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Madhya Pradesh High Court · body

2019 DIGILAW 17 (MP)

Rajesh Mandore v. State of M. P.

2019-01-03

VANDANA KASREKAR

body2019
JUDGMENT 1. The appeal preferred under section 374 of the Code of Criminal Procedure, 1973 (for short 'the Code') has been filed by the appellant against the judgment dated 25.3.2014, passed by the Additional Sessions Judge, Dewas, in Session Trial No. 193/2009, whereby, convicting the appellant - Rajesh Mandore s/o Munnalal @ Munna Laal under sections 467, 468, 471 read with section 120B of IPC and sentenced to 5 years Rigorous Imprisonment(under each section) with fine of Rs. 5,00,000/- and, in lieu of payment of fine to undergo 2 years Rigorous Imprisonment; for offence under section 420 read with section 120(B) of IPC, sentenced to 6 years RI with fine of Rs. 5,00,000/- and, in lieu of payment of fine, to undergo further Rigorous Imprisonment of 2 years. 2. The prosecution story, briefly stated, is that between 5.6.2008 to 1.8.2008, all the accused persons have committed cheating and were involved in Criminal conspiracy by creati an NGO namely "Jan Jati Vikas, Krushi, Vanya Sanrakshan Pariyojna." The accused have purported themselves to be office bearers, coordinator and offices of a scheme and have prepared countrified seals and letter heads. The accused person have opened an account bearing account No. 63026338146 with the State Bank of Indore, Branch Mahidpur, District Ujjain on the name of the so called society and accused No. 2 being officer has issued authorization letter for operation of the Bank account of the said NGO on the name of coordinator Rajesh Mandore. It was further alleged that on different occasions few countrified credit advises were received by the Mahidpur Branch, said to be issued by the State Bank of Indore, Marwadi Road, Bhopal Branch which were deposited in the account of the said NGO. It is also the story of the prosecution that accused persons through Rajesh Mandore have, on different occasions, withdrawn a total sum of Rs. 36,75,000/- thereby indulged themselves for committing offences under sections 467 read with section 120(b), 468 read with section 120(b), 471 read with section 120(b) and 420 read with section 120(b) of IPC. 3. It is also story of the prosecution that accused Prabhat @ Kuldeep Singh being Pariyojna Adhikari has issued authorization letter in the name of present appellant Rajesh Mandore for operation of the Bank account and after opening of the account in the State Bank, a cheque book was also issued to the accused. 3. It is also story of the prosecution that accused Prabhat @ Kuldeep Singh being Pariyojna Adhikari has issued authorization letter in the name of present appellant Rajesh Mandore for operation of the Bank account and after opening of the account in the State Bank, a cheque book was also issued to the accused. The State Bank of Indore, Branch Mahidpur had received four credit advises which were counter fitted. These credit advises were received from Marwadi Road Branch Bhopal and were deposited in the account of the so-called "Jan Jati Vikas, Krushi, Vanya Sanrakshan Pariyojna. 4. On 9.8.2008 the Branch Manager Mr. Ravindra Solanki had lodged a written complaint with the Police Station - Mahidpur, District-Ujjain and the police have registered an offence bearing No. 301/2008 against the present appellant and Prabhat @ Kuldeep Singh. Thereafter, the investigation set into motion and document were seized from the accused persons and they had been interrogated. The prosecution has examined 20 witness. 5. The learned trial Court vide its judgment dated 25.3.2014 has found appellants guilty on the ground that four credit advises (Exhibits P-4, P-5 P-11 and P-12) were forged documents which were deposited in the bank account of "Jan Jati Vikas, Krushi, Vanya Sanrakshan Pariyojna". The amount deposited in the said account was withdrawn by the accused persons thereby committing criminal conspiracy against the bank. The learned trial Court although has discharged one accused Balvant Singh @ Ravi Gupta, but has found the present appellant guilty and convicted him under sections 467 read with section 120(b), 468 read with section 120(b), 471 read with section 120(b) and 420 read with section 120(b) of the IPC and sentenced him as indicated above. Being aggrieved by the order passed by the learned Session Judge dated 25.3.2014, the appellant has filed the present appeal. 6. Learned counsel for the appellant has placed reliance on the decision of Hon'ble the apex Court in Shantilal v. State of M.P., 2008 (1) JLJ 362 = (2008) 1 SCC (Cri) and has submitted that the appellant being a poor villager, having no capacity to pay the fine amount of Rs. 10.00 lac, therefore, default imprisonment that has been imposed against him may be reasonably reduced. 10.00 lac, therefore, default imprisonment that has been imposed against him may be reasonably reduced. Learned counsel for the appellant has candidly submitted that since the appellant has already completed substantive jail sentence, therefore, he does not wish to challenge the finding of conviction recorded against him. 7. Per contra, the learned counsel for the respondent submits that this Court may pass an appropriate order looking to the facts and circumstances of the case. 8. The apex Court in Paras - 26 and 27 of the judgment of Shantilal (supra), has held as under : 22. Benson, J. observed that the question was whether the award of a weeks imprisonment in default of payment of fine was legal. His Lordship considered the relevant provisions of IPC and stated; The question is whether the award of a weeks imprisonment in default of payment of the fine is legal, or whether the term of imprisonment in default is limited by section 65, Indian Penal Code, to one-fourth of the term (eight days) of imprisonment awardable for the offence under section 3 of Act III of 1889, i.e., to two days in the present case. Section 67, Indian Penal Code, has obviously no application to the case. It refers solely to the cases in which the offence is punishable with fine only. The present case is punishable with imprisonment or with fine at the option of the Magistrate, though not with both. section 65, Indian Penal Code, however, in my opinion, is applicable to such a sentence. The words punishable with imprisonment as well as fine in that section must be understood in the same sense as those words bear in section 64. The wording of section 64, it must be admitted, is not happy, but I am of opinion that the Legislature intended by it to provide for the award of imprisonment in default of payment of fine in all cases in which fine can be imposed. Those cases the section divides into three classes, viz., offences (1) punishable with imprisonment as well as fine, (2) punishable with imprisonment and fine and (3) punishable with fine only. Those cases the section divides into three classes, viz., offences (1) punishable with imprisonment as well as fine, (2) punishable with imprisonment and fine and (3) punishable with fine only. The first of these classes in my opinion includes two classes, viz., (a) offences like the present punishable with imprisonment or fine in the alternative, and (b) offences punishable, as most of those under the Indian Penal Code are, with imprisonment, or fine, or both, cumulatively. Grammatically it would seem also to include the second class, viz., offences punishable with imprisonment and fine, but this class is separately mentioned, probably because reference was intended to cases in which a substantive sentence of imprisonment must be awarded, the fine, if any, being only in addition thereto. The Legislature, by section 64, having given the general power to impose imprisonment in default of payment of fine, then proceeded to lay down limits to that power. section 65 limited the power in the first class of cases, section 67 in the third class. If the second class is, as I think it is, included in the first, then section 65 applies to it also; but, in any case, section 33, Criminal Procedure Code, imposes the same limit in unmistakable terms. It seems to me unreasonable to suppose that the Legislature did not intend to include cases like the present in the first class since the result would be that, in such cases alone, there would be no limit save that of the general power of a Magistrate, and a first-class Magistrate in a case like the present could award two years rigorous imprisonment in default of payment of a petty fine, though in all other classes of cases his power is strictly limited. (Emphasis supplied) 23. In Sukhdeo Singh v. Calcutta Corporation, AIR 1953 Cal 41 , A was convicted by the Municipal Magistrate for keeping a buffalo within the municipal limit without the prior permission of the Municipal Board. He was, therefore fined Rs. 15 and in default, to suffer simple imprisonment for one week. It was contended by A that in lieu of fine, the Magistrate could not have passed an order of sentence of imprisonment as no such power had been given to him under the Calcutta Municipal Act, 1923 [Act III of 1923]. He was, therefore fined Rs. 15 and in default, to suffer simple imprisonment for one week. It was contended by A that in lieu of fine, the Magistrate could not have passed an order of sentence of imprisonment as no such power had been given to him under the Calcutta Municipal Act, 1923 [Act III of 1923]. The Court, however, after considering sections 40, 41, 42 and 64 to 67, IPC came to the conclusion that the learned Magistrate could order sentence of imprisonment in lieu of fine by virtue of the said provisions. 9. As regards sentence, after considering the entire evidence on record and in view of the plea raised by the learned counsel for the appellant and the law laid down by Hon'ble the apex Court in the case of Shantilal (supra) and further taking into consideration the facts that appellant being a poor person is not in a position to pay fine amount, it would be appropriate to reasonably reduce the default imprisonment imposed against him. 10. In view of the foregoing, the appeal filed by appellant - Rajesh Mandore is hereby allowed in part. The conviction recorded by the trial Court is upheld. Since the appellant has already completed substantive jail sentence, therefore, the order of payment of fine of Rs. 5,00,000/- and, in default of payment of fine, the appellant shall undergo RI of 2 years on each count (i.e.,total period of 8 years), out of which he has undergone one year, is reduced to 3 years RI and the same is hereby upheld. Thereafter, the appellant shall be set at liberty forthwith, if not required to be detained in any other case.