Jharkhand High Court
Nemchand Bhagat Son Of Late Basudeo ... vs The State Of Jharkhand ... ... ... Opp. ... on 4 October, 2021
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 959 of 2008
1. Nemchand Bhagat son of Late Basudeo Bhagat
2. Ganesh Sahu @ Ganesh Kumar Sahu son of Shri Ram Mohan
Sahu
3. Bahura Sahu son of Late Bikhu Sao
(Deleted vide order dated 11.12.2019)
All are residents of village- Sithio, P.S.- Sanha,
District- Lohardaga ... ... ... Petitioners
-Versus-
The State of Jharkhand ... ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Manish Kumar, Advocate
For the Opp. Party : Mrs. Niki Sinha, A.P.P.
Through Video Conferencing
C.A.V On 14.07.2021 Pronounced on 04.10.2021
1. Heard Mr. Manish Kumar, learned counsel appearing on behalf of the petitioners.
2. Heard Mrs. Niki Sinha, learned counsel appearing on behalf of the opposite party-State.
3. The learned trial court, vide Judgment dated 09.04.2008 passed by the learned Judicial Magistrate, 1st Class, Lohardaga in General Register No. 167/1987 and Trial Register No. 300/2008 (arising out of Lohardaga P.S. Case No. 61/1987), had convicted the petitioners under Sections 406, 420, 120(B) read with Section 34 of the Indian Penal Code and had sentenced them to undergo Simple Imprisonment for three years for the offence under Section 406 of IPC; Simple Imprisonment for three years and fine of Rs. 3,000/- for the offence under Section 420 of IPC and in default of payment of fine, to undergo Simple Imprisonment for three months and Simple Imprisonment for two years for the offence under Section 120(B) of IPC and all the sentenced were directed to 2 run concurrently.
4. The petitioners preferred Criminal Appeal No. 09/2008 and Criminal Appeal No.10/2008 respectively against the Judgment of the learned trial court and the learned Sessions Judge, Lohardaga, vide Judgment dated 08.09.2008, dismissed the criminal appeals and upheld the conviction of the petitioners under Sections 406 and 420 read with section 34 of the Indian Penal Code, but modified the sentences to Simple Imprisonment for two years for the offence under Section 406 of the Indian Penal Code and Simple Imprisonment for two years and fine of Rs. 3,000/- for the offence under Section 420 of the Indian Penal Code and both the sentences were directed to run concurrently. However, the learned appellate court set aside the conviction of the petitioners under Section 120(B) of the Indian Penal Code.
Arguments of the petitioners
5. Learned counsel for the petitioners submitted that Bahura Sahu, the Petitioner No. 3 has expired and his name has been deleted from the cause title of the criminal revision by virtue of the order dated 11.12.2019 passed by this Court. Accordingly, the present criminal revision application survives only so far as Petitioner Nos. 1 and 2 are concerned.
6. Learned counsel for the petitioners submitted that the Petitioner Nos. 1 and 2 have been made accused and have been convicted by alleging that they were the partners of the firm namely, Kisan Sewa Kendra. He further submitted that there is no evidence against the petitioners, but the learned trial court convicted the petitioners on the basis of Exhibit-4 in which one Satya Prakash Verma (co-accused) had written a letter mentioning the names of three petitioners as his partners in the firm namely, Kisan Sewa. The main accused namely, Satya Prakash Verma absconded and he did not face the trial.
3Learned counsel submitted that there is no material evidence on record showing the complicity of the present Petitioner Nos. 1 and 2 and accordingly, the conviction of these two petitioners calls for interference under revisional jurisdiction.
7. The learned counsel for the petitioners submitted that a stand was taken by the learned P.P. before the learned court below that these petitioners could be the sleeping partners of the partnership firm. In this context, the learned counsel referred to the judgment passed by the Hon'ble Supreme Court reported in (1989) 4 SCC 630 [Sham Sunder and Others -vs- State of Haryana], Para- 8 and 9 to submit that even if it is assumed that the petitioners were the sleeping partners, no criminal liability can be fastened upon the petitioners. He also referred to the judgment passed by the Hon'ble Supreme Court in Cr. Appeal No. 923/2008 decided on 06.05.2008 in the case of Latu Mahto vs. State of Bihar reported in (2008) 8 SCC 395 to submit that importance of the questions put to the accused during examination under Section 313 of Cr.P.C. has been considered by the Hon'ble Supreme Court. The learned counsel submitted that no question was put to the petitioners as to whether the petitioners were partners of the partnership firm to whom the informant had supplied the seeds. The learned counsel submitted that the conviction of the petitioners cannot be sustained in the eyes of law.
Arguments of the Opposite Party-State
8. Learned counsel for the State advanced her arguments and referred to Paragraph-19 of the appellate court's judgment to submit that there are sufficient materials on record to indicate the involvement of the present petitioners. She also submitted that in view of Exhibit-4, wherein the names of the petitioners are shown as partners, though it is a letter issued by the co- accused, it cannot be said that conviction of the petitioners is 4 based on no evidence. She submitted that the impugned judgments do not call for any interference in revisional jurisdiction.
Findings of this court
9. The prosecution case, in brief, is that Bihar Rajya Beej Nigam (hereinafter referred to as the Corporation) is a Public Sector undertaking and one of its functions was to distribute seeds to the farmers through its agents, dealers and employees. M/s. Kisan Sewa, College Road, Lohardaga was a partnership firm and Shree Ganesh Sahu, Shree Satya Prakash Verma and Shree Bahura Sao were its partners. M/s. Kisan Sewa made an application through its partners in the year 1985-86 for appointment as a dealer and the firm was duly appointed as a dealer by the Corporation for distribution of seeds in Lohardaga district. In the year 1985-86, the Nigam supplied seeds valued at Rs.5,28,751/- only, the details of which were given in the written report (Exhibit-9). After deducting government subsidy, commission and transportation cost, the net cost chargeable was Rs.4,47,690=50 only. The seeds were supplied to them to sell it on behalf of the Corporation. The total sale value of the seeds supplied to them comes to Rs.4,47,690=50 only. M/s. Kisan Sewa through its partners were required to deposit the above amount as sale proceed in the office of Nigam and then they were entitled to receive their commission. They deposited Rs.1,90,996=75 only through bank draft, cash and counter signed bills and net dues amounted to Rs. 2,56,693=75 only against them. It was found that they sold away the entire stock of seeds given to them. Several reminders were sent to them to deposit the amount of Rs.2,56,693=75 only of the Nigam, but they did not deposit the same and they put off the officer of the Nigam who had gone to collect the money and they committed criminal breach of 5 trust in respect of the amount.
10. On the basis of this written report, an F.I.R. was registered as Lohardaga P.S. Case No. 61/1987 under Section 406 of the Indian Penal Code. The police investigated the case and submitted charge-sheet and accordingly, cognizance was taken for offences under Sections 406, 420 and 120B/34 of the Indian Penal Code against four persons namely, Satya Prakash Verma, Bahura Sao, Nemchand Bhagat (Petitioner No.1 herein) and Ganesh Sahu (Petitioner No.2 herein) vide order dated 12.11.1987. Out of them, accused Satya Prakash Verma did not appear before the learned court below and he was declared absconder vide order dated 08.05.1997. Thereafter, charges were framed under the aforesaid sections and substance of the accusation was explained to the accused persons to which, they pleaded not guilty and claimed to be tried. Later on, charges were amended and framed under Sections 409, 420 and 120B/34 of the Indian Penal Code vide order dated 17.07.2001, but the witnesses did not appear for further examination. After closure of prosecution evidence, the statements of the accused persons were recorded under Section 313 of Cr.P.C. wherein they denied the allegations levelled against them and claimed to be innocent. As further examination was not done as per the amended charges, the learned court below considered the case in the light of the charges framed previously and not under Section 409 of IPC.
11. In course of trial, altogether eight witnesses were examined on behalf of the prosecution. P.W.-1 is Bannu Mahto, P.W.-2 is Chamar Ram, P.W.-3 is Raj Kishore Prasad, P.W.-4 is Ranjeet Oraon, P.W.-5 is Prabhat Kumar Sinha, P.W.-6 is Shiv Shankar Prasad who is the informant of the case, P.W.-7 is Albel Kujur and P.W.-8 is Prakash Kumar Singh. A large number of documentary evidences were also produced from the side of 6 the prosecution. Neither any defence evidence was led by the petitioners nor any document was exhibited in defence.
12. P.W.-2 deposed that M/s. Kisan Sewa used to sell seeds at Lohardaga, but he could not say about the persons who used to sell the seeds. He identified the accused persons. In his cross-examination, he stated that he could not say about the work of M/s Kisan Sewa.
13. P.W.-5 is Prabhat Kumar Sinha who was working as an Assistant with "Beej Nigam". In his evidence, he stated that on 26.06.1987, he was posted at Regional Office, Ranchi and by a letter, he was asked to submit a report giving details as to when he had visited Lohardaga for realizing/collecting the money (dues). He gave his reply to the said letter on 22.07.1987 and he proved it which was marked as Ext.-1. In his cross- examination, he stated that he had visited Lohardaga for realizing money in course of his official duty and he had maintained the record. He had also shown it to the police.
14. P.W.-6 deposed that on 26.06.87, he was Assistant Seed Officer, posted at Ranchi. He has also supported the prosecution case. He has proved the notification of appointment of dealers issued by the Corporation which has been marked as Exhibit-2 and has proved the letter of appointment in favour of service agents which has been marked as Exhibit-3. He has deposed that an application was received in his office from Kisan Sewa, Lohardaga for appointment as service agent and his application has been marked as Exhibit-4. He proved the signature of Satya Prakash on the application seeking appointment as service agent and in this document, it was mentioned that in the partnership firm Ganesh Prasad Sahu, Nem Chand Bhagat and Bahura Sahu were partners and security deposit of Rs. 5,000/- was made by Satya Prakash for appointment as service agent. He also proved the office order 7 by which Kisan Sewa was appointed as a service agent and after its appointment, the seeds were supplied. In the year, 1985, seeds valued at Rs. 5,88,751/- was supplied and inventory of the type of seed in the year 1985-86 was prepared and was marked as Exhibit-6. After deduction of commission, the amount payable which became payable was Rs. 4,47,690 out of which Rs. 3570.75 was deposited and the details of the amount received from M/s Kisan Sewa, Lohardaga who was a service agent has been marked as Exhibit-7. The other amount that was received by counter signed bills amounting to Rs. 1,55,295/- in total 1,90,996.75 was paid and rest amount of Rs. 2,56,693.75 remained balance to be paid by M/s Kisan Sewa. Further, in spite of repeated reminders M/s Kisan Sewa failed to pay the balance amount. Consequently, written report was submitted to the Lohardaga Police Station which was marked as Exhibit-8. He has also deposed in connection with the recovery of the balance amount, he had gone there and he knew about Satya Prakash and signature of other partners were available on the transaction. He has also deposed that apart from Satya Prakash, the case was registered against other accused persons also on the basis of partnership deed, although, admittedly the partnership deed was not exhibited. He had also deposed that he had gone through the partnership paper which was in one single sheet. He had also deposed that the seeds were delivered by the corporation under the receipt from Ganesh Sahu, Bahura Sahu and Satya Prakash Verma. He has further deposed that in the recovery of dues, P.W. 7, Albel Kujur and P.W. 8 Prakash Kumar Singh were sent.
15. So far as P.W. 7 is concerned, he has deposed that in the month of October, 1988, he was posted as marketing clerk cum account assistant in the corporation at Ranchi in the year 1985- 86, the partners of M/s Kisan Sewa, Satya Prakash Verma, 8 Ganesh Prasad Sahu, Bahura Sahu, Nemchand Bhagat were supplied with seeds from 30.05.1985 to 2.7.1985. In support of the said transaction, he has exhibited a number of documents which were marked as Exhibit-9 to Exhibit-9/15. He has further deposed that an amount of 2,56,696.75 remained balance amount to be realized and in spite of demand, the amount was not paid.
16. So far as P.W-8 is concerned he has also fully supported the prosecution case and has been fully cross-examined by the defence. P.W.-8 was a field officer of the corporation posted at Ranchi branch during the period in question who had deposed that he identifies the partners Satya Prakash Verma, Ganesh Prasad Sahu, Bahura Sahu and Nemchand Bhagat of Kisan Sewa Kendra Lohardaga and had seen the partnership deed of the firm. He has deposed that he visited Sewa Kendra for collection of dues of the firm. He has also exhibited Exhibit-8 which reflects the dates on which different staffs/officers of the corporation visited Kisan Sewa Kendra in connection with realization of the balance amount and on 09.3.1986, P.W. 8 met Satya Prakash Verma and Ganesh Sahu and during his last visit it transpired that M/s Kisan Sewa, Lohardaga was closed because of differences amongst its partners and exhibit-11/25 was the receipt in the signature of Bahura Sahu.
17. The learned trial court considered the evidences on record and convicted and sentenced the petitioners as mentioned above by a detailed judgement. Paragraph 16 of the trial court's judgement is quoted as under: -
Para-16 "Arguments were heard. The learned APP appearing for the State argued that all the witnesses have supported the case of prosecution. The entrustment have been proved and from the attending circumstances it is clear that there was conspiracy to commit criminal breach of trust and cheating since the very mode of payment of little amount in comparison to dues indicates to this fact. Thus, the prosecution has been able to prove the offences beyond all reasonable doubt. Hence, the argument that accused be convicted. The first argument put forward by defence is that there is no deed of 9 partnership. In the application by M/s Kisan Seva dated 31.05.85 there is only the name of so called four partners but there is no one signature as applicant. The Beej Nigam has received a draft issued from the United Bank of India, Lohardaga branch on 31.05.85. The Beej Nigam has appointed M/s Kisan Seva as service agent/authorized dealer with immediate effect on 31.05.85. There is no one signature on the appointment letter issued by the Beej Nigam to M/s Kisan Seva as an appointing authority. There is no specific name of the place from where seeds were supplied to M/s Kisan Seva. All the officials coming to Lohardaga for recovery of dues amount from M/s Kisan Sewa have submitted their reports naming only Satya Prakash Verma as proprietor of M/s Kisan Sewa. The learned APP concentrated all these points. The learned APP argued that indeed there is no deed of partnership on record but the remaining partners may be sleeping partners. He drew attention toward the deposition of PW-8 in para-2 wherein he has deposed that he has seen the deed of partnership. The learned defence prosecution counsel led to through Exhibit-10/14 relating to materials transfer note which shows accused Bahura Sao received seeds on behalf of Kisan Seva and this exhibits bears the signature of Bahura Sao. The learned defence counsel has got no answer to this. This exhibits series of Exhibits-11 shows that all the materials were received by M/s Kisan Seva Kendra, Lohardaga as partnership firm. The exhibit-11/25 a receipt showing receipt by Bahura Sao goes to show that he was involved with workings of M/s Kisan Sewa. Even disconnecting for Ext -11/25, it makes ample clear that accused persons were involved in the working of M/s Kisan Sewa notwithstanding lack of deed of partnership firm. P.W.-1 has stated that he has seen Bahura Sao, Ganesh Sao at the shop M/s Kisan Sewa.
Another argument put forward by defence is that there was no advertisement that he dealt only with Satya Prakash Verma. P.W.6 does not know nothing about seeds supplied and the department did nothing for the recovery of dues amount. It was argued that no mode was prescribed for the payment. He does not know anything about the sales Agent. The learned APP countered all these points and said these are only minor contradictions and in course of argument took through Exhibit-1 to series of Exhibit-11. The Exhibit 1 talks about visit by officers of Beej Nigam to collect money. The Exhibits-2 speak about inter office memo. The Exhibit 3 speaks about officer order. The Exhibit-4 speaks about an application filed by M/s Kisan Sewa signed by Satya Prakash Verma and Ext.-5 showing appointment of M/s Kisan Sewa Kendra as service agent/dealers. The learned defence counsel has wrongly pointed out that it does not bear the signature of appointing authority on the back side of Ext.-5. The whole of Exhibit-5 is fully exhibited and it bears the signature of appointing authority Yamuna Prasad. Despite by the court, it failed to secure the attendance of appointing authority Yamuna Prasad. The Exhibit-6 shows amount of the seed supplied. The Exhibit-7 shows about the payment by M/s Sewa Kendra to Beej Nigam. The Exhibit 8 shows the visit of staffs for collecting money. The Exhibit is written report. The series of Exhibit 10 shows amount of different kinds of seeds supplied to M/s Kisan Sewa Kendra and received by different persons on its behalf. The series of Exhibit-11 shows Challan cum invoice. Thus, on scrutiny of the arguments of 10 defence fails down with minor contradiction not necessary materials for just decision of the case.
The similar is arguments be defence in respect of contradiction of witness, no PW 7 and PW 8. In view of the arguments put forward by the prosecution, the arguments of defence does not seen to be convincing.
The learned defence counsel's argument has been well countered by the prosecution.
I find that accused persons were facing trial U/s 409, 420, 120(B) read with Section 34 of Indian Penal Code. It will transpire that earlier charges were framed U/s 406, 420, 120(B) r/w 34 of I.P.C. which was altered vide ordersheet dated 17.7.2001 and the charges were framed U/s 409, 420, 120(B) r/w section 34 of I.P.C. The prosecution failed to examine/produce any witness after alteration and hence the evidence is being appreciated in respect of section 406,420,120(B) r/w 34 of I.P.C.
Thus, from the foregoing analysis in view of depositions and documents, I find that there was entrustment, of property and conspiracy to cheat Beej Nigam and criminal breach of trust was committed. Thereafter it is ordered that all the three accused persons facing trial are formed guilty under Section 406,420,120(B) read with Section 34 I.P.C. Accordingly, they stand convicted and their bail bond is cancelled and they are taken into custody."
18. The judgment passed by the learned trial court was assailed mainly on the following grounds.
(i) Partnership deed or any document has not been adduced into evidence to show that the petitioners were partners of the firm.
(ii) There is no oral or documentary evidence to show that all the petitioners acted or represented M/s Kisan Sewa.
(iii) The offence of breach of trust under Section 406 IPC requires entrustment but in the instant case, transaction can at best be called sale and purchase for non-payment of consideration amount and in sale purchase transactions civil remedies are available.
(iv) In absence of any mens rea, the criminal intention, the offence of criminal breach of trust is not made out and it remains a civil wrong.
19. The appellate court also considered the evidences on record and upheld the conviction of the petitioners except under Section 120B of IPC and also modified the sentences as 11 mentioned above.
20. This Court finds that the details of the various exhibits have been given in Paragraph-12 of the judgment passed by the learned appellate court which included Exhibit-4 in which the names of the partners of M/s Kisan Sewa are mentioned as Satya Prakash Verma, Ganesh Prasad Sahu, Bahura Sahu and Nemchand Bhagat.
21. The learned appellate court while considering the first point as mentioned above decided the issue mainly vide Para-17, 18 and 19 which read as under.
"17. Regarding first point, as to whether the Appellants / accused persons were partners of M/s Kisan Sewa, exhibit 4 the request letter is on the letter head of Kisan Sewa in which accused Ganesh Prasad Sahu, Bahura Sahu, Nemchand Bhagat have been shown to be partners. Para 32 of the cross- examination P.W. 6, the informant has deposed that the case has been filed against other accused persons on the basis of the partnership letter, which he had gone through. It has been strongly argued on behalf of the appellants that this deed which was available with the informant has not been brought on record to show that other appellants/accused persons were partners. I am not ready to accept this argument for the reason that the partnership deed is a document which in the normal course of human conduct (Section 114 of the Evidence Act) in public and private business in normal circumstances can be presumed to be in the custody of the partners. From para 32 of the P.W. 6, it can be inferred that this document was made available for inspection, but there is nothing to suggest that it was handed over to the informant, or the Bihar State Beej Nigam.
18. The partnership deed is such a document, which can in normal circumstance be presumed to be in possession of the partners who are accused in the present case. Section 65(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, then in such cases secondary evidence relating to it may be given. Section 63(5)-secondary evidence means and includes oral account of the contents of the document given by some persons who has himself seen it.
19. Here, although the partnership deed has not been adduced into evidence, but P.W. 6 the informant of this case has deposed in para 32 that he has seen the letter where these accused persons were shown to be partners. This letter has been marked as exhibit 4. P.W. 1 has deposed that he used to 12 see Ganesh Sahu and Bahura Sahu sitting in Kisan Sewa at Barwatoli chowk, Lohardaga. He has also identified both of them. It is significant to note that at no point during trial by way of giving suggestion to the prosecution witnesses, the specific defence of not being partners of the firm, Kisan Sewa has been put forward by the appellants/accused persons. This defence has not even come up in the statement under Section 313 of the Cr. P.C. that they were not the partners of the firm. Under the circumstance, in view of the oral and documentary evidence it can be logically and safely inferred that the appellants/accused persons were partners of Kisan Sewa Lohardaga."
22. The second issue regarding entrustment with the seeds and its dishonest misappropriation by the firm was also considered in Para-20 and after considering the materials on record "20. The next question for determination is, whether Kisan Sewa was entrusted with seeds, which was dishonestly misappropriated by the firm?
The first essential ingredient of the offence is entrustment. The property, which is the subject matter must have been entrusted. The expression entrusted in Section 405 is not a term of law, and may have different implication in different context. In its most general significance of it imparts is, handing over of the possession for some purpose which may not imply the conferring of any proprietary right at all. The expression "entrustment" carries with it the implication that the person handing over any property continues to be its owner. A person handing over the property must have confidence in the person taking property so as to create a fiduciary relationship between them. As long as the accused is given possession of property for specific performance or to deal with it in a particular manner, the ownership if any of some person other than the accused, it can be said to be entrusted with property. An entrustment can be both implied.
Here in the present case the seeds were entrusted to the partnership firm for specific purpose i.e. for distribution of improved seeds to the farmers (exhibit-4). In any sale transaction, the string of conditionalies are not attached. Exhibit-5 is the office order by which Kisan Sewa was appointed as Service Agent in conformities to terms and conditions of Bihar State Beej Nigam. The seeds, which were supplied to the farmers, a government subsidy was also admissible. The remuneration was paid by way of commission, which is evident from column 10 of exhibit 6. Exhibit 11 series go to show that these were in the nature of material transfer and not absolute sale. On the basis of these materials on record there can be no doubt that the transaction were not sale but 13 were entrustment for specific purpose."
23. The learned counsel for the petitioner has heavily relied upon the judgement passed in the case of Sham Sunder and Others
-vs- State of Haryana (1989) 4 SCC 630 to submit that even assuming that the petitioners were sleeping partners, no criminal liability could be fastened upon them. This argument was advanced as a submission was made before the learned trial court by the learned APP, that the petitioners could be sleeping partners.
24. The judgement passed in the case of Sham Sunder (supra) related to vicarious liability of the partners of the firm under the Essential Commodities Act. In the said case, all the partners of the firm were charge-sheeted and put to trial and were convicted for offence under the said Act. It was argued that there was no evidence adduced by the prosecution that the appellants were in-charge of the business of the firm when the offence was committed and in the absence of any such evidence, the conviction could not be sustained. In the aforesaid background, the Hon'ble Supreme Court held that there is no vicarious liability in criminal law unless the statute takes that also within its fold. It was also observed in para 10 as under: -
10. It is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only 14 when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for the State.
25. From perusal of the materials on record, both oral and documentary as discussed above, particularly evidence of P.W-7 and 8 and Exhibit-4 and 8 , there is enough evidence on record that the petitioners were the partners of the firm and were also dealing with corporation as the P.W.-8 was a field officer of the corporation who identified the partners Satya Prakash Verma, Ganesh Prasad Sahu, Bahura Sahu and Nemchand Bhagat of Kisan Sewa Kendra Lohardaga as he had visited Sewa Kendra, the partnership firm , for collection of dues and has exhibited Exhibit-8 reflecting the dates of visits in connection with realization of the dues and during his last visit it transpired that M/s Kisan Sewa, Lohardaga was closed because of differences amongst its partners. In the present case the petitioners have not been convicted on account of vicarious liability but on account of their acts and omissions while being the partners of the firm and had full knowledge about the affairs, and even the officers of the corporation knew them through their field visits for realisation of the dues. The aforesaid judgement passed in the case of Sham Sunder (supra) is of no help to the petitioners and does not apply to the facts and circumstances of this case. The learned appellate court also considered the aspect of criminal liability of each partner acting in due course in business of the firm. The appellate court was of the view that if it is proved that the firm was entrusted with property or had a dominion over it, and such property has been dishonestly misappropriated it or converted to own use, and where one 15 partner has been given authority by the other to collect the money or property of the firm and if he dishonestly misappropriates it or converts it of his own use, then this section is attracted.
26. This Court finds that although a submission was made before the learned trial court by the learned APP, that the petitioners could be sleeping partners, but neither there is any such case from the side of the prosecution nor such defence was raised during evidence from the side of the petitioners. Rather, the petitioners were in complete denial of the case of the prosecution. Further, the evidence of P.W. 8, who was a field officer posted at Ranchi branch of the corporation during the period in question, has deposed that he identifies the partners namely, Satya Prakash Verma, Ganesh Prasad Sahu, Bahura Sahu and Nemchand Bhagat of Kisan Sewa Lohardaga and he has visited Sewa Kendra for collection of dues of the firm. He had also deposed that he had seen the partnership deed. He has been fully cross examined and he has also exhibited Exhibit-8 which are the dates on which different staffs/officers of the corporation visited Kisan Sewa Kendra in connection with realization of the balance amount. The evidence of the P.W-8 as well as other evidences on record clearly demonstrates that the petitioners were not only partners of the firm but were also involved with the affairs of the firm.
27. This court finds that the impugned judgements holding that the petitioners were the partners of M/s Kisan Sewa is based on documentary evidences as well as oral evidences on record and it is not based on exhibit-4 only, as argued by the learned counsel for the petitioners. This would be evident from the evidence of P.W-7 and 8 as discussed above. The non- production of the partnership deed has also been considered by the learned appellate court who has refused to draw 16 adverse inference for its non-production from the side of the prosecution by a well-reasoned judgement. The learned court has based all the findings on the basis of the materials on record, both oral and documentary.
28. So far as the plea that the case was a matter of breach of contract for which there was civil remedy and no criminal case was made out, is concerned, the same was also considered by the learned appellate court vide para 22 of the judgment and rejected the said plea and found that the essential ingredients for offence under Section 406 IPC were present. Learned appellate court ultimately upheld the conviction of the petitioners for the offence under Section 406 IPC.
29. So far as the argument of the learned counsel for the petitioners that no question was put to the petitioners as to whether they were the partners of the partnership firm while their examination under Section 313 of Cr.P.C., and reliance upon the Judgment passed in the case of Latu Mahto vs. State of Bihar (2008) 8 SCC 395 are concerned, this Court finds that one of the questions put to the petitioners under section 313 Cr.P.C. was that there was evidence against them that they misappropriated Rs.2,56,693.75/- of the Bihar Rajya Beej Nigam from 26th June, 1987 in the name of the firm namely, M/s. Kisan Sewa and both the petitioners simply denied the allegation. This court is of the considered view that the aforesaid question was sufficient enough to satisfy the requirement of section 313 of Cr.P.C. The petitioners were fully aware of the allegations faced by them and the evidences put on record. Accordingly, the judgment passed in the case of Latu Mahto (supra) is of no help to the petitioners and there is no force in the argument advanced on behalf of the petitioners in this regard.
30. The learned appellate court has also recorded that no separate 17 charge under Section 120B of the IPC was framed, rather, charge was framed under Section 406, 420 IPC read with Section 120B and 34 of the Indian Penal Code and in the absence of separate charge under Section 120B, the conviction of the petitioners under Section 120B of IPC was held to be not sustainable and therefore the conviction of the petitioners under Section 120B of the IPC was set aside. The judgment of conviction passed under Section 406 of the Indian Penal Code and Section 420/34 of the Indian Penal Code was upheld.
31. The learned appellate court also considered the fact that the offence relates to embezzlement of public money and refused to extend the benefit of probation of offenders Act.
32. The learned appellate court considered the respective role played by the petitioners in the commission of offence and directed that simple imprisonment for 2 years each under Section 420/406 of Indian Penal Code and fine of Rs. 3,000/- under Section 420 IPC would meet the ends of justice and both the sentences were directed to run concurrently. The learned appellate court partly allowed the appeal by setting aside the conviction under Section 120B of Indian Penal Code and with aforesaid modification of sentence.
33. The Hon'ble Apex Court has explained the power of revisional court in the case of Jagannath Choudhary and others reported in (2002) 5 SCC 659 at para. 9 as under:-
"Incidentally the object of the revisional jurisdiction as envisaged u/s 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some underserved hardship to individuals. (See in this context the decision of this Court in Janata Dal Vs. H.S. Chowdhary). The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the 18 same has been an appeal, the application would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction."
34. The revisional power is further explained in the case of Ramesh Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) at para. 13 as follows:
"It is well settled that revisional interference may be justified where:
(i) the decision is grossly erroneous.
(ii) there is no compliance with the provisions of law.
(iii) the finding of fact affecting the decision is not based on evidence.
(iv) material evidence of the parties is not considered and
(v) judicial discretion is exercised arbitrarily or perversely."
35. In the case Duli Chand v. Delhi Administration, (1975) 4 SCC 649, the Hon'ble Supreme Court while considering the scope of revisional power held in paragraph-5 as follows:
"5. The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse."
36. In view of the aforesaid discussions and findings and considering the entire facts and circumstances of this case, this 19 Court is of the considered view that the learned courts below have passed well-reasoned judgements considering every aspect of the matter and every argument advanced on behalf of the petitioners so far as conviction of the petitioners under section under Section 406 of the Indian Penal Code and Section 420/34 of the Indian Penal Code are concerned. The appellate court has set-aside the conviction of the petitioners under section 120B IPC on technical grounds and has also modified the sentence of the petitioners. There being no perversity or illegality or material irregularity in the impugned judgement of conviction of the petitioners, no interference is called for.
37. So far as the sentences of the petitioners are concerned, this Court finds that during the pendency of this revision petition, the petitioners had surrendered on 17.11.2008 and they were granted bail on 06.12.2008 and accordingly, they remained in custody for about 20 days and a few days must have been taken in furnishing the bail bonds. This Court also finds that on the date of conviction on 09.04.2008, Petitioner No.2 namely Ganesh Sahu @ Ganesh Kumar Sahu was aged about 61 years and the Petitioner No.1 namely, Nemchand Bhagat was aged about 65 years and accordingly, the present age of the petitioners are 74 years and 78 years respectively and the petitioners have faced the rigors of the criminal case since the year 1986 and accordingly, more than 35 years have passed. Considering the entire facts and circumstances, this Court is of the view that no useful purpose would be served by sending them in judicial custody at this stage of their life and ends of justice would be served, if the sentences of the petitioners are modified and some fine is imposed upon them. There is no minimum sentence as such prescribed for the offence for which the petitioners have been convicted.
38. Accordingly, the sentences of the petitioners namely, Ganesh 20 Sahu @ Ganesh Kumar Sahu and Nemchand Bhagat are modified and reduced to the period already undergone by them in judicial custody with fine of Rs.1,00,000/- (Rs One lakh) for each of the petitioners.
39. The aforesaid fine amount shall be deposited by each of the petitioners before the learned trial court within a period of eight months from the date of communication of a copy of this Judgment to the learned court below. In case, the fine amount is not deposited within the stipulated time frame, the bail bonds furnished by the petitioners will be immediately cancelled by the learned court below and the petitioners would serve the sentences as imposed by the learned appellate court.
40. As a cumulative effect of the aforesaid findings, this criminal revision petition is hereby disposed of with modification of the sentences of the petitioners.
41. It appears from the record of this case as well as the arguments of the learned counsel for the petitioners that co-accused Satya Prakash Verma absconded and he did not face the trial. Accordingly, the learned court below as well as the State are directed to take all appropriate steps in connection with the co- accused Satya Prakash Verma and to proceed in accordance with law.
42. Pending interlocutory application, if any, is dismissed as not pressed.
43. Let the lower court records be immediately sent back to the learned court below.
44. Let a copy of this order be communicated to the learned court below through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.) Binit/