Delhi District Court
Ram Narain Popli vs . Central Bureau Of Investigation That " ... on 15 March, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Savita Singhal & Ors.
FIR No. 14/2004
P.S Ambedkar Nagar
JUDGMENT
1. Sr. No. of case 2032205/2016
2. Date of institution 20.03.2004
3. Name of the complainant Dr. Suresh Kumar Singh
S/o Sh. R.S. Singh
R/o House No. 4-A, Main Road,
Khanpur, New Delhi.
4. Date of commission of offence In the year 2000
5. Name of accused 1. Savita Singhal
W/o Sh. Pankaj Singhal
2. Pankaj Singhal
S/o Sh. Sh. Bhagwan Chand
FIR No. 14/2004 PS Ambedkar Nagar Page- 1 of 23
Singhal
Both residents of F-52, Khanpur
Extension, New Delhi.
3. Satender Prakash
S/o Late Lakhi Ram
R/o 99 Main Market, Khanpur,
New Delhi.
4. Bhagwan Chand Singhal
S/o Late Satish Chand
Ro Village Bilaspur, District
Gautam Pur Nagar (declared PO
vide order dated 28.05.2004).
6. Offence complained of U/s 406/420/120B/34 IPC
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 14.03.2018
9. Final order Acquitted
10 Date of such judgment 15.03.2018
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that a complaint was received from Dr. S.K. Singh, on the basis of which, FIR was registered. It is stated in the complaint that all the accused persons were involved in finance business and had a registered Chit Fund Company in the FIR No. 14/2004 PS Ambedkar Nagar Page- 2 of 23 name of Shreejee Chits Private Limited and S.J. Chits, Shri G. Finance and Har Shreejee Finance. The accused persons assured the complainant that he would get a good return in case money is invested in the chit fund. He paid Rs. 8,00,000/- on different dates. He also had two chits with the accused persons for Rs. 12,00,000/- for 20 months. He received a sum of Rs. 1,500/- for two chits and thereafter, did not receive any money. The remaining amount was not paid by accused persons despite the expiry of the term. The accused persons were running their office from F-52, Khanpur Extension, New Delhi. They did not return the money despite repeated demands. Even his wife had deposited Rs. 5,00,000/- and Rs. 2,00,000/- in the year 2001 and 2002. The said amount too was not returned. In October, 2003, accused Pankaj Singhal expressed his inability to return the amount and issued a cheque of Rs. 15,00,000/-. The same was returned back dishonoured. Investigation was carried out on the complaint of complainant. Statements of other victims who were similarly duped by accused persons were recorded. Accused persons were arrested. Upon completion of investigation, chargesheet was filed.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused before Court and prima facie case having been made out, charge for the offence of under section 409/34 IPC FIR No. 14/2004 PS Ambedkar Nagar Page- 3 of 23 was framed against accused Pankaj Singhal, Savita Singhal and Satender Prakash. Accused Bhagwan Chand Singhal was declared PO vide order dated 28.05.2004.
3. In order to prove its case, the prosecution examined 23 witnesses in all.
4. SI Vijay Kumar Singh was examined as PW1. He deposed that on 12.01.2004 he was the Duty Officer. FIR Ex.PW1/A was registered. Endorsement on the rukka is Ex.PW1/B.
5. Dr. Suresh Kumar Singh was examined as PW2. He deposed that he filed a complaint Ex.PW2/A. He stated that all the accused persons were involved in finance business and had a registered Chit Fund Company in the name of Shreejee Chits Private Limited and S.J. Chits, Shri G. Finance and Har Shreejee Finance. The accused persons assured the complainant that he would get a good return in case money is invested in the chit fund. He paid Rs. 8,00,000/- on different dates. He also had two chits with the accused persons for Rs. 12,00,000/- for 20 months. He received a sum of Rs. 1,500/- each for two chits and thereafter, did not receive any money. The remaining amount was not paid by accused despite the expiry of the term. The accused persons were running their office from F-52, Khanpur Extension, New Delhi. They did not return the money despite repeated demands. Even his wife had deposited Rs. FIR No. 14/2004 PS Ambedkar Nagar Page- 4 of 23 5,00,000/- and Rs. 2,00,000/- in the year 2001 and 2002. The said amount too was not returned. In October, 2003, accused Pankaj Singhal expressed his inability to return the amount and issued a cheque of Rs. 15,00,000/-. The same was returned back dishonoured. The accused persons issued receipt regarding the deposit of money by him which were seized by the IO vide seizure memo Ex.PW2/B.
6. W/SI Bala Mohan was examined as PW3. She deposed that on 21.01.2004 she joined investigation with the IO. Accused Savita Singhal was arrested vide memo Ex.PW3/A and her personal search was conducted vide memo Ex.PW3/B. Her disclosure statement was recorded which is Ex.PW3/C.
7. Sh. Anil Bansal was examined as PW4. He deposed on same lines as PW1. He further stated that accused Pankaj Snighal approached him and told that in case he deposited Rs. 2,50,000/- he would get a return of Rs. 4,00,000/- after two years. He further informed him that he used to lend money to big businessmen and industrialists. The amount was given to accused in cash. The accused persons handed over a receipt which was signed by accused Pankaj Singhal. The accused persons did not return back the money but gave a cheque. The cheque was dishonoured. He joined investigation with the IO. Accused Savita Singhal was arrested and her disclosure statement Ex.PW3/C was recorded. Disclosure statement of accused FIR No. 14/2004 PS Ambedkar Nagar Page- 5 of 23 Pankaj Singhal was recorded vide memo Ex.PW4/A. His supplementary disclosure statement vide memo Ex.PW4/B was also recorded. 92 files were recovered from the office of accused Pankaj Singhal vide memo Ex.PW4/C. Memorandum of Articles of Association was taken into possession vide memo Ex.PW4/D. Six seals were taken into possession vide memo Ex.PW4/E. Articles of Association is Ex.PW2/DA, Ex.PW2/DE, Ex.PW2/DC, Ex.PW4/F.
8. Sh. Ravinder Kumar was examined as PW5. He deposed that he had sold his TATA Tempo for Rs. 2,30,000/- and deposited amount with Pankaj Singhal. He was to be given Rs. 3,00,000/- by them. They handed over a cheque of Rs. 3,00,000/- as security. Money was not given back by accused. Wife of accused Pankaj Singhal was with him in the company.
9. Sh. Joginder Kumar was examined as PW6. He deposed that in the year 2001 he gave Rs. 3,00,000/- to Pankaj Singhal. The money was not returned and he handed over a cheque. The cheque was dishonoured on presentation.
10. Inspector Anil Kumar was examined as PW7. He deposed that on 12.01.2004 he received a complaint from Dr. S.K. Singh. Endorsement on the complaint was made vide memo Ex.PW7/A. FIR was got registered. Statement of public witnesses were recorded. Accused Savita Singhal was arrested on 21.01.2004. Accused Pankaj FIR No. 14/2004 PS Ambedkar Nagar Page- 6 of 23 Singh was arrested on 23.01.2004 vide memo Ex.PW7/B, personal search was conducted vide memo Ex.PW7/C. On 25.01.2004, 92 finance files were seized. The same are Ex.PW7/E1 to Ex.PW7/E92. On 28.01.2004 he seized two finance files vide memo Ex.PW7/F. The files were identified as Ex.PW7/F1 to Ex.PW7/F2. He identified specimen signatures of accused Pankaj Singhal on 10 sheets which are Ex.PW7/G1 to Ex.PW7/G10.
11. Sh. Amolak Singh was examined as PW8. He deposed that he deposited Rs. 1,90,000/-, Rs. 50,000/- in his name, Rs. 50,000/- in the name of his wife, Rs. 50,000/- in the name of his son and Rs. 40,000/- in the name of his daughter. Four receipts Ex.PW8/A were issued by accused. He also deposited Rs. 28,000/-. The receipts are Ex.PW8/B. He did not receive back his money.
12. Sh. Kailash Chand was examined as PW9. He deposed that in the year 2002 he was induced by the accused persons to invest money in the chit fund. They used to invest money taken from investors in big companies which yielded good interest. The interest was shared between the investors. They also told him that they were in the business of real estate and would give plot of land in return of investment. Initially he paid Rs. 2,000 per month for a period of 20 months. The money was returned. He then started depositing Rs. 7,000/- per month. In the month of January, 2003 he came to know FIR No. 14/2004 PS Ambedkar Nagar Page- 7 of 23 that business of accused was running into losses. In the year 2004, they declared themselves insolvent. Accused Satender Chaudhary returned Rs. 50,000/-. The total money invested by him is more than Rs. 1,00,000/-. The original receipt issued by accused Pankaj Singhal are Ex.PW9/A1 to Ex.PW9/A6.
13. Sh. Jasbir Singh was examined as PW10. He produced the statement of account which is Ex.PW10/A. The previous statement of bank account is Ex.PW10/B. The letter written by Punjab and Sindh Bank is Ex.PW10/C.
14. Sh. Bhagwan Singh was examined as PW11. He deposed that he was a member of Two Chits of accused Pankaj Singhal and Satender. He paid a sum of Rs. 1,50,000/- for which receipts Ex.PW11/A were issued. The accused persons did not return his money and ran away.
15. Sh. Raj Kumar was examined as PW12. He deposed that he and his mother deposited Rs. 5,00,000/- with accused. The accused persons refused to return back his money. The receipts issued by accused in his name is Ex.P1 and one issued in the name of his mother are Ex.P2 and Ex.P3.
16. Sh. Suresh Chand was examined as PW13. He handed over three receipts Ex.P1, Ex.P2 and Ex.P3 to IO.
17. Sh. Kailash Sharma was examined as PW14. He deposed that on FIR No. 14/2004 PS Ambedkar Nagar Page- 8 of 23 02.01.2003 he deposited Rs. 2,00,000/- with the accused company. When he went to take his money back, the accused persons ran away.
18. Sh. Tek Chand was examined as PW15. He had taken a chit fund scheme of Rs. 1,00,000/-. He used to deposit Rs. 3,500/- to Rs. 3,600/- per month. On every deposit, he was given a receipt. In 2004 he came to know that the accused persons had closed their office. His money had not been returned. He handed over original receipts Ex.PW15/A to IO.
19. Sh. Shri Ram, Staff Officer, Bank of India was examined as PW16. He produced certified copy of bank account of accused Savita Singha. The same is Ex.PW16/A.
20. Inspector Jagdish Yadav was examined as PW17. He deposed that on 21.02.2004 he carried out further investigation of the case. He collected records of accused Pankaj Singhal from bank. The bank details of accused Pankaj Singhal and Savita Singhal are Ex.PW17/A. He contacted various investors with the accused persons. 14 receipts were seized vide memo Ex.PW17/B. On 14.07.2004 he received 17 receipts and the same were seized vide memo Ex.PW17/C. He also received 17 more receipts Ex.PW18/A. On 24.04.2004, he seized 5 receipts vide memo Ex.PW17/D. 7 receipts vide memo Ex.PW17/E, 11 receipts vide FIR No. 14/2004 PS Ambedkar Nagar Page- 9 of 23 memo Ex.PW7/F, 9 receipts vide memo Ex.PW15/A, 16 receipts vide memo Ex.PW17/G. On 22.04.2004, he seized 5 receipts vide memo Ex.PW17/H, 19 receipts vide memo Ex.PW17/I. Statement of witnesses were recorded under section 161 Cr.PC. Certified copies of annual returns of accused company were taken vide memo Ex.PW17/J. Specimen handwriting and signatures of accused persons were sent to FSL. He also conducted proceedings under section 82/83 Cr.PC against accused Bhagwan Aggarwal.
21. Sh. Sukhbir Singh was examined as PW18. He stated that he has no grievance against the accused persons as his money has been returned.
22. Sh. Tilak Raj, Senior Branch Manager, Syndicate Bank was examined as PW19. The bank statement of account of accused starting from 01.04.2002 to 30.06.2003 was provided vide memo Ex.PW19/A. The statement of account from 18.11.2006 to 23.10.2013 is Ex.PW19/B. Certificate under section 65B of Indian Evidence Act is Ex.PW19/C.
23. Sh. Shri Ram was examined as PW20. He deposed that the account statement of accused Savita Singhal is Ex.PW20/A.
24. Sh. S.C. Mehra was examined as PW21. He produced the FIR No. 14/2004 PS Ambedkar Nagar Page- 10 of 23 attested copy of account opening form, ration card and PAN Card of account holder. Computer generated copy is Ex.PW21/A and other documents are Ex.PW21/B.
25. Sh.Praveen Gupta was examined as PW22. He did not support the story of the prosecution.
26. Sh. Gabbar Singh was examined as PW23. He deposed that in 2003 he invested Rs. 4,00,000/- with the accused company and a cheque of Rs. 4,00,000/- was issued by the accused persons at the time of deposit of said amount. The cheque was dishonoured. The accused persons did not return the said money. Photocopy of receipt and cheque are Ex.PW23/A and Ex.PW23/B.
27. Sh. Swami Gopal Krishna was examined as PW24. He deposed that he gave a total sum of Rs. 3,00,000/- and Rs. 2,00,000/- in the chit fund to the accused. Upon cross examination, he stated that he gave Rs. 75,000/- to the accused. He was given a receipt.
28. The entire incriminating evidence brought on record against the accused were put to him and his statement under section 313 Cr.PC was recorded separately. It is stated by accused Satender Prakash that he has been falsely implicated. He has resigned from Shreejee Chit Fund prior to the registration of FIR. He had not induced any person to invest money in the company. He was never involved in FIR No. 14/2004 PS Ambedkar Nagar Page- 11 of 23 the day-to-day affairs of the company.
29. It is stated that accused Pankaj Singhal and Savita Singhal that they have been falsely implicated in the present case.
30. I have heard Ld. APP for the State and Ld. counsel for the accused persons and have also perused the judicial file carefully.
31. Accused persons have been charged with the offence under section 409/34 IPC.
32. Before proceeding further, it would be pertinent to understand the provisions as laid down under section 409 IPC.
Section 409 IPC prescribes punishment for criminal breach of trust by public servant, banker etc as defined in Section 405 IPC. For the offence punishable under section 409 iPC, the following conditions are required to be fulfilled:-
(i) that the accused was entrusted with property or with dominion over it and
(ii) that he (a) misappropriated it, or (b) converted it to his own use, or (c) used it, or (d) disposed of it.
The gist of the offence is misappropriation done in a dishonest manner. There are two distinct parts of the said offence. The first involves the fact of entrustment, where in an obligation arises in relation to the property over which dominion or control is acquired. The second FIR No. 14/2004 PS Ambedkar Nagar Page- 12 of 23 part deals with misappropriation which should be contrary to the terms of the obligation which is created. Thus, once it is proved that the beneficial interest in the property was vested in some other person other than the accused and the accused has held that property on behalf of that person, appropriation of that beneficial interest in the property by the accused for his own use amounts to 'criminal breach of trust'.
33. In order to bring home the offence of under section 409 IPC, it is required to prove that the money was entrusted to the accused persons who misappropriated the same.
34. Counsel for the accused has placed reliance on judgment titled as Ram Narain Popli Vs. Central Bureau of Investigation that " To constitute an offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one's own use, or use in violation of a legal direction or of any legal contract; and the misappropriation or conversion or disposal must be with a dishonest intention. When a person allows others to misappropriate the money entrusted to him that amounts to a criminal appropriation of trust as defined by Section 405. The section relatable to property in a positive part and a negative part. The positive part deals with criminal misappropriation or conversion of the property and the negative part consists of FIR No. 14/2004 PS Ambedkar Nagar Page- 13 of 23 dishonestly using or disposing of the property in violation of any direction and of law or any contract touching the discharge of trust. Further, in judgment titled Gopesh Chanderpal & Ors. Vs. Nirmal Kumar Dass, Rev. No. 540/1949, decided on 12.08.1949 it has been held that "Section 409 and 405:- Entrustment- Deposit in bank-There is no question of entrustment. Relationship between bank and customer is that of creditor and debtor. I shall now consider whether the learned Magistrate was right in refusing to discharge the petitioner. The learned Magistrate says that the statement in paras 8 and 9 in the petition of complaint are almost conclusive for the purpose of making out a case prima facie under section 409 IPC read with 120B IPC. I have dealt with the matter in the earlier part of my judgment and I have held that section 409 IPC has no manner of application to the facts of this case. The learned Magistrate goes on to say further that it is premature to order a discharge without hearing the evidence in the case. In my opinion, the learned Magistrate is wrong in this view. If there was a case for acting under 263 (2) Cr.PC and for discharging the accused at the earliest stage of the proceeding before evidence is taken this case is one of them. It should be remembered that when a person opens a current account in a bank, there is no question of entrustment. The relationship between the bank and the customer is one of creditor and debtor. The bank is free to use the money deposited by the FIR No. 14/2004 PS Ambedkar Nagar Page- 14 of 23 customer or constituent in any way it likes and is not bound to keep the money apart. No bank can ever function if it was obligatory on it not to touch the money of a person who makes a deposit in its current account. The bank is liable to pay the money to the customer when called upon but until called upon to pay it the bank is entitled to utilize the money in investment and to other ways for earning profit therefrom. On this ground also it is quite clear that there can be no case against the bank or any of its officer for committing an offence under 409 IPC Section 409 IPC presupposes entrustment. When a person opens a current account in a bank, there is no question of entrustment. The . The relationship between the bank and the customer is one of creditor and debtor. Hence, there can be no case against a bank or its officers for committing the offence under section 409 IPC in respect of the money deposited by a outsider. It has been held in judgment titled as Nadir Ali Barqa Zaidi And Ors. vs The State Of U.P. on 29 July, 1959 that " But their conviction under Sction 409 I.P.C is seriously open to question. Under this section a "banker" being in any manner "entrusted" with property commits an offence if he dishonestly misappropriates or converts to his own use that property. The word "banker", it may be pointed out has not been used in this section in the technical sense of the Indian Banking Companies Act, but signifies any person who discharges any of the functions of the customary business of FIR No. 14/2004 PS Ambedkar Nagar Page- 15 of 23 banking, and would therefore include a firm, like Bharat Helpers. Now, in the customary business of banking there are instances where the banker is entrusted with properly and acts as its trustee. Well- known examples of this are: a person delivers his jewellery to the banker for safe custody; a person delivers his share-scrips to the banker for sale when the market becomes favourable; a person takes a loan from the banker and pledges his goods with him as security. In such cases if the banker commits dishonest conversion of the jewellery or the scrips or the goods he becomes, liable under Section
409. But a banker in the course of his customary business also accepts deposits of money and is only bound to repay it to the depositor on demand or after a given period depending on the terms of the contract governing the deposit. In such, a case, the question arises as to whether the banker can be said to have been "entrusted" with the deposit money. The answer depends on the true nature of the relationship between the banker and the depositor. The Privy Council in Attorney-General of Canada v. Attorney-General of the Province of Quebec. AIR 1947 PC 44, following the House of Lords, have described the relationship as follows:-- ''The relation between a banker and the customer who pays money into the bank is the ordinary relation of a debtor and creditor with a super-added obligation arising out of the custom of bankers to honour the customer's drafts ....Once the deposit is made there remains only a FIR No. 14/2004 PS Ambedkar Nagar Page- 16 of 23 debt due from the banker to the customer. ....Money deposited with a bank is also not trust money which the trustee must preserve and not use; on the contrary it is lent for use and the bank is not a trustee but a debtor to the depositor." In the instant case the deposits which the depositors made with the appellants was in the capacity of the latter as bankers. It follows that the appellants cannot be deemed to have been "entrused" with the money of the depositors; instead they remained merely their debtors. Since entrustment is the essence of an offence under Section 409 they cannot be said to have committed criminal breach of trust by dishonestly misappropriating or converting to their own use the deposited amounts. Another consideration would go to show that in the present case there was no entrustment of the depositors' money. This stems from the fact that it was obtained by cheating. In Emperor V. John Mciver, AIR 1936 Mad 353, a Full Bench case, it was held by a majority that there is no entrustment within the meaning of Section 405 when property is obtained by cheating. Further, Sardar Singh vs State Of Haryana on 1 November, 1976 that "Section 409 can be invoked only if it can be shown that the accused being in any manner entrusted with property or with dominion over property in his capacity as public servant committed criminal breach of trust in respect of that property. The offence of criminal breach is defined in Section 405 and an essential ingredient of this offence is that the accused being FIR No. 14/2004 PS Ambedkar Nagar Page- 17 of 23 in any manner entrusted with property or with dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust. Here as we have already pointed out, the appellant was admittedly entrusted with the receipt-book or in any event with dominion over it, but there is no evidence to establish that he dishonestly misappropriated the receipt book or converted it to his own use or dishonestly used or disposed of the receipt book. It is quite possible that the appellant might have lost or mislaid the receipt book and hence he might have been unable to return it to the superior authorities. What the section requires is something much more than mere failure or omission to return the receipt book. The prosecution has to go further and show that the appellant dishonestly misappropriated or converted the receipt book to his own use or dishonestly used or disposed of it. That, we are afraid, the prosecution has not been able to do in the present case. We are, therefore, of the view that the appellant was wrongly convicted under Section 409"
35. From the case law discussed above, it can be discerned that the first and foremost requirement of section 409 IPC is 'entrustment of FIR No. 14/2004 PS Ambedkar Nagar Page- 18 of 23 property to the accused by the complainant'. In the present case, accused persons have been charged with the offence under section 409/34 IPC for acting in furtherance of their common intention inducing the complainant and his wife to invest some money alongwith other investors. Meaning thereby that the money was not entrusted to them rather the same was received by the accused persons on inducement. There can be no entrustment by inducement. The entrustment necessarily has to be voluntary.
36. As per the law laid herein above the prime requirement of section 409 IPC is that the accused should be entrusted in property or dominion over it.
37. In the instant case, prosecution has examined complainant Dr. Suresh Kumar Singh as PW2 who has deposed in his testimony that "These people were involved in finance business and they told me that they have a registered Chit Fund Company Shreejee Pvt. Ltd and S.J. Chit, Shreejee Finance and Har Shree Finance. They assured me that if I would invest in the chit fund, I would get return good money so I invested."
38. Similarly, it is deposed by PW4 Sh. Anil Bansal that "He was informed by the accused that in case he deposited Rs. 2,50,000/- he may get return of Rs. 4,00,000/-. He was informed by accused Pankaj that he further lends the money on interest to big FIR No. 14/2004 PS Ambedkar Nagar Page- 19 of 23 businessmen and industrialists."
39. PW5 and PW8 have also stated that they had deposited particular sum with the accused persons but did not receive their money back.
40. Here in the instant case not only the complainant but the other victims have categorically stated that they have invested the money for return. Investment is distinguished from entrustment in the case of Gopesh Chanderpal (supra) wherein it has been held that "the relationship between the bank and the customer is that of creditor and debtor."
41. It is an admitted case that accused persons were dealing in finance business and had registered finance company which is evident from the testimony of PW2. It has also come on record that they were assured of returns on the basis of profit earned from lending money to big businessmen and industrialist as stated by PW4 Sh. Anil Bansal.
42. It is established on record by the testimony of prosecution witnesses that the money was invested by the complainant and other victims with an assurance of return on the basis of profit earned by accused. The witnesses have stated that they were told by accused persons that they may get particular return as stated by PW4 Sh. Anil Bansal "I may get return of Rs. 4,00,000/- after two years" on FIR No. 14/2004 PS Ambedkar Nagar Page- 20 of 23 deposit of Rs. 2,50,000/-."
43. In the cross examination, it is admitted by PW2 Sh. S.K. Singh that "it is correct to my knowledge and information from the accused that the funds invested with these companies was being invested further to the persons who were looking for loans. It is also correct that these companies were advancing loan on interest. It is correct that the company had made disbursement by way of loan to various borrowers and once those persons had defaulted, our investment could not be refunded and in some of these cases. The company has also filed recovery proceedings to recover these amounts."
44. From the abovesaid admission, it has come on record that the money invested by complainant were further invested and due to non-return of loan amount by the people, money of the investors was not returned.
45. The other ingredients of section 409 IPC is dishonest misappropriation. The same reads as under:-
Misappropriation:- Dishonest misappropriation the essence of this section. Dishonesty is as defined in section 24 IPC, causing wrongful gain or wrongful loss to a person. The meaning of wrongful gain and wrongful loss is defined in section 23 IPC. In order to constitute an offence, it is not enough to establish that the money has FIR No. 14/2004 PS Ambedkar Nagar Page- 21 of 23 not been accounted for or mismanaged. It has to be established that the accused has dishonestly put the property to his own use or to some unauthorized use. Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust.
46. Since it is admitted by prosecution witnesses that the money was not returned to them for the reason of non return of money by people who were advanced loans by accused persons. Not a single witness has stated that the money has reached the accounts of any of the accused persons or the same has been dishonestly misappropriated by them. It is admitted by IO that he did not seize any document in respect of statement of accounts of any of the companies of accused. It is admitted by IO further that he cannot say whether any money was transferred from the account of the companies into the personal account of the accused persons. There is absolutely no oral and documentary evidence to prove that the money was dishonestly misappropriated by the accused persons.
47. Though the accused persons have been charged under section 409 IPC but the charge talks about inducement and not entrustment of money to the accused persons by the complainant which is the essence of section 409 IPC.
48. The prosecution has miserably failed to prove that either the FIR No. 14/2004 PS Ambedkar Nagar Page- 22 of 23 money was entrusted to the accused persons or the same was dishonestly misappropriated.
49. In view of the above discussion, the prosecution has miserably failed to prove the guilt of the accused persons, the benefit of which accrues in their favour. They are accordingly acquitted for the offence under section 409/34 IPC.
Announced in the open
Court on 15.03.2018 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 23 pages and each page is signed by me.
(POOJA TALWAR) CMM (South), Saket Courts, New Delhi FIR No. 14/2004 PS Ambedkar Nagar Page- 23 of 23