsels further submitted that for the purposes of criminal conspiracy, there may be direct evidence or circumstantial evidence and all the petitioners alongwith others, were rightly made accused. They also submitted that so far as the other persons who are absconding are concerned, merely because they are absconding, the same does not mean that the petitioners have not entered into criminal conspiracy with such absconding persons.
iii. The learned counsels for the opposite party further submitted that the learned courts below have considered all the evidences on record in detail and also the basic ingredients for commission of the offences and accordingly, have rightly convicted the petitioners. iv. The learned counsels then submitted that the learned trial court, while scrutinizing the evidence, found that the ingredients of the offence under Section 418 of Indian Penal Code were proved which was lesser offence as compared to the offence under Section 420 IPC and there was no illegality in convicting the petitioners under Section 418 of Indian Penal Code in spite of the fact that the petitioners were charged under Section 420 of Indian Penal Code. The learned counsels submitted that considering the nature of offence and the manner in which the same has been committed, no sympathetic view is called for and the present revision petitions are fit to be dismissed.
Findings of this Court
19. After hearing the learned counsels for the parties, this Court finds that the informant who was a Circle Officer, has been examined as P.W.-14. He has fully supported the prosecution case by stating that he was posted as Circle Officer, Manoharpur and he had filed the case on 06.12.1995 after conducting enquiry. The enquiry was conducted pursuant to the letter issued by the Deputy Commissioner dated 02.12.1995 when it was found that one branch of the said non-banking financial company i.e. Crisent Housing Finance Ltd. situated at Manoharpur, whose Directors were Mirza Suhail Beg, Md. Kalim Khan and Ravi Srivastava, Branch Manager was Ganesh Pramanik and clerk-cum-cashier was Uma Bose, used to collect 14 money through its people on daily basis and the persons from whom the amount was collected, were the account holders. He has clearly deposed the name of the agent Gopal Sahu and others, who had taken money from various persons including Lakhindra Sahoo, Rajendra Kumar, Kiran, etc. This money was collected by the agents and they used to get 3 % commission from the Branch Manager. However in para 19 of his cross- examination he has stated that he could not find any proof that the agents used to get 3% commission. P.W.-14 has deposed that the company was a fake company and no document of registration was shown to him. Its Director was never seen in Manoharpur and he was a fictitious person and the Branch Manager was the permanent resident of Manoharpur. He has also deposed that the documents shown to him by the Manager Kanhaiya Sahu and cashier Uma Bose revealed that the head office was situated in Gorakhpur. During enquiry, it was revealed that the head office had been transferred to Lucknow. Upon enquiry, he learnt that there was no office opened in Lucknow. He had clearly deposed that the Branch Manager and agents have collected the amount wrongfully for which the customers had complained to the Deputy Commissioner, West Singhbhum. He identified the accused Kanhaiya Sahu who was present in the dock and with regard to other accused, he claimed to identify them on seeing who were on representation. With regard to Azad Hembrom, P.W.-14 stated that he did not identify him. P.W.-14 has further deposed that the agents used to collect money from the account holders and submit it to the manager. He also deposed that he came to know from agents, Branch Manager and customers that money was collected and deposited to Branch Manager and Branch Manager used to give receipt to the agents of deposit of the money and he had given the receipts to the police. The cashier used to manage the account of money and used to deposit the money finally to the 15 company owner with the consent of the Branch Manager and he has stated that Uma Bose, who was also a co-accused, was the cashier. However, he has further deposed that he cannot say whether Uma Bose deposited the money in the company account or not and what was the understanding between Uma Bose and the three directors of the company.
20. P.W.-1 is the investigating officer of the case, who was the Sub-Inspector during the period from 1995 to 1998 and he was made the investigating officer of the case on 17.09.1997 and earlier the investigation was carried out by another officer-in- charge namely, Anil Kumar (P.W-15) . This investigating officer has stated that on 18.03.1998, he proceeded to Gorakhpur to arrest some of the accused persons and there he contacted the local police for arresting the accused persons. He conducted raid in the house of Mirza Suhail Beg, Md. Kalim Khan and Ravi Srivastava, but did not find them there and also conducted attachment of house of Ravi Srivastava in presence of two witnesses. He also deposed that he conducted the attachment of the house of Mirza Suhail Beg and Md. Kalim Khan. Thereafter, he proceeded for Kanpur for further investigation in relation to the company and contacted the local police station in order to conduct investigation in the office of the Company Registrar, but he did not find anything there. Thereafter, he came to Lucknow where the office of the said finance company was alleged to have been opened. He contacted one shopkeeper who stated that this company was opened above his house three to four years back and a person namely, Samshul Rijvi had given this place for opening the office of the said finance company. The shopkeeper told him that there was quarrel amongst the staffs of the company due to which the company was closed and he was not getting any rent of the premises. Upon opening the office, the investigating officer found only furniture in the premises. P.W.-1 got the phone number of 16 Samshul Rijvi and on calling, he found that the number was of different person, but he could not get any further clue.
21. P.W.-2, P.W.-3, P.W.-4, P.W.-5, P.W.-6 and P.W.-7 are the persons/customers who had opened their account in the said housing finance company. P.W.-2 has stated that agent Laxmi Narayan Mahato came to him and Kanhaiya Sahu was the Branch Manager. He used to take money from him and said to have deposited Rs. 2,000/- @ Rs. 10/- every day and when he approached the Bank, he found the branch closed and all had left. All these witnesses have supported the prosecution case and have taken the name of the Branch Managers as well as the other petitioners who are said to have approached them for collecting money and all of them have stated that when they approached the Bank, they found the branch closed. Similarly, the other witnesses namely P.W.-15, 16, 17, 18 and 19 have also fully supported the prosecution case. However, P.W.-13 was declared hostile who did not support the prosecution case and his evidence was found to be irrelevant for the prosecution.
22. Inspector Anil Kumar was examined as P.W.-15. He was posted as Officer-in-charge, Manoharpur at the time of registration of the First Information Report. This witness has identified the place of occurrence and has deposed that during investigation, accused Umesh Kumar Singh, Kiran Gupta and Anand Kumar Gupta submitted photocopy of the passbook which he had duly seized preparing separate production-cum- seizure list and identified it as Exhibit 10 to 10/6. After which he had recovered from the house of Kanhaiya Sahu, who was the Manager of the finance company, the passbook and the money receipts through which the money from the customers were used to be collected and in which also, 23 receipts given by Kanhaiya sahu, a few receipts collected by agent Rajendra Prasad, four temporary receipts by agent Kamal Raj Singh, six receipts collected by Ganesh Pramanik, three receipts by agent 17 Laxmi Narayan Mahato and one collected money receipt by Ashraf Ali as well as one receipt collected by Albina Lugun which he duly seized after preparation of seizure list. He identified the seizure list which was marked as Exhibit 11. He also identified three passbooks which were of Shri Jagdish Sahu, Ram Bilash and Chakradhar Nayak and were marked as Material Exhibits- I to III. He identified the pocket diary of Kanhaiya Sahu which was marked as Material Exhibit-IV, Passbook of Ashok Poddar which was marked as Material Exhibit-V and total 88 receipts which were marked as Material Exhibits- VI to VI/87. During his cross-examination, he deposed that he himself seized the passbooks and came to know the aforesaid facts from the said pocket diary and statement of other accused, who was the Branch Manager and was on the post. However, he could not get any document to show how much total amount was collected by these agents, but from the documents seized from the house of Manager Kanhaiya Sahu, he came to know that it is mentioned in the case-diary. He could not get any clue as to whether the collected money was kept by the agents or by the Branch Manager or it was sent to the Managing Director. The agents were of Manoharpur and they did not create any hindrance in the investigation. The Managing Directors and others were still absconding. He has stated that the agents used to give money receipts for the collected money, but sometimes receipts were not given. He identified the receipts which were marked as Material Exhibits- VII to VII/7. He deposed that he did not get any appointment letter for appointment with officials of the company.
23. This Court finds that the learned trial court after recording the evidences of the various witnesses, scrutinized the evidences in Para 22 of the impugned judgement and recorded its findings in Para- 22 and 23 of the impugned 18 judgement. Para 23 of the impugned judgement of the learned trial court reads as under:
"23. Thus it has been proved that out of present eight accused persons facing trial, two persons namely, Ganesh Pramanik and Kanhaiya Sahoo were the Branch Managers and six other namely Rajendra Prasad, Gopal Sahoo, Albina Lugun, Laxmi Narayan Mahato, Azad Hembrom and Ashraf Ali were the agents. The evidence of the witnesses i.e. passbook holders are categorical and in clear terms that they (the agents) being the local people taking the persons in good faith insisted them to open their accounts in the Company, which is fruitful and thereby they deposited the money and one witness namely Ganpat Prasad Gupta, who has been examined as P.W.-6 has categorically deposed that Kanhaiya Sahoo came to his house, instigated him to open his account and on his instance on being satisfied, he opened his account and started depositing Rs. 10/- every day and he deposited money at Rs.10/- every day for a period of total 11 months and deposited about Rs. 2500-2600/-. Thus, they deliberately convinced the passbook holders creating relationship of trust between them and the passbook holders and obtained money. Thus, the element of entrustment is proved. Further, when they being the local people being instrumental in the affairs of the company and specially Ganesh Pramanik and Kanhaiya Sahoo being the Branch Managers, who were in very much of helm of affairs and also being the employees were duty bound to protect the trust which they themselves created being actively convincing people to deposit the money. Thus, the element of entrustment gets clearly proved. Further, they being the local people, their subsequent conduct as an omission and relevant u/s 8 of the Indian Evidence Act after which the Co. has fled proves the element of misappropriation or violation of the legal contract created out of faith and trust they created in the mind of the depositors (by saying that they will get the money after maturity) in the sense that when the Bank was fleeing, they being the helm of affairs 19 must be knowing or ought to have known and intimated this fact to the passbook holders whose faith and trust they had sought and got them agreed to deposit the money that, look Bank is about to flee, save your money if you can or you can take legal action as that was the appropriate time and that would have the appropriate conduct showing honest intention on their part as they were employees of the Co. Thus, element of entrustment and misappropriation thereafter also gets proved U/s. 405/406 of the Indian Penal Code, 1860."
24. The learned trial court also considered the conspiracy angle in Para-24 of the impugned judgement and after considering the evidences on record held as follows:
"24. Further for an offence U/s. 120-B of I.P.C., 1860, Section 120-A defines criminal conspiracy providing When two or more persons agree to do, or cause to be done,(i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
Here in this case, the two accused persons namely Ganesh Pramanik and Kanhaiya Sahoo the Branch Managers of the Co. and other six namely Rajendra Prasad, Gopal Sahoo, Albina Lugun, Laxmi Narayan Mahato, Azad Hembrom and Ashraf Ali were allegedly agents and it has been proved that they were the daily collectors of money. Evidence has come in para 19 of P.W. 14 that he did not get 3% commission as an agent. Then a question arises that when getting money i.e. collection of money by the agents from the passbook holders has been proved they must be getting something or something in lieu of it. The argument of the learned defence counsel that they were illiterate persons and they were getting commission on the collected money and thus they were running their livelihood as an unemployed people is not sustainable in the eye of law as evidence of getting 3% commission has not come on the record and been proved. So, they must be getting something in lieu of it and agreement substantiated and proved by the conduct of the 20 agents of collecting money proves the element of agreement between the bank, two Branch Managers namely Ganesh Pramanik and Kanhaiya Sahoo and the agents which was not in itself illegally which though may not have done illegally but by illegal means in the sense that when they were convincing the people instigated them creating faith in their mind to deposit the money, it was their duty to look after the interest of the depositors in the sense that they represent them and took them in their belief convincing that the Co. is fruitful and they would get their money after maturity, which has been proved by the conducts of the agents and the Managers and the subsequent happening of fleeing away of the Bank without giving the deposited money or the maturity amount to the depositors and by the fact they kept on beating about the bush when they approached after company fled away. Thus, a case U/s. 120-B as well as Section 406 of I.P.C., 1860 gets proved."
25. The learned trial court considered the charges under Section 420 of Indian Penal Code and also considered the argument of the defence that dishonest inducement i.e. element of cheating was not present in the form of inducement and it was argued by the prosecution that offence under Section 418 of Indian Penal Code was proved.
26. The learned trial court was of the considered view that the accused cheated the persons and at the time of commission of offence, the accused were bound to protect the interest of the depositors and the accused also caused wrongful loss to the depositors whose interest were involved in the transactions. The accused were bound to protect their interest being local people and they, by their overt act and active participation, convinced and induced these depositors and created faith in their mind that the company is trustworthy and thereby, the depositors deposited the money which has been proved. Accordingly, the learned trial court was of the view that the 21 aforesaid ingredients were of Section 418 IPC which is a minor offence as compared to Section 420 of Indian Penal Code and by referring to Section 222(2) of Code of Criminal Procedure, convicted the petitioners under Section 418 of Indian Penal Code.
27. So far as the charges under the Sections 467, 468 and 471 of IPC are concerned, the learned court found that there was no sufficient evidence and acquitted the petitioners under those sections and convicted the petitioners only under Sections 406, 418 and 120B of Indian Penal Code.
28. This Court finds that the learned appellate court again scrutinized all the evidences on record and dealt with ingredients of Section 120B of Indian Penal Code in Para-10 of the impugned judgement, ingredients of Sections 420/418 of Indian Penal Code in Para-11 and ingredients of Section 406 of Indian Penal Code in Para-13 of the impugned judgement. The learned appellate court, after scrutinizing the evidences on record and considering the basic ingredients of offences under Sections 406, 418 and 120B of Indian Penal Code, recorded its observation in Para-14 of its judgement.
29. This Court finds that not only the evidences on record were thoroughly scrutinized by the learned courts below, but the learned courts have returned concurrent findings based on oral as well as documentary evidences including those of the depositors of money and were the victims of the case and also considered the conduct of the petitioners who were agents/managers of the company when the branch was abruptly closed and all the accused persons were not found.
30. The learned counsels for the petitioners, while advancing their arguments, have tried to argue the case with an idea of re-appreciation of the evidences on record. Considering the evidences of the witnesses, it cannot be said that the present case is a case of no evidence against the present petitioners, 22 rather there are enough materials and evidences, both oral and documentary against the petitioners as is reflecting from the impugned judgements coupled with the aforesaid conduct of the petitioners upon sudden closure of the branch. There is no scope for reappreciation of evidences and coming to a different conclusion in revisional jurisdiction except in case of perversity and accordingly the case has to be viewed within the limited jurisdiction.
31. So far as the offence under Section 120B of Indian Penal Code is concerned, out of the eight petitioners, two persons namely Ganesh Pramanik and Kanhaiya Sahu were the branch managers of the non-banking financial company and the other six persons including one Rajendra Prasad and other petitioners were agents who were daily collectors of money. It is not in dispute that the managing directors as well as the directors of the company are also co-accused in the instant case who are absconding. Thus, out of seven petitioners before this court, five were agents who were daily collectors of money who claimed in defence that they were getting 3% commission on the collected money which could not be proved by the defence and even the prosecution could not find any such material to show that they were getting commission. The aforesaid circumstance also with other circumstances based on materials on record including the conduct of the petitioners who had left when the branch was suddenly found closed, led the learned trial court to hold that the agreement to commit the offence was substantiated and proved by the conduct of the agents of collecting money which proved the element of agreement to commit the alleged offence amongst the non-banking financial company , two branch managers namely Ganesh Pramanik and Kanhaiya Sahu and the collecting agents. The learned trial court was of the considered view that the accused branch managers and agents were convincing the people and instigating them 23 creating faith in their mind to deposit the money. Further, there is enough material on record that the depositors (victims) had deposited the money through the petitioners who were agents / branch managers, after being instigated and having faith on them and when they went to take out money from the branch of non-banking financial institution company, the branch was found closed and ultimately their money was never recovered. The learned trial court considered the circumstantial evidence for the proof of meeting of mind for commission of the alleged offence amongst the non-banking financial company, the two branch managers namely Ganesh Pramanik and Kanhaiya Sahu and their agents and convicted them under Section 120B as well Section 406 of Indian Penal Code. It is not in dispute that money collected from the depositors by the non-banking financial company through the agents and branch managers was ultimately misappropriated and one fine morning, the branch itself was found closed and the managers and other personnel of the company were not available. Thus, the element of entrustment as well as misappropriation was also proved based on evidence. The learned trial court, after considering the evidences on record, clearly held in para 23 of its judgement that the element of entrustment and misappropriation thereafter was proved and accordingly, offence under Section 405/406 of Indian Penal Code was also proved.
The learned lower appellate court also considered the basic ingredients of offence of criminal breach of trust as defined under Section 405 of Indian Penal Code and was of the view that the accused had dominion over the property collected by them or through their agents from the depositors and the money was to be returned to the depositors on maturity and thus, held that a clear case of criminal breach of trust was made out against the petitioners who were agents/managers of the non-banking financial institution. The learned appellate court 24 also considered the ingredients of the offence under Section 120B of Indian Penal Code and was of the view that there is concrete evidence that the petitioners used to collect money daily in a routine way from the depositors and issued money receipts and they failed to explain as to whether the money was transmitted to the alleged directors or it was used by them and what was their remuneration. The address of the directors and head office given by them were also not found functional and even without making enquiry as regards registration of the said company by the petitioners, several money transactions were entered into. The learned lower appellate court was also of the view that all these facts and circumstances only suggest a deep- rooted conspiracy amongst the appellants and the alleged directors of the company and was of the view that although there is no direct evidence which is seldom possible as regards conspiracy, but the circumstances of the case are self- explanatory that the illegal banking business was being carried on by the petitioners. Accordingly, the learned lower appellate court was also of the view that the basic ingredients of Section 120B of Indian Penal Code was well-proved.
32. Thus, this Court finds that the learned lower appellate court also considered the circumstantial evidence regarding criminal conspiracy and held the petitioners guilty of offence under Section 120B of Indian Penal Code. This Court does not find any illegality or perversity so far as the conviction of the petitioners under Section 406 of Indian Penal Code read with Section 120B of Indian Penal Code is concerned.
33. Once the conviction under Section 120B of IPC is sustained, it is immaterial as to what role was exactly played by different persons and in the present case, one role or the other, is certainly attributable to each of the accused persons. The very fact that a branch of non-banking financial company was 25 opened in a remote village, the trace of which company could not be found by the investigating officer and the trace of such company could not be given even by the accused persons, either in their defence or in their statements under Section 313 of Code of Criminal Procedure and also the fact that the agents, in connivance with the Branch Managers, collected the money by gaining over their confidence, issued passbooks showing deposits, issued receipts showing deposits and one fine day, they all disappeared and closed the bank, are enough circumstantial evidences to sustain the conviction of the petitioners for the alleged offence under Sections 406/120 B of Indian Penal Code.
34. In the judgement passed by the Hon'ble Supreme court and relied upon by the learned counsels for the petitioners "Sudhir Shantilal Mehta v. CBI", (2009) 8 SCC 1 , it has been held in para 113 and 114 as under:-
"113.Criminal conspiracy is an independent offence. It is punishable independent of other offences; its ingredients being:
(i) an agreement between two or more persons.
(ii) the agreement must relate to doing or causing to be done either
(a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal means.
It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. While however doing so, it must bear in mind that meeting of the minds is essential; mere knowledge or discussion would not be. As the question has been dealt with in some detail in Criminal Appeal No. 76 of 2004 (R. Venkatakrishnan v. CBI), it is not necessary for us to dilate thereupon any further.
26114. We may, however, notice that recently in Yogesh v. State of Maharashtra, a Division Bench of this Court held:
"25. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement."
(emphasis supplied) The said judgement Yogesh v. State of Maharashtra is reported in (2008) 10 SCC 394."
35. It has been held by the Hon'ble Supreme Court in the case of "Shivanarayan Kabra v. State of Madras" reported in AIR 1967 SC 986 that, it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things, it is not always possible to prove dishonest intention by any direct evidence. It can be proved by a number of circumstances from which a reasonable inference can be drawn.
36. This Court further finds that the conviction under Section 120B and Section 406 of Indian Penal Code by both the learned courts below has well-reasoned findings containing and dealing with the basic ingredients of the said offence which was duly found by appreciating the materials on record including the 27 surrounding circumstances and the conduct of the accused and the incriminating circumstances formed a chain of events from which a conclusion about the guilt of the accused could be drawn and was drawn by both the learned courts below. There is no scope in revisional jurisdiction to come to a different finding in connection with the said offences under Section 120B read with Section 406 of Indian Penal Code.
37. So far as the conviction under Section 418 Indian Penal Code is concerned, it is not in dispute that the petitioners were also charged under Section 420 of IPC but were convicted under section 418 IPC.
38. So far as the offence punishable under Sections 416, 417, 418, 419 and 420 are concerned, there must be "cheating" as defined in Section 415 IPC.
"415. Cheating. --Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'."
39. Section 415 IPC has the following ingredients to be satisfied:
(1) deception of any person;
(2) (a) fraudulently or dishonestly inducing that person
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is 28 likely to cause damage or harm to that person in body, mind, reputation or property.
40. In the judgement passed by the Hon'ble Supreme Court reported in (2007) 13 SCC 107 (B. Suresh Yadav Vs. Sharifa Bee and Another), the basic ingredients of offence under Section 415 of Indian Penal Code have been held to be as follows: -
(i) Deception of a person either by making a false or misleading representation or by other action or omission, and
(ii) Fraudulent or dishonest inducement of that person to either deliver any property to any person or to consent to the retention thereof by any person or to intentionally induce that person to do Or, omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or likely to cause damage or harm to that person in body, mind, reputation or property.
41. It has been held in the case of "Mohd. Ibrahim v. State of Bihar" reported in (2009) 8 SCC 751 that the essential ingredients of the offence of "cheating" are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.29
42. Section 418 of the Indian Penal Code reads as under:
"418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect.
- Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
43. The basic ingredients of Section 418 of Indian Penal Code are -
(i) that the accused cheated someone,
(ii) that he was under a legal obligation to protect the interest
of that person,
(iii) that the cheating had relation thereto,
(iv) that he knew that he was likely to cause wrongful loss to
such person.
44. Section 420 of Indian Penal Code is quoted as under:
"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
45. In the judgement passed by the Hon'ble Supreme Court reported in (1996) 6 SCC 32 (Abdul Fazal Siddiqui Vs. Fatehchand Hirawat and Another), it has been held that in absence of any evidence to show that the accused knowingly made any false representation much less dishonestly or 30 fraudulently and a mere representation which is neither claimed or alleged to be dishonest or fraudulent would not attract the charge of cheating only because the complainant parts with the money on the basis thereof.
46. In the judgement passed by the Hon'ble Supreme Court reported in (2000) 3 SCC 269 (Medchl Chemicals & Pharma (P) Ltd. Vs. Biological E. Ltd. and Others), it has been held that while offence under Section 415 IPC is an offence of cheating, Section 418 IPC deals with cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect and Section 420 is cheating and dishonestly inducing delivery of property. In order to attract the provision of Sections 418 and 420 of IPC, the guilty intent, at the time of making the promise, is a requirement and an essential ingredient thereto and subsequent failure to fulfil the promise by itself would not attract the provisions of Section 418 or Section 420 of Indian Penal Code. Mens rea is one of the essential ingredients of offence of cheating under Section 420 of Indian Penal Code.
47. While considering the provisions of Sections 222 and 464 of Code of Criminal Procedure, the Hon'ble Supreme Court in the case of "Dinesh Seth v. State (NCT of Delhi)" reported in (2008) 14 SCC 94 held as under :-
"12. Section 222(1) lays down that when a person is charged with an offence consisting of several particulars and combination of only some of the particulars constituting a minor offence is proved then he can be convicted of the minor offence with which he may not have been charged. Section 222(2) lays down that when a person is charged with an offence but the facts proved constitute a minor offence then he can be convicted of the minor offence despite the fact that he may not have been charged with that offence. Sub- section (3) of Section 222 lays down that a person charged with an 31 offence, can be convicted of an attempt to commit such offence even though a separate charge may not have been framed on that account.
13. Section 464(1) lays down that any error, omission or irregularity in the framing of charge including any misjoinder of charges, will not invalidate a finding, sentence or order by a court of competent jurisdiction unless the higher court comes to a conclusion that failure of justice has been occasioned. Sub-section (2) of Section 464 specifies the modes which can be adopted by the court of appeal, confirmation or revision, if such court is of the opinion that a failure of justice has been occasioned on account of non-framing of charge or any error, omission or irregularity in the framing of charge.
21. The ratio of the above noted judgments is that in certain situations an accused can be convicted for an offence with which he may not have been specifically charged and that an error, omission or irregularity in the framing of charge is, by itself not sufficient for upsetting the conviction. The appellate, confirming or revisional court can interfere in such matters only if it is shown that error, omission or irregularity in the framing of charge has caused prejudice to the accused and failure of justice has been occasioned."
48. This Court finds that apart from the basic element of cheating as defined under Section 415 of IPC, one of the basic ingredients for offence under Section 418 of Indian Penal Code is that the person accused must be under a legal obligation to protect the interest of the person who is alleged to have been cheated. Sub-section 2 of Section 222 of Code of Criminal Procedure contemplates cases where a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it. In cases contemplated by this sub-section 32 2 of Section 222 of Cr.P.C., the graver charge gives to the accused notice of all the circumstances going to constitute the minor one of which he may be convicted. In order to convict the accused for minor offence by taking recourse to Section 222(2) of Code of Criminal Procedure, the minor and the major offences must be cognate offences having the main ingredients as common. If all the particulars of the major offence is proved, then the accused is to be convicted under the main offence and if a combination of only some of those particulars may also constitute an offence, that will be a minor offence as compared to the main offence and an offence will be treated as minor offence within the meaning of Section 222(2) Cr.P.C. with reference to the main or major offence and not independent of it. Thus, in order to convict a person under minor offence, though charged under major offence, the ingredients constituting the offence under the minor offence should be common as that of the ingredients constituting major offence and to convict him, some of the ingredients of the major offence could be absent.
49. In the instant case, this Court finds that one of the major ingredients of offence under Section 418 of Indian Penal Code is that the accused must be under a legal obligation to protect the interest of the person who is alleged to have been cheated, but such ingredient is totally absent in Section 420 of Indian Penal Code. Admittedly, the petitioners in the present case were charged under Section 420 of Indian Penal Code and have been convicted under Section 418 of Indian Penal Code by the learned trial court in exercise of power under section 222(2) of Indian Penal Code by treating Section 418 of Indian Penal Code as a minor offence when compared to Section 420 of Indian Penal Code. The obligation to protect the interest of the depositors in the facts of this case is one of the basic ingredients 33 of Section 418 of Indian Penal Code and not Section 420 of Indian Penal Code.
50. Before the learned trial court, the argument of the defence counsel was that the dishonest inducement and element of cheating was not present in the form of inducement and accordingly, the basic element for commission of an offence under Section 420 of Indian Penal Code was not made out. On the other hand, the argument of the prosecution was that the case has been proved under Section 418 of the Indian Penal Code which was said to be a minor offence of Section 420 of Indian Penal Code. The learned court found that in the present case the petitioners, at the time of offence, were bound to protect the interest of depositors and they also caused wrongful loss to the depositors whose interest in the transaction to which the cheating relates and they were bound either by law or by legal contract to protect their interest. The depositors deposited the money being local person and the accused by their overt act and active participation, convinced and induced the depositors and created faith in their mind that the company is trustworthy and thereby the depositors deposited the money. The learned trial court was of the view that the ingredients of the offence were of a minor offence to Section 420 of the Indian Penal Code and convicted the petitioners under Section 418 of Indian Penal Code treating the offence under Section 418 of IPC as an offence minor to offence under Section 420 of IPC.
51. This Court finds that the ingredient of offence under Section 418 of Indian Penal Code regarding the obligation of the accused either by law or by legal contract to protect the interest of the person concerned is not the ingredient of offence under Section 420 of IPC. Accordingly, offence under Section 418 IPC cannot be said to be a minor offence to offence under section 420 IPC. In order to convict the petitioners under section 418 of 34 IPC the prosecution was required to charge and prove that the petitioners in the capacity of being agents/ managers of the non-banking financial institution involved in the present case, were under any legal obligation, either by law or by contract, to protect the interest of the depositors and evidence , if any, was also required to be brought to the notice of the petitioners and a corresponding opportunity was required to be given to the accused to refute the same. Further, question with regards to such allegations and corresponding evidence was also required to be put to the accused under Section 313 of Cr.P.C. In the present case, neither the petitioners were charged under Section 418 of IPC nor any question with regards to the said essential ingredient of section 418 of IPC was put to them at the stage of recording their statement under Section 313 of Cr.P.C. Accordingly, the petitioners have been highly prejudiced by conviction of the petitioners under Section 418 of IPC no charge having been framed under section 418 IPC. In such circumstances, this Court is of the considered view that the petitioners could not have been convicted under Section 418 IPC by resorting to the 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 the petitioners were not convicted under section 420 IPC.
Accordingly, the conviction and sentence of the petitioners under Section 418 IPC is hereby set-aside by invoking revisional power of this Court.
52. As a cumulative effect of the aforesaid findings, the conviction and sentence of the petitioners under Section 406 and also under section 120 B of Indian Penal Code are upheld.
53. The revision applications are partly allowed to the aforesaid extent.
3554. Interim order, if any, stands vacated.
55. The bail bonds furnished by the petitioners are hereby cancelled.
56. Pending interlocutory application, if any, is dismissed as not pressed.
57. Let the Lower Court Records be immediately sent back to the court concerned.
58. Let a copy of this order be communicated to the learned court below through "FAX/Email".
(Anubha Rawat Choudhary, J.) Pankaj