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1999 DIGILAW 649 (PAT)

Md. Ataur Rahman v. State Of Bihar

1999-07-27

A.K.SINHA

body1999
Judgment A.K.Sinha, J. 1. This revision has been directed against the judgment dated 5.1.1993 passed in Cr. Appeal No.83 of 1991/T.R. No. 6 of 1992, whereby and whereunder the IVthe Addl. Judicial Commissioner, Ranchi, upheld the judgment and order of conviction and sentenced passed by Sri B.K. Singh, Judicial Magistrate, Ist Class, Ranchi, in G.R. No. 1743 of 1987, convicting the petitioner for the offence under Section 420 and 406 of the Indian Penal Code and sentencing him to undergo Rigorous Imprisonment for three years. 2. The relevant facts concerning this revision are that, the petitioner started one Scheme under the name and style of M/s. Kiran Taj Enterprises having registration No. R.S. 14117 since the year, 1982. The informant opened a pass-book in the said Scheme bearing No. B-44 and he deposited Rs. 13,867/-and besides this about 150 other persons had also opened pass-books under the said Scheme and deposited money. The Scheme of the petitioner was closed since February, 1987 and, thereafter, the informant met the petitioner, who avoided to make payment of the amount deposited by him on some pretext or the others and did not pay anything to him till 15.6.1987. It is alleged that all the per-sons, who had opened their pass-books under the said Scheme, went to the office of the petitioner to demand the money deposited by them. Whereupon the petitioner gave assurance that he would pay back the money by 30.6.1987 and when the informant went to the office of the petitioner he learnt that the petitioner had fled away and his family members did not say as to where he had gone. On the basis of the written report of the informant a case under Sections 406 and 420 of the Indian Penal Code was instituted against the petitioner and charge-sheet was also submitted by the police under the aforesaid counts, on the basis of which cognizance was taken in this case and the petitioner was put on trial. 3. The learned Magistrate framed charges under Sections 420 and 406 of the Indian Penal Code against the petitioner and convicted him under both the counts. After having found him guilty, the petitioner was awarded a composite sentence of three years, R.I. for both the counts. 4. 3. The learned Magistrate framed charges under Sections 420 and 406 of the Indian Penal Code against the petitioner and convicted him under both the counts. After having found him guilty, the petitioner was awarded a composite sentence of three years, R.I. for both the counts. 4. The learned Counsel appearing for the petitioner submitted that the conviction of the petitioner under Sections 406 and 420 of the Indian Penal Code cannot be sustained and it is a case of civil liability and the informant should have filed civil suit for realisation of the alleged amount deposited by him. It was next submitted that there is nothing in the FIR or in the evidence of the PWs, which may show that the informant had deposited the amount under any trust, breach of which can attract Section 406 of the Indian Penal Code, as such, the conviction of he petitioner under Section 406 of the Indian Penal Code cannot be sustained. Similarly it was argued that the petitioner cannot be held liable for committing offence under Section 420 of the Indian Penal Code, because, he had neither induced the informant to make deposit in the Scheme run by the petitioner nor there is anything to show that the petitioner had any dishonest intention to misappropriate the amount deposited with him which is evident from the fact that the petitioner had called the informant to make payment of the amount on 15.6.1987 and he committed before the depositors to make payment of the amount deposited by different depositors, but the amount could not be paid because the money was lying in fixed deposit. The learned Counsel further submitted that the contents of the settlement arrived at between the petitioner and the depositors, which have been marked as Ext. Y, for identification, on which the petitioner is said to have put his signature. Exts. 1 series will got to show that the petitioner had no intention to misappropriate the amount of the depositors nor he had any dishonest intention from the very beginning to cheat the depositors for his wrongful gain. Y, for identification, on which the petitioner is said to have put his signature. Exts. 1 series will got to show that the petitioner had no intention to misappropriate the amount of the depositors nor he had any dishonest intention from the very beginning to cheat the depositors for his wrongful gain. My attention was invited to the statements made by PW 1, who is the informant of the case, who stated in paragraph 7 and 8 of his evidence that he know that he could got back his money by filing a civil suit, but he had not filed any civil suit and he also admitted that Md. Ataur Rahman (petitioner) runs a betel shop, has got a house and he had not fled away and was till running a betel shop. It was further pointed out that PW 2 Md. Taslim Ibrahim admitted in his cross-examination that some persons had received car and fridge under the Scheme. It was, therefore, submitted that there was no dishonest intention on the part of the petitioner, in view of the above statements of PW 2, inasmuch, as many persons got car, fridge etc. through the Scheme. It was also submitted that there is no evidence to the effect that the petitioner had induced the informant to deposit the amount nor there is any evidence that the. amount was misap-propriated by the petitioner and in the absence of these essential ingrediences the conviction of the petitioner under Section 420 of the Indian Penal Code cannot be sustained. 5. Apart from the submissions referred to above, it would be found that there are certain lacuna in the prosecution, inasmuch as, the prosecution has not brought on record as to what was the terms and conditions of the Scheme, under which the informant became a member and started depositing the money. There is also no cogent evidence, which may show that the money deposited by the informant was received by the petitioner. The above entries made in the pass book, marked as Ext-Y for identification, have not been properly proved. Therefore, the prosecution has not proved to the hilt that the informant had actually deposited a sum of Rs. 13,867/- with the petitioner. There is contradiction also on this point, inasmuch as, in the FIR it is alleged that the informant had deposited Rs. Therefore, the prosecution has not proved to the hilt that the informant had actually deposited a sum of Rs. 13,867/- with the petitioner. There is contradiction also on this point, inasmuch as, in the FIR it is alleged that the informant had deposited Rs. 13,867/- but in paragraph 1 of his evidence PW 1 has stated that he deposited Rs. 13,000/- only and that too has not been proved to the hilt. The other allegation that the petitioner fled away and became traceless, has also been contradicted by PW 1 himself, who admitted that the petitioner lives in his house and is running a betel shop. The evidence of PW 1 shows that the petitioner sent a letter, promissing to refund back the amount. Therefore, it cannot be said that the petitioner had actually any dishonest intention. There is absolutely no evidence to show that the amount was received by the petitioner or he misappropriated the same. It further appears that, although, there is allegation that the petitioner had swallowed the amount of 150 persons, but those persons have not come forward to support the allegation. It appears that PW 2 Md. Salim had not made any statement under Section 161, Cr PC before the police, but the learned Court below relied upon the evidence, which is manifestly illegal. PW 3 Md. Yunus has not whispered a word against the petitioner and has admitted that he became a member in the Scheme at the instance of one Babu on 1.7.1986 and used to deposit 7.50 p, per day for getting T.V. He has also not stated that he had paid the amount to the petitioner and he has admitted that he used to pay the money to Babu. PW 4, Anand Kumar Sharma, is a formal witness, who has proved the FIR. The I.O. of this case has not been examined and no satisfactory explanation has been given for his non-examination. 6. It appears that there is some ir-regularity in framing the charges also and proper questions were not put to the petitioner while recording his statement under Section 313 of the Code of Criminal Procedure. 7. The I.O. of this case has not been examined and no satisfactory explanation has been given for his non-examination. 6. It appears that there is some ir-regularity in framing the charges also and proper questions were not put to the petitioner while recording his statement under Section 313 of the Code of Criminal Procedure. 7. In view of the above discussions and the facts and circumstances, I am of the view that the charges under Sections 406/420 of the Indian Penal Code have not been proved by the prosecution beyond all reasonable doubts and the learned Court below as well as the appellate Court was not justified in holding the petitioner guilty for committing offence under Sections 406 and 420 of the Indian Penal Code. As such, the order of conviction and sentence recorded by both the courts below are set aside. 8. In the result, this revision is allowed.