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2013 DIGILAW 578 (JHR)

Raju Mahato v. State of Jharkhand

2013-05-02

H.C.MISHRA

body2013
JUDGMENT : Heard learned counsel for the informant petitioner and learned A.P.P. for the State. 2. The petitioner is aggrieved by Judgment dated 27th September 2012 passed by the learned Addl. Sessions Judge-V, Dhanbad, in Cr. Appeal No. 35 of 2012, whereby the appeal filed against the Judgment of conviction and Order of sentence dated 21st December 2011 passed by Sri Manoj Chandra Jha, learned Judicial Magistrate 1st Class, Dhanbad, in G.R. No. 295 of 2008 / T.R. No. 214 of 2011 arising out of Bhagmara P.S. Case no. 28 of 2008, has been allowed by the learned Appellate Court below, setting aside the conviction and sentence of the accused-opposite parties Nos. 2 to 3. 3. From perusal of the Judgments passed by both the Courts below, it is apparent that the accused-opposite parties had put proposal before the informant and asked him to arrange funds for erection of towers of BSNL and TATA Indcom and promised the informant and his friends good returns. It is alleged that money was collected and given to the accused persons, but the tower was not erected. When the informant and his friends, who had advanced heavy amount of money to the accused persons, demanded back the money, cheques were issued by the accused persons in their favour, which were presented in the Bank for encashment, but they bounced. With these allegations, police case was instituted on the basis of the information given by the informant, for the offences under Sections 406, 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. After investigation, the police submitted charge sheet for the said offences and charges were also framed against the accused-opposite parties for the same, and they were put to trial. It appears that in course of trial, nine witnesses were examined by the prosecution. All of them, supported the prosecution case that money was taken from the informant and the other witnesses by the accused persons, but the towers were not erected and when the money was demanded back, cheques were issued in their favour, which bounced. 4. From the Judgment of the Trial Court, it appears that no cheque was seized by the Investigating Officer nor produced by the prosecution and even the dishonour of the alleged cheques were not proved by the prosecution. 4. From the Judgment of the Trial Court, it appears that no cheque was seized by the Investigating Officer nor produced by the prosecution and even the dishonour of the alleged cheques were not proved by the prosecution. As the main ingredients for the offence under Section 138 of the Negotiable Instruments Act could not be proved, the accused-opposite parties were acquitted for the said offence. On the question of entrustment of money to the accused persons, the Court below found that the prosecution had failed to prove the entrustment of money to the accused persons and accordingly, acquitted them for the offence under Section 406 of the Indian Penal Code also, but finding that ingredients of cheating was made out, the accused opposite parties were convicted for the offence under Section 420 of the Indian Penal Code and sentenced for the same. 5. The appeal was filed against the said order by the accused persons and the Appellate Court below, taking into consideration the facts that there was only oral evidence regarding giving the cash money to the accused persons and there was no receipt at all issued by the appellants to the informant or any other aggrieved witness, as also that the accused persons were acquitted for the offence under Section 406 of the Indian Penal Code, the Appellate Court below found that there was no reason for conviction the appellants for the offence under Section 420 of the Indian Penal Code, and has set aside the conviction and sentence passed by the Trial Court. 6. Learned counsel for the informant-petitioner has submitted that the impugned Judgment passed by the Appellate Court below is absolutely illegal, inasmuch as, the witnesses have consistently proved the fact that they had collected the money for giving the same to the accused persons for erection of the towers, but the towers were not erected. 6. Learned counsel for the informant-petitioner has submitted that the impugned Judgment passed by the Appellate Court below is absolutely illegal, inasmuch as, the witnesses have consistently proved the fact that they had collected the money for giving the same to the accused persons for erection of the towers, but the towers were not erected. Learned counsel has further submitted that though the prosecution failed to prove any document in support of the fact that money was given to the accused persons and the cheques issued by the accused persons could not be proved, as the Investigating Officer did not seize the same in course of investigation, but it has been submitted that merely because, there was some defect in the investigation of the case, the evidences of witnesses that they had entrusted the money to the accused persons could not be brushed out and the accused-opposite parties were rightly convicted for the offence under Section 420 of the Indian Penal Code by the Trial Court, which should have been maintained by the Appellate Court below also. 7. After having learned counsel for the petitioner and upon going through the impugned Judgment, I find that the Appellate Court below has discussed the evidence on record and has found that there no document was proved to show that any money was entrusted to the accused persons. There is heavy transaction of money and the learned Appellate Court below has found, and rightly so, that in absence of any documentary evidence in this regard, only oral evidence could not have been relied upon. I also find force in the reasoning given by the learned Appellate Court below that when the offence under Section 406 of the Indian Penal Code could not be proved by the prosecution, there was no reason for convicting the accused persons for the offence under Section 420 of the Indian Penal Code on the same very allegation. 8. In the facts of the case, I do not find any illegality and/or irregularity in the impugned Judgment passed by the Appellate Court below worth interference in the revisional jurisdiction. There is no merit in this revision application and the same is, accordingly, dismissed. Accordingly dismissed.