Himachal Pradesh High Court
Ravi Dutt vs State Of Hp on 12 July, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 99 of 2008
Reserved on: 27.6.2016
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Date of Decision: 12.7.2016.
___________________________________________________________
[
Ravi Dutt .........Petitioner.
Versus
State of HP ............Respondent.
Coram
of
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?
For the petitioner:rt Mr. Ajay Sharma, Advocate.
For the respondent: Mr. Rupinder Singh Thakur, Additional
Advocate General.
________________________________________________________
Sandeep Sharma, J.
Present criminal revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the judgment of conviction and sentence rendered by learned Sessions Judge, Hamirpur, H.P., in Criminal Appeal No. 41 of 2007 dated 30.5.2008, reversing the judgment of acquittal dated 14.5.2007, passed by Judicial Magistrate, Ist Class, Bilaspur, District Bilaspur, HP, in Case No. III-1-2004/87-II-2004.
2. Briefly stated facts as emerge from the record necessary for adjudication of the case are that complaint Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:47:55 :::HCHP -2-Ex.PW1/A was sent to Hon'ble the Chief Justice of Himachal Pradesh by the complainants namely Dinesh Kumar, Sanjeev .
Kumar and Suresh Kumar etc., alleging therein that the petitioner accused Ravi Dutt (hereinafter referred to as 'the accused')deceived them and despite taking money from them, he failed to get their admissions done in the Bachelor of Education of Course in the Agra University. As per complainant, in July, 2001, Manager Kids Buds Senior Secondary School Bijhar, District rt Hamirupr, HP, got advertisement published in the News paper namely Divya Himachal for admission in B.Ed. Courses.
Complainants also alleged that each of the applicant gave the accused Rs. 60,000/-, who took them to Agra, where he again took Rs. 10,000/- each from them but despite several promises, they were not got admitted in the University by the accused.
Record reveals that Secretariat of Hon'ble the Chief Justice of Hon'ble High Court of Himachal Pradesh directed the Director General of Police, Himachal Pradesh, to investigate the matter.
Accordingly on 3.9.2003, complaint was received at Police Station Barsar, District Hamirpur, HP, for necessary action. As per complaint, in the year, 2001, accused assured the complainant ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP -3- Dinesh Kumar and other candidates that he will get their admission done in the B.Ed. Course in the Agra University and in this regard, .
he demanded an amount of Rs. 60,000/- each from the aspirants including complainant, which was paid to him as per version put forth by the complaint. Complainants also further alleged that though, accused repeatedly assured them that in case their of admission is not got done, money would be returned back but money was not paid back. Since accused left them at some rt unknown place at Agra, they managed to come back to the house of the accused at Hamirpur, HP, where he was not present at that time. But somehow accused met them and refused to make payment. He again reassured that he will get their admission in college at Aligarh. Complainants further stated that when they inquired the matter from the Principal of Vaishnav College, Aligarh, regarding their admissions, they were informed that no admission of them have been made in this college.
Complaint also reveals that after one month, accused again called complainants and other aspirants in Delhi and introduced them with one person and stated that he is the Registrar of Agra University. But fact remains that no admission, whatsoever, was ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP -4- got done in any of the college either at Agra or Aligarh. As per complainants, thereafter accused returned their original .
certificates but refused to pay the money. Thereafter, the complainants filed written complaint to the Hon'ble the Chief Justice of Himachal Pradesh, who in turn forwarded the same to the police for taking necessary action in the matter. Subsequently, of on the basis of the complaint Ext.PW10/A, police lodged FIR PW10/D against the accused and arrested him. Police also took in possession rt one receipt Ext.PW9/A. After completion of investigation, Police came to the conclusion that prima-facie case exists against the accused under Sections 406 and 420 of the Indian Penal Code and filed challan before the competent court of law.
3. Learned trial Court after satisfying itself that prima facie case exists against the accused, charged him for committing offences under Sections 406 and 420 of Indian Penal Code, to which accused pleaded not guilty and claimed trial.
4. Learned trial Court also recorded the statement of accused under Section 313 Cr.PC., wherein, he denied all allegations and claimed that he is being falsely implicated.
::: Downloaded on - 15/04/2017 20:47:55 :::HCHP -5-Learned trial Court, on the basis of evidence available on record, came to conclusion that prosecution has not been able to bring .
home the guilt of the petitioner-accused and, as such, acquitted him of the charges framed against him.
5. Respondent-State being aggrieved with the judgment of learned trial Court dated 14.5.2007, filed appeal under Section of 378 of Cr.PC before the Court of learned Sessions Judge, Bilaspur, who vide judgment dated 30.5.2008, allowed the appeal and rt reversed the judgment of acquittal of the learned trial Court and sentenced the accused to undergo rigorous imprisonment for three years and to pay sum of Rs.5,000/- under Section 420 Indian Penal Code and in default, to further undergo simple imprisonment for one month. Hence, this petition before this Court.
6. Mr. Ajay Sharma, appearing for the petitioner-accused vehemently argued that impugned judgment is not based upon the correct appreciation of the material evidence available on record and, as such, same deserves to be quashed and set-aside.
He contended that learned Appellate Court has not appreciated the evidence in its right perspective and impugned judgment is based on conjectures and surmises and, as such, same cannot be ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP -6- allowed to be sustained. He further contended that court below has swayed in emotion and without ascertaining the correctness .
and genuineness of the statements given by PWs has wrongly convicted and sentenced the accused for having committed offences under Section 420 of the Indian Penal Code. It is also contended on behalf of the accused that allegation against the of petitioner-accused by prosecution witnesses that advertisement was issued in newspaper namely Divya Himachal for admission in rt courses has been not proved at all because there is nothing on record to suggest that advertisement was got issued by the accused. He also contended that there is no proof/evidence worth the name led on record to suggest that complainants had actually travelled to Aligarh and talked to principal of the college.
Since no proof whatsoever, of stay of complainants for 10 days has been placed on record, versions put forth by the PWs could not be relied upon in the absence of any documentary evidence. During the arguments, he made this court to travel through the statements of various PWs as well as documentary evidence available on record to demonstrate that there are major contradictions in the statement of all PWs and they are not ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP -7- supporting each other. In this regard, he invited attention of this Court to Ext.PW1/A complaint and stated that the same was .
scribed by one witness only but few witnesses denied having signed the same especially PW9 whose name was not even mentioned in the FIR. Mr. Sharma also stated that her (PW9) statement was not recorded by the police instead, statement of of her husband was recorded. Similarly PW6 stated that the contents of Ext.PW1/A are not known to him. As per Mr. Sharma, there is rt variation in the complaint and the statements made by the PWs as far as amount allegedly paid by the complainants to the accused.
He also invited attention of this Court to the statement of PW4, wherein PW4 stated that his daughter approached the school authorities, but she was informed that accused has no links, whatsoever, with the school in question. Mr. Ajay Sharma forcefully contended that there is no evidence on record worth the name to suggest that money was received by the accused because none of the PWs supported the case of the complainant Dinesh Kumar that he had actually paid amount in their presence, rather, all the PWs, instead of proving the case of the prosecution, have narrated their own instances. Lastly, he prayed that ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP -8- judgment passed by the learned appellate Court may be quashed and set-aside.
.
8. Per contra, Mr. Rupinder Singh Thakur, learned Additional Advocate General, appearing for the respondent supported the judgment of conviction passed by court below and argued that no interference, whatsoever, of this Court is warranted of in the present facts and circumstances of the case. It is contended on behalf of the respondent-state that bare perusal of rt the evidence on record clearly suggests that prima-facie case exists against the accused, from where it stands proved that accused had taken the money from the complainant and other persons assuring them admission in courses at Agra. But neither admission was got done nor money was ever paid back to them and, as such, accused deserves no leniency rather, he has been rightly convicted under Section 420 IPC. He contended that this Court has very limited powers as far as re-appreciation of the evidence, especially, when it stands duly proved on record that learned appellate Court has meticulously dealt with each and every aspect of the matter. He prayed that judgment of the learned appellate Court deserves to be upheld.
::: Downloaded on - 15/04/2017 20:47:55 :::HCHP -9-9. I have heard learned counsel for the parties as well carefully gone through the record.
.
10. True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but in the instant case, where accused has been convicted and sentenced to undergo imprisonment for three years, it would be of apt and in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to rt ascertain that the judgments passed by learned courts below are not perverse and same is based on correct appreciation of the evidence on record.
11. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:-
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8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the of inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such rt power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
12. First and foremost question, which needs to be looked into by this Court is whether any advertisement was got published by the accused or Kids Buds school in Daily Newspaper Divya Himachal, wherein candidates were invited for admission in B.Ed course at Agra. Though, this Court had an occasion to travel ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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through each and every document during the proceedings of the case but it could not lay its hand to any document suggestive of .
the fact that advertisement, if any, was got published in the Divya Himachal Newspaper inviting interested candidates to contact for admission in B.Ed. College. Though there is repeated mention of advertisement in statements/depositions of PWs but there is no of such like document available on record showing that any advertisement was ever issued, hence, in the absence of the rt advertisement available on record, this court finds it difficult to accept the contention put forth by the prosecution that accused had actually got published advertisement in the news paper Divya Himachal. Rather, at this stage, before proceeding to decide the case on merits, this court is constrained to observe that investigating agency and thereafter prosecution ought to have placed on record advertisement published in Divya Himachal by the accused to prove its case beyond reasonable doubt but in the present case, for the reasons best known to the prosecution, neither copy of advertisement has been placed on the record to the court nor anybody from the office of the News paper Divya Himachal/Dainik Bhaskar have been examined as PW. The ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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aforesaid omission on the part of the police/prosecution speaks volumes of the callous and negligent attitude of the prosecution .
while prosecuting the case in the court of law. Since entire case hinges upon the advertisement allegedly got published in the newspaper by the accused, investigating agency/prosecution should have made all out efforts/endeavors to place the same on of record, which was the backbone/necessary ingredient for prosecution to prove its case.
13. rt In the present case, prosecution with a view to prove its case examined as many as twelve witnesses.
14. Further perusal of the judgment of acquittal passed by the trial Court also suggests that even during the submissions having been made by the learned APP appearing on behalf of the State started his submissions by stating that accused got advertisement published for the admission in various courses, and aspirants on the basis of advertisement contacted the accused and accused in turn assured their admission in Agra University in B.Ed. Course, meaning thereby, the entire case of the prosecution was itself based upon the advertisement allegedly got issued in daily Newspaper Divya Himachal by the accused. Since there is ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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nothing on record suggestive of the fact that advertisement was got published by the accused, as has been rightly recorded by the .
trial Court while acquitting the accused of the charges, case set up by the prosecution deserves to be dismissed on the aforesaid sole omission on the part of the prosecution. But this court solely with a view to ascertain the genuineness and correctness of the of allegations made by the PWs decided to proceed ahead with the matter on merit so that no injustice is caused to the parties and rt guilty, if any, is punished.
15. Perusal of documents i.e. Ext.PW1/A and FIR Ext.PW10/D suggests that complainant Dinesh Kumar along with other aspirants paid an amount of Rs. 70,000/- to the accused, who had assured them admission in B.Ed. Course at Agra. PW1 Dinesh Kumar stated that after he read advertisement in Divya Himachal allegedly got issued by the accused Ravi Dutt contacted him telephonically for admission in Bed Course. He also stated that accused assured him admission and instructed him to make available six photographs for filing prospectus along with original certificates. He also stated that he gave Rs. 1500/- to the accused as prospectus fee and after one month, accused along ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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with other 15-20 people went to Agra in Tata-Sumo for appearing in test but when they reached Agra, no test was held. He also .
stated that thereafter accused informed that their admissions have been got done and they duly handed over Rs.60,000/- each to him. PW1 also deposed that thereafter, accused again went to Agra with them and charged Rs. 10,000/ each. It has also come in of his statement that there accused assured them of admission in Aligarh University or Vaishnav College Agra and made them meet rt one person who was stated to be Registrar of the Agra University.
In his statement, he also further stated that after staying for 10 days at Aligarh, accused advised them to go back to their houses and as and when the admission is done, he would inform them telephonically. This PW also stated that thereafter accused returned their original certificates but no money was returned and thereafter, they filed complaint Ext.PW1/A against the accused, however, in his cross examination, he admitted that he scribed the complaint at his house at Bilaspur. Similarly, PWs2 to 8 also supported the version put forth by PW1. They all deposed that after going through the advertisement published in Divya Himachal, they contacted Kids Buds School at Bijhar and paid and ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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amount of Rs. 60,000 to the accused at Bijhar. They all stated that no receipt, whatsoever, was issued to them in lieu of the amount .
taken by them. Interestingly PW 4 Shri Chand also paid money to the accused for admission of her daughter stated that he read an advertisement in Dainik Bhaskar and then contacted the accused, who demanded Rs. 50,000 from him for admission of his daughter.
of He also stated that thereafter he handed over Rs. 25,000/- to the accused but no receipt, whatsoever, was given by him. He also rt stated that after half a month, accused telephonically informed that admission has been secured and further demanded remaining amount, which as per PW4 was given to him.
Interestingly, PW5 also deposed that after going through the advertisement in Dainik Bhaskar got published by kids Buds School, he contacted one Shri Anil Sharma, who assured him his admission in B.Ed course. He further stated that Anil Sharma, and Ravi Dutt demanded Rs. 80,000/- from him. He also stated that thereafter Anil again gave him a ring and they settled the matter in Rs.
40,000/-, which was handed over to accused, who later on accompanied him to Agra and Aligarh but neither admission was got done nor money was paid back. PW6 to PW9 also stated that ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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after reading advisement in Dainik Bhaskar, they contacted the accused, who charged Rs. 70,000/- each from them and .
accompanied them to Agra and Aligarh for admission. Aforesaid prosecution witnesses stated that neither money was given back nor admission was got done.
16. Admittedly, PWs No. 3 to 8 have mentioned with of regard to publication of advertisement, if any, in the Newspaper Dainik Bhaskar, whereas PW1 categorically stated that rt advertisement was got published by Kids Buds School in Divya Himachal. But fact remains that neither advertisement published allegedly in Divya Himachal nor in Dainik Bhaskar were ever proved on record by the complainants. Name of PW9 was never mentioned in the FIR nor in complaint, but for the reasons best known to the police, she was not associated by police during the course of investigation. She also stated that in year, 2000, she read an advertisement in Dainik Bhaskar and thereafter, she asked her husband to go to Bijhar school, who contacted the accused and paid Rs. 11,000/-. As per PW-9, accused assured her telephonically that her admission has been done and demanded further money which was again handed over by her husband to the accused, ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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who issued receipt Ext.9/A. In her cross examination, she admitted that on 20.9.2004, her husband lodged FIR at police .
station Barsar but there is no mention of FIR, if any, lodged by PW-9 in the present case instituted by Police. She also admitted that police did not record the statement of her husband.
17. PW10 Baldev Singh D.I.P. Hamirpur is a formal witness of who only stated that on 3.9.2003, complaint Ext.PW10/A with letter Ext.PW10/B was received at Police Station Barsar, on which he rt appended endorsement Ext.PW10/C and lodged FIR Ext.PW10/D. PW11 ASI Karam Singh also deposed before the Court that during the course of investigation, he had recorded the statements of the witnesses namely surinder Sharma, Jagdish Chnad, Smt. Bandna Devi and Dinesh Kumar as per their version.
18. PW12, ASI Mahinder Singh, Investigating Officer of the case, stated that he had recorded the statements of Dinesh Kumar Ext. D1, Suresh Kumar, Ext.D4, Sanjiv Kumar Ext.PW12/A and Desh Raj Ext.D3 as per their version. But in cross examination he admitted that he did not collect evidence to ascertain the fact that the complainants and others had ever stayed at Agra and Aligarh He also admitted that the witnesses never disclosed him ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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that they met Registrar. He also admitted that he did not conduct any investigation at Kids buds school, Bijhar.
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19. Conjoint reading of statements of aforesaid PWs suggests that on the basis of advertisement published in the Newspapers namely Divya Himachal and Dainik Bhaskar, complainants as well as other aspirants contacted the accused for of admission for B.Ed. Courses. It also emerges from the aforesaid statement given by the PWs that accused assured the rt complainant as well as other persons of admission in Bed courses at Agra and thereafter, Aligarh and in lieu of which he took considerable amount from the complainant and others. After careful perusal of the evidence led on record by PWs, this Court has no hesitation to conclude that police has been very very negligent and callous while investigating the matter at hand. As observed above, there is no document on record made available by the prosecution to substantiate the story of prosecution qua the publication of advertisement, if any, in daily newspaper Divya Himachal or Dainik Bhaskar. Since all the PWs have stated that they contacted accused Ravit Dutt for admission after reading the advertisement. Prosecution was expected to place on record ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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some documentary evidence to substantiate the aforesaid claim put forth by the PWs. As emerges from the statement of PW ASI .
Karam Singh, no effort whatsoever was made to collect the relevant documents during the investigation. There is no explanation worth the name qua the omission on the part of the prosecution in not placing the advertisement on record. Had the of police bothered to collect some other relevant evidence to ascertain the fact that complainant as well as other similar persons rt had actually stayed in Agra and Aligarh with the accused, prosecution would have been able to prove its case to certain extent what to talk of non placing of advertisement by prosecution, which was the very crucial/important for adjudication of the entire case, no efforts, whatsoever, have been made by the police to connect the accused with the alleged offence. In the present case, all the PWs have stated that they all had gone to Agra and Aligarh with the accused and stayed in some Evergreen hotel. Prosecution witnesses also stated that they contacted Principal of Vaishnav College Aligarh, who informed that their admissions have been not done. It has also come in the statements of PWs that accused had made them to meet one ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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person who was stated to be Registrar of the Aligarh University. But despite aforesaid clues given by the PWs to the police at the time .
recording of their statements under Section 161 Cr.PC, police miserably failed to ascertain the genuineness and correctness of the assertions made by PWs. Thereafter, even prosecution not bothered to lead any evidence on record to connect accused of with the alleged act of cheating and fraud committed by him.
20. PW12 ASI Mahinder Sngh stated that he did not rt conduct any investigation at Kids Buds School Bijhar, meaning thereby,, no effort whatsoever, was made to find out the person, who actually got published the advertisement in the news paper because admittedly, as per the version put forth by all the PWs advertisement in Divya Himachal or Dainik Bhaskar was got published in the name of Kids Buds School but for the reasons best known to the prosecution/ police, no person from the school was either associated in investigation nor any one was cited as prosecution witness.
21. The receipt Ext.PW9/A which as per PW9 was given by the accused to her husband at the time of handing over of the amount. Careful perusal of the statement made by PW9 suggests ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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that money, if any, was paid to the accused by her husband not by her but interestingly, her husband has not been cited as .
prosecution witness. Had police cared to cite him as witnesses to prove Ext.PW9/A, court would have lent some credence to the version put forth by PW9 but in the absence of statement of husband of PW9, genuineness and correctness of receipt of Ext.PW9/A could not be ascertained and, as such, same was rightly rejected by the learned trial Court below.
22. rt Careful perusal of the depositions made by the complainant-PW1 depicts that he on the basis of advertisement contacted the school at Bijhar telephonically for admission in B.ed.
Course. As per him, he contacted Kids Buds School on the basis of advertisement in news paper for B.Ed. admission and paid Rs.
1500/- as prospectus fee but prospectus, if any, is not available on record. It has also come in his statement that he along with 15/20 persons, went to Agra in Tata Sumo for appearing in test, but no test was held there. At this stage, it is also not understood that why no efforts, whatsoever, were made by the prosecution to associate owner/driver of the Tata Sumo, who allegedly took them to Agra. Similarly, as per version of the PWs, they stayed at Agra ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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for 10 days in some hotel, but no receipt, bill, whatsoever, have been placed on record to substantiate the case of the .
complainant. Now coming to the payment of amount which varies from case to case, none of the PWs has supported the case of each other. Rather, during their depositions made in the Court they have narrated their own instances, but none of them stated of that they made payment to the accused in the presence of other PWs. Careful perusal of statements given by PWs1 to 9 suggests rt that they simply deposed that they paid certain amount to the accused, but none of them categorically supported the version put forth by complainant. Nobody stated that PWs 1 and 2 had made payment to the accused Ravi Dutt in their presence, meaning thereby, there is no eye witness to the payment, if any, made to the accused. Admittedly, PW9 placed on record one receipt Ext.PW9/A, allegedly given by the accused but as has been noticed above, money in that case was handed over to the accused by husband of the PW9, who has been not cited as prosecution witness and as such correctness and genuineness of the receipt could not be ascertained and as such same was not rightly relied upon by the learned trial Court.
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23. Careful perusal of the statement given by PW1 suggests that he paid money to the accused in presence of his .
friend and his brother but interestingly, none of these aforesaid persons were cited as prosecution witnesses. Hence in the absence of specific proof that money was handed over to the accused by the complainants, version put forth by prosecution of cannot be accepted on its face value. Prosecution with a view to prove its case examined aforesaid witnesses to prove that so many rt people in terms of advertisement paid money and deposited certificates with the accused. This Court during proceedings of the case had an occasion to peruse the statements of each and every prosecution witnesses, as referred above, but careful perusal of depositions made by the aforesaid witnesses clearly suggests that none of the PWs supported the version put forth by the other prosecution witnesses. All the prosecution witnesses instead of proving the case of complainant and other persons narrated their own instances. Since in the present case, where police on the basis of specific complaint filed by PW1, registered the case against the accused, witnesses cited by the prosecution were expected to support the case of the complainant that amount of ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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Rs. 70,000/- along with original certificate was deposited by PW1 in their presence with the accused but in the present case, none of .
the PWs have supported the statements given by PW1.
Interestingly, in the present case, PW5 specifically stated that at the time of payment of money to accused one Anil Kumar was also present, but police, for reasons best known to it, did not array of Anil as accused in the present case. In the absence of some specific proof, it cannot be believed that money was paid by the rt complainant to the accused. Moreover, in the present case, no person from the said school or from the office of daily newspaper Dainik Bhaskar/Divya Himachal was associated in the investigation, which further demonstrates the callous attitude of the police during investigation. Moreover, in the present case, where police charged the accused under Sections 406 and 420 of the Indian Penal Code, did not make any effort to adduce sufficient evidence on record suggestive of the fact that accused fraudulently and dishonestly induced the complainants to deposit/pay money for getting them admission in B.Ed. courses.
Perusal of material available on record, as has been discussed in detail above, though suggests that money was paid to the ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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accused by the complainant but no evidence worth the name has been led on record to demonstrate that accused had .
fraudulent/dishonest intention at the time of making promise and as such, mere failure on his part to keep his promise subsequently may not render him liable to be punished under Section 420 of the Indian Penal Code, rather, it was incumbent upon the prosecution of to prove that intention of the accused was dishonest at the time of making promise but in the present case, all the prosecution rt witnesses have unequivocally stated that after taking money from them, accused had taken them to Agra/Aligarh for getting their admissions done, meaning thereby, pursuant to promise made by him, accused had taken them to the respective colleges for admission and, as such, it cannot be concluded that at the time of making promise, he had dishonest intention. It is settled principle of law that to charge person guilty of offence of cheating, it is required to be shown that his intention was dishonest at the time of making promise, especially, in order to secure conviction of the person in the offence of cheating, mens-rea on the part of that person, should be established in all circumstances, failing which, case of the prosecution deserves to fail as far as offence of ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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cheating is concerned. In the present case, no evidence worth the name has been led on record by the prosecution to suggest .
that accused had fraudulent/dishonest intention while taking money, rather, there is evidence suggestive of the fact that after taking money, accused had made an effort to secure admission for the complainant. Hence, mere failure to keep up the promise of subsequently cannot be presumed as an act leading to the cheating.
24. rt Since case at hand was registered on the basis of specific complaint, accused cannot be held guilty of having committed offence under Section 420 Indian Penal Code on a mere statement of witnesses that they had also made payment to the accused for admission in the courses. It is also not understood that how accused was charged under Section 406 and 420 Indian Penal Code by the police because police investigated agency/prosecution has not placed on record any evidence, be it ocular or documentary, which can be suggestive of the fact that ingredients of Sections 406 and 420 of Indian Penal Code are attracted in the facts and circumstances of the case. After perusing the material available on record though, it emerge that ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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some wrong has been caused to the complainants but as has been observed, police has been very very callous and negligent in .
investigating the matter, rather, it appears that police investigated the matter half heartedly and did not make any sincere effort to collect relevant evidence to connect the accused with the alleged commission of offences.
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25. Reliance is placed on judgment rendered by the Hon'ble Supreme Court in Criminal Appeal No. 2327 of 2014 rt (arising out of SLP (Crl.) No. 9751 /2011) titled Binod Kumar & Ors. v.
State of Bihar and Anr., which reads as under:-
15. Section 405 IPC deals with criminal breach of trust. A careful reading of the Section 405 IPC shows that a criminal breach of trust involves the following ingredients:
(a) a person should have been entrusted with property, or entrusted with dominion over property;
(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so;
(c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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16. Section 406 IPC prescribes punishment for criminal breach of trust as defined in Section 405 IPC. For the offence punishable under Section 406 IPC, prosecution must prove:
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(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 of dishonest manner. There are two distinct parts of the said offence. The first involves the fact of entrustment, wherein an obligation arises in relation to the property over which dominion or control is acquired. The second rt part deals with misappropriation which should be contrary to the terms of the obligation which is created.
17. Section 420 IPC deals with cheating. Essential ingredients of Section 420 IPC are:- (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and (iii) mens rea of the accused at the time of making the inducement.
18. In the present case, looking at the allegations in the complaint on the face of it, we find no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilized the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.
.
26. Similarly, the Hon'ble Apex Court in S.W. Palanitkar and Ors. v. State of Bihar and anr., 2002 (1) SCC 241, has held as under:-
"6.Shri Dushyant Dave, learned Senior Counsel for the appellants urged that the High Court failed to exercise of its power under Section 482 Cr.P.C. having regard to the facts and circumstances of the case in order to prevent abuse of process of the court and/or to secure the ends of justice; that the disputes between the appellants and respondent no. 2 were purely of civil rt nature arising out of contractual relationship relating to commercial transac-tion; even looking to the sworn statements, terms of the agreement and the notice dated 3.10.1997, no case is made out to proceed against the appellants on criminal side, that the essential ingredient of the offence under Section 405 IPC is not made out as the appellants were not entrusted with any property or with domain over property; similarly the ingredients of the offence under Section 415 & 120-B IPC also were not satisfied.
According to him, the learned Magistrate committed a serious error in issuing the process; unfortunately, the High Court, also failed to correct the same, exercising jurisdiction under Section 482 of the Cr.P.C. Alternatively and lastly, he submitted that at any rate no case is made out against the appellants 1-6 and 8.
Hence, issuing a process against them is patently illegal and untenable.
7. Shri L.K. Bajla, learned counsel for respondent No. 2 made submissions supporting the impugned judgment of the High Court and justifying the order passed by the learned Magistrate in issuing the process. More or less, he reiterated the submissions that were made before the High Court.::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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8.Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is .
evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well.
9.The ingredients in order to constitute a criminal of breach of trust are: (1) entrusting a person with property or with any dominion over property (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or willfully rt suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust.
10.The ingredients of the offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b), the act of omission should be one which causes or is likely to cause damage or harm .to the person induced in body, mind, reputation or property.
11. One of us (D.P. Mohapatra J.) speaking for the Bench, in Hridaya Ranjan Prasad Verma & Ors. v. State of Bihar & Anr, [2000] 4 SCC 168, on facts of that case, has expressed thus : (SCC p. 177, para15) "15.In determining the question it has to be kept in mind that the distinc- tion between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the ::: Downloaded on - 15/04/2017 20:47:55 :::HCHP
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accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal .
prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transac-tion, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudu-lent or dishonest intention at the time of of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
rt [emphasis supplied]
27. Reliance is also placed in the judgment of the Hon'ble Apex Court in Arun Bhandari v. State of Uttar Pradesh and Others, 2013 (2) SCC 801, which reads as under:-
21. Before we proceed to scan and analyse the material brought on record in the case at hand, it is seemly to refer to certain authorities wherein the ingredients of cheating have been highlighted. In State of Kerala v. A. Pareed Pillai and another[8], a two-
Judge Bench ruled that : (SCC p.667, para16) "16....to hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise and such a dishonest intention cannot be inferred from a mere fact that he could not subsequently fulfil the promise.
22. In G.V. Rao v. L.H.V. Prasad and others[9], this Court has held thus: (SCC pp.696-97, para7) "7. As mentioned above, Section 415 has two parts. While in the first part, the person must ::: Downloaded on - 15/04/2017 20:47:56 :::HCHP
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"dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a .
thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay[10] a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of of cheating, "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B.[11] that in order to constitute the offence of cheating, the rt intention to deceive should be in existence at the time when the inducement was offered."
23. In S.N. Palanitkar and others v. State of Bihar and another[12], "21...... it has been laid down that in order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating."
24. In the said case while dealing with the ingredients of criminal breach of trust and cheating, the Bench observed thus: - (S.W. Palanitkar case, SCCp. 246, paras 9-10) "9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of ::: Downloaded on - 15/04/2017 20:47:56 :::HCHP
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law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.
10. The ingredients of an offence of cheating are:
.
(i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived;
of and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
28. rt Consequently, in view of the detailed discussion made herein above, judgment passed by the learned Appellate Court is quashed and set-aside. Accused is acquitted of the charges framed against him. Bail bonds if any, are ordered to be discharged. Petition stands disposed of along with pending applications, if any.
12th July, 2016 (Sandeep Sharma),
manjit Judge.
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