Jharkhand High Court
Parash Nath Prasad Aged About 72 Years vs The State Of Jharkhand on 19 April, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Acquittal Appeal No. 53 of 2023
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Parash Nath Prasad aged about 72 years, son of late Lakhi Prasad, at present residing at 7 Satyam Enclave Road No. 7, Extension, P.O. Sonari, P.S. Sonari, Town Jamshedpur, District -East Singhbhum (Jharkhand) ... ... Appellant Versus
1.The State of Jharkhand.
2.Manish Kumar aged about 36 years, son of Sri Murlidharn Prasad, Resident of village Dhurwa, P.O. Dhurwa, P.S. Dhurwa, District Ranchi (Jharkhand) ... ... Opposite Parties
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
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For the Appellant : Mr. Mahesh Tewari, Advocate
: Mr. Ritesh Kumar Mahato, Advocate
For the State : Mr. Tarun Kumar, A.P.P.
For the O.P. No. 2 : Mr. Indrajit Sinha, Advocate
: Mr. Akhouri Awinash Kumar, Advocate
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th
Order No. 11/ Dated: 19 April, 2024
Against the judgment dated 18th June 2019 passed in criminal appeal no.108 of 2019, this Acquittal Appeal has been filed by Parash Nath Prasad on whose written complain Bistupur P.S. case no. 185 of 2009 was registered against Rakesh Ranjan Singh, Manish Kumar, Sanjay Kumar Singh, Rohit Kohli and Nirmal Jain for committing the offence under sections 419, 420, 409, 467, 468, 471, 120-B of the Indian Penal Code.
2. This Acquittal Appeal is primarily founded on the ground that the lower appellate Court wrongly appreciated the evidence tendered in T. R. No. 303 of 2019 corresponding to G.R. No. 1500 of 2009 and thereby came to an erroneous conclusion that the judgment in the said trial case is flawed in law.
3. In T.R. No. 303 of 2019, Manish Kumar faced the trial under sections 409, 419, 420, 467, 468, 471, 120-B of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 10,000/- under section 420 of the Indian Penal Code; and, in default of payment of fine to undergo rigorous imprisonment for six months. He suffered a similar order of sentence under section 120-B of the Indian Penal Code.
4. In the trial, eight witnesses were examined to support the aforesaid charges framed against Manish Kumar by an order dated 12th August 2013. As per the judgment in T.R. No. 303 of 2019, the prosecution witnesses fully supported the charges against the opposite party for committing the offence under sections 420 and 120-B of the Indian Penal Code.
5. The trial Judge on analysis of the materials laid during the trial came to the following findings:
"26. On detailed analysis of above scrutinized version of the prosecution witnesses and above discussions, it is clear that accused Manish Kumar was hand in glove with co-accused Rakesh Ranjan Singh, the then Relationship Manager of India Infoline Limited in unauthorized transfer of shares from Demat account of Sandhya Prasad and informant Parasnath Prasad in ICICI bank to the Demat account of Rakesh Ranjan Singh in Motilal Oswal Securities Limited vide Demat Account no. 12010922600197814. The act and conduct of accused Manish Kumar who was the then Branch Manager of India Infoline Limited, as stated by the witnesses clearly shows that both Manish Kumar and Rakesh Ranjan Singh had prior meeting of mind of commit the offence of cheating. The act of asking the informant and his wife to sign blank D I slips for the purpose of transfer and stopping the informant in filling the form himself by saying that overwriting may occur which can stop the transfer and the fact that later on shares were unauthorisedly transferred to the account of Rakesh Ranjan Singh clearly shows that both had hatched a conspiracy to cheat the accused. As per rule forms should be filled by the customer and blank signed forms should not have been taken by the accused. This act of his and his later conducts for not taking any positive steps for restoration of the shares of informant and his wife also clearly shows his complicity in commission of cheating. From the evidence on the record I find that instead of returning back the shares to the informant which was his prime duty he was negotiating on behalf of Rakesh Ranjan Singh in whose Demat account shares were unauthorisedly transferred. If accused was not in conspiracy with Rakesh Ranjan Singh he should have done positive steps for restoration of the shares and should have made criminal complaint against him. On the basis of available evidence on the record and the surrounding circumstances I find that there was an agreement between Manish Kumar the present accused and Rakesh Ranjan Singh the absconding accused to commit the offence of cheating and as stated above he did several illegal acts in furtherance of commission of the offence of cheating. Hence I find him guilty for the offence u/s 120B IPC.
27. The offence u/s 120B of IPC is a separate and distinct offence. Here, I find that from the available evidence on the record and above discussions offence u/s 420 of IPC is also made out against the accused apart from offence of conspiracy u/s 120B of IPC for commission of the offence of cheating. On the basis of the testimonies of the prosecution witnesses and the documents on the record it is crystal clear that Manish Kumar also committed offence u/s 420 of IPC. No doubt, prosecution has failed to prove D I slips bearing signatures of Sandhya Prasad and Parasnath Prasad 2 Acquittal Appeal No. 53 of 2023 a forged document because as per allegation other details of D I slips particularly the transferee account was filled up by the accused persons i.e. Manish Kumar and Rakesh Ranjan Singh rather it should have been filled up by the informant or his wife but Manish Kumar stopped informant and his from filling them up. The said D I slips are present on the record as annexures of the FIR but not proved. In view of above I find that prosecution has successfully proved the charges u/s 420 of IPC also against the above named accused. Hence, he is found guilty for the offences u/s 420 of IPC also.
28. As far as charge u/s 409 of IPC is concerned, I find that there is no evidence on the record to prove the fact that informant at any point of time had entrusted any share or any valuable security to above named accused and for proving the offence u/s 409 of IPC entrustment of property and misappropriation of the said property by the accused is must. Here, I find that evidence of misappropriation of informant and his wife's share is there but there was no entrustment of those shares to the accused by the informant or his wife. Hence, accused cannot be held guilty for the offence u/s 409 of IPC.
29. Similarly, offence u/s 419 of IPC is also not made out against the accused because there is no evidence on the record against the accused from which it can be construed that accused cheated the informant by impersonation. No doubt, the blank DI slips were either filled by the accused Manish Kumar or Rakesh Ranjan Singh but filling of DI slips does not impersonate, rather it can be said to be a forged document. Therefore, in view of the available evidence on record accused is found not guilty for the offence u/s 419 of IPC.
30. As far as offence u/s 467,468,471 of IPC are concerned, I find that to prove these charges prosecution must prove that some document was forged by the accused or he constructed some forged documents or made a false document as defined under section 464 of IPC or committed forgery, because no such document has been proved by the prosecution which can be said to be a forged documents. Therefore in paucity of evidence regarding forged documents, accused cannot be held guilty for the offences u/s 467,468,471 of IPC.
31. In view of the above findings, discussions and analysis I come to the conclusion that prosecution has succeeded in proving the charges u/s 420 and 120B of IPC against the accused. But at the same time it has failed to prove the charges u/s 409,419,467,468,471 of IPC against the accused. Accordingly accused Manish Kumar is hereby convicted for the charges u/s 420 and 120B of IPC and his bails is hereby cancelled and he is taken in judicial custody."
6. The lower appellate Court came to the following findings:
"24. Coming into the factual matrix of the case admittedly not a single penny nor a single share has been transferred to the account of present appellant so what ever shares were transferred to the account of Rakesh Ranjan Singh who is absconding and against whom the cognizance of the offence was taken. The question which arises for adjudication is whether the present appellant had induced the accused to deliver any delivery instruction slip unfilled and only signed or not. If the delivery instruction slips were taken by the present appellant unfilled on his instruction and thereafter delivery instruction slips were handed over to the co-accused who is absconding then complicity of the present appellant can be taken note of. But if there is want of convincing evidence as to taking of the delivery instruction slip from the victim by the present appellant then the 3 Acquittal Appeal No. 53 of 2023 case neither U/s 420 nor 120B of the IPC will be made out. For this purpose it would be relevant to refer to the oral evidence which has come on the record. It is true that a couple of witnesses have stated that delivery instruction slip was taken by present appellant but the wife of the informant who is also a victim deposed in her evidence that the delivery instruction slip was handed over to co-accused Rakesh Ranjan Singh. Similar statement is there by PW3 who also says that the delivery instruction slip of ICICI bank was handed over to Rakesh Ranjan Singh. One additional question comes into picture as to who is Rakesh Ranjan singh, whether he was acting in his personal capacity or in his official capacity and similarly what is the status of present appellant Manish Kumar. Apparently neither Manish Kumar nor Rakesh Ranjan Singh was acting in their person capacity. Even it is assumed that Manish Kumar introduced rakesh Ranjan Singh then still he was under duty of introducing Rakesh Ranjan Singh to the customers as Manish Kumar was the branch manager and Rakesh Ranjan Singh was the relationship manager of India Infoline Ltd.. Under such circumstances for the smooth functioning of the business of India Infoline Ltd. the entire activities cannot be performed by a single person. Some part of the activities in course of business of India Infoline Ltd. was required to be performed by relationship manager and in this case evidence has come that prior to this transaction in relation to the shares in the Demat account with ICICI Bank there was successful share transfer from the Demat account from SBI to the Demat account of India Infoline Ltd. which was done by Rakesh Ranjan Singh showing previous acquaintance of the victim with Rakesh Ranjan Singh who also was not acting in his personal capacity rather they all were representing the company India Infoline Ltd. Unfortunately India Infoline Ltd. is not an accused in this case as all the accused persons against whom charge-sheet was submitted or who has faced trial and one who is absconding were all employees of India Infoline Ltd. and undoubtedly they can be held liable for the acts and omission if personal liability can be attributed to them but not for any official act which they were bound to do in discharge of their duty.
25. Coming back to the question as to whether delivery instruction slip was handed over to the appellant or to the co-accused Rakesh Ranjan Singh. Apart the oral evidence it would be important to refer to the document which is there on the record. One of them is annexure VI which is appended to the FIR. This is a letter signed by Sandhya Prasad and P.N. Prasad addressed to the Superintendent of Police, East Singhbhum. The first paragraph of the letter is required to be quoted which is as hereunder:-
"Dear Sir, we would like to state that Rakesh Ranjan Singh an employee of India Infoline Ltd. Bistupur, Jamshedpur has fraudulently transferred our shares to his own account instead of transferring it in our India Infoline Ltd. account and is doing trading since 20/04/2009. He is blackmailing us to grab the valuable scripts while transferring back to our account" In this letter there is no reference of the present appellant however this letter is not marked as exhibit. Annexure IX series which is the photo copy of the delivery instruction slip though has not been proved nor any evidence is there as to who was the scribe of this annexure IX series, whether it was the victim himself or whether it was the present appellant or whether it was the co-accused, no evidence in this regard is there but still since these documents are on the record appended to the FIR as annexure IX it would be important to mention that each of the document that is 9 delivery instruction slips of ICICI bank shows that the reason/purpose of transfer is mentioned as gift. It bears the seal and signature of the authorized person from ICICI bank. No explanation has been given as to why the delivery 4 Acquittal Appeal No. 53 of 2023 instruction slips/inter depository delivery instruction slips which were deposited with ICICI bank was handed over to the appellant or the co-accused that too in blank form when apparently the victim was not an uneducated person. The only reason assigned is the victim alleges that he was impressed upon that if any mistake occurs, transfer would not be affected and to avoid any mistake delivery instruction slip was left to the blank. On a perusal of the of the delivery instruction slip it transpire that it does not contain any such column where possibility of mistake is there as most of the columns was filled up in digits. Now one of the document which has been marked as Ext. is reply given by National Stock Exchange of India Infoline Ltd. Ltd in reference to complain against the dealer of the trading company i.e. M/s India Infoline Ltd.. The first part is required to be reiterated. "This is with reference to or complaint regarding fraudulent transfer of the shares by a dealer Rakesh Ranjan Singh who is trading member of M/s India Infoline Ltd." This complaint also does not state the involvement of the present appellant that it is the present appellant who had taken the delivery instruction slip for getting it transferred. Other documents which is there on the record which have been marked exhibits are the various complaints. Ext. 2 is the letter to NSDL. In this exhibits too there is no reference about the present appellant to be involved in the alleged illegal transfer of shares from ICICI Demat account to the personal Demat account of co-accused Rakesh Ranjan Singh. Another document i.e. Ext. 3 also bears a reference of illegal transfer of shares wherein it is stated that they had addressed to India Infoline Ltd. Bistupur branch to transfer his share from ICICI Demat to India Infoline Ltd. Demat which is fraudulently transferred to an unknown account and the letter which is marked as Ext. 4 is addressed to the present appellant with regard to the illegal transfer of shares wherein it is very categorically stated that the present appellant had introduced Rakesh Ranjan Singh as relationship manager and that Rakesh Ranjan Singh in his own handwriting filled up the delivery instruction slips and has got the share transferred to his own account and that Rakesh Ranjan Singh was absconding and was not traceable and thus, this letter is also not suggestive of complicity of the present appellant. Thus, primary link that the delivery instruction slip was handed over to the present appellant who in turn handed over the same to co-accused is also not established beyond shadows of doubt rather the oral evidence along with the documentary evidence does not conclusively state that the delivery instruction slips which were blank and signed by the victim was taken by the present appellant. Thus, there is absence of prima facie linkage to connect the present appellant with the co-accused Rakesh Ranjan Singh who had got the entire shares transferred in his personal account.
26. Now comes the second and most important aspect of the case that these delivery instruction slips itself has not been proved and brought on the record. This vital document has not been exhibited nor any expert opinion has been obtained as to who was the scribe of these delivery instruction slips. In the absence of any convincing evidence rather want of any evidence on this point no conclusion could have been arrived at that these delivery instruction slips were filled up by any of the accused leading to any conclusion that the appellant was involved in getting the shares transferred to the personal account of co-accused Rakesh Ranjan Singh. Hence, this is the vital absence in the link of chain of circumstances to bring home the charges against the present appellant but these two aspects of the case appears to have been ignored by the court below.
27. Motive at times became relevant more so in order to prove that accused appellant had any reason to do this act. Apparently as stated herein before 5 Acquittal Appeal No. 53 of 2023 that the appellant was/is not the beneficiary of the illegal transfer i.e. not a single share has been transferred to the benefit of the appellant or to the benefit of the India Infoline Ltd. What could have been the reason for the appellant joining hand with the co-accused Rakesh Ranjan Singh in getting those shares transferred in his personal account and then trading in those shares. There is no evidence in this regard and no investigation has been made by the police in this regard to even prima facie show that the present appellant is one of the beneficiary. Hence, there is also complete absence of any motive for illegal transfer the shares from ICICI bank Demat account to the personal Demat account of the co-accused Rakesh Ranjan Singh rather such act has caused to disrepute India Infoline Ltd. and the company has also lost brokerage charges in respect of the share worth Rs. 25 Lakhs. Hence this chain of circumstance through weak is still missing in the facts of the case.
28. Under the circumstances I find that it is difficult to come to the conclusion that the present appellant had conspired with the co-accused for illegally getting the share transferred from the Demat account of the victim/informant to the Demat account of the co-accused rather the evidence has come on record to show that efforts were done by the present appellant to return those shares and as it has come up in evidence that out of 36 shares 32 shares were transferred to the Demat account of the victim. Hence there is want of sufficient evidence to bring home charges U/s 120B of the IPC with regards to conspiracy with the co-accused who has been absconding.
29. Now, coming into the charges U/s 420 of the IPC inducing the person to open an account in the company where the accused was an employee cannot be considered to be illegally inducing as it is the part of business of such employees to impress upon prospective customers to open an account in their respective company hence if the benefits of India Infoline Ltd. was projected by the appellant the same cannot be considered to be inducing for the purpose of cheating. The second part of the inducement that it is this appellant who has induced the informant to deliver blank signed delivery instruction slip has not been proved beyond shadows of doubt and no reason has been assigned as to why this delivery instruction slip was handed over to an employee of India Infoline Ltd. which was required to be deposited with ICICI bank and was in fact deposited with ICICI bank as it appears there is annexure IX series of the FIR which bears the seal of ICICI bank hence there is absence of sufficient cause to show that delivery instruction slips were required to be handed over to the present appellant and there is absence of any proof to show that the delivery instruction slips were handed over the the present appellant. Considering these aspect of the case, I find that charges U/s 420 of the IPC against the present appellant was also not proved beyond shadows of reasonable doubt."
7. To challenge the judgment by the lower appellate Court, Mr. Mahesh Tewari, the learned counsel for the appellant refers to the statement made by the opposite party in his examination under section 313 of the Code of Criminal Procedure. The learned counsel would submit that the findings recorded by the lower appellate Court to disbelieve the case set up against the opposite party is palpably wrong and erroneous. To corroborate his submission, the learned counsel refers to the findings 6 Acquittal Appeal No. 53 of 2023 recorded in paragraph no. 14 in T.R. No. 303 of 2009 wherein the trial Judge recorded that in her statement before the Court the wife of the complainant stated that her husband was taken to the opposite party who was the Branch Manager. The said person induced her husband by saying that his Company would fetch more profit if he opens an account in India Infoline Limited company on payment of Rs. 555/- and then would get advices for selling the shares. As per PW 6, the opposite party no.2 said that the shares of only 8 to 10 companies are profitable and therefore shares of other companies held by her husband may be sold out by transferring the same to his company.
8. The lower appellate Court made a pertinent observation that the judgment of acquittal under sections 409, 419, 467, 468 and 471 of the Indian Penal Code was not put to challenge by the complainant. Before the lower appellate Court, the opposite party no. 2 had challenged the conviction under sections 420 and 120-B of the Indian Penal Code. The offence of criminal conspiracy envisages doing of an illegal act by more than one person or an illegal act by an unlawful means. Section 120-B of the Indian Penal code creates vicarious liability though it is an independent offence in itself. In order to establish the charge under section 120-B of the Indian Penal Code it is necessary to establish that there was an agreement between the parties for doing an unlawful act. The lower appellate Court has recorded that PW 3 stated in the Court that the delivery instruction slip of ICICI Bank was handed over to Rakesh Ranjan Singh. This is also a matter of record that the letter produced by the complainant appended with the First Information Report referred to Rakesh Ranjan Singh who fraudulently transferred the shares to his own account. According to the complainant, Rakesh Ranjan Singh was trying to blackmail him with greedy eyes on his valuable shares. No share was transferred to the account of opposite party no.2 nor did the prosecution could establish that he received any money from the complainant or his wife. On the contrary, this came on record that the shares were transferred in the account of Rakesh Ranjan Singh. On the top of it all, the instruction slip was not laid in evidence and India Infoline Limited was not made an accused. Now in a case where 7 Acquittal Appeal No. 53 of 2023 allegation of cheating is made with reference to documents but the trial Court acquitted the opposite party no. 2 of the charges under sections 409, 419, 467, 468 and 471 of the Indian Penal Code, the charge of conspiracy and cheating shall be substantially shaken.
9. Just to indicate, in "Hridaya Ranjan Prasad Verma v. State of Bihar" (2000) 4 SCC 168 the Hon'ble Supreme Court elucidated the law as regards cheating as under:
"13. Cheating is defined in Section 415 of the Code as:
"415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'.
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
The section requires--
(1) deception of any person;
(2)(a) fraudulently or dishonestly inducing that person
(i) to deliver any property to any person, or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the 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 transaction, 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 fraudulent or dishonest intention at the time 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."
8 Acquittal Appeal No. 53 of 2023
10. In "Chandrappa v. State of Karnataka" (2007) 4 SCC 415 the Hon'ble Supreme Court held that the judgment of acquittal reinforces the innocence of the accused and the High Court shall not exercise its powers unless it is shown that serious miscarriage of justice is occasioned; for compelling reasons only. In "Chandrappa" the Hon'ble Supreme Court held as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
11. For the foregoing reasons, this Court finds no ground to interfere with the judgment dated 18th June 2019 passed in Criminal Appeal No. 108 of 2019 and, accordingly, Acquittal Appeal No. 53 of 2023 is dismissed.
(Shree Chandrashekhar, A.C.J.) J.Minj/ Nishant 9 Acquittal Appeal No. 53 of 2023