THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL REVISION CASE NO.833 OF 2011
O R D E R:
This Criminal Revision Case is filed by the petitioner/accused under Sections 397 and 401 of Criminal Procedure Code (for short 'Cr.P.C.') aggrieved by the Judgment dated 30.03.2011 passed in Criminal Appeal No.3 of 2010 on the file of the learned Principal Sessions Judge, Adilabad, (for short 'Appellate Court') preferred against the Judgment dated 02.01.2010 passed in C.C.No.267 of 2008 on the file of the learned I Additional Judicial Magistrate of First Class, Mancherial (for short 'trial Court).
02. Heard Sri H.Venugopal, learned Senior Counsel representing Sri N.Mukunda Reddy, learned counsel appearing for the petitioner and Sri Vizarath Ali, learned Assistant Public Prosecutor representing the learned Public Prosecutor for the State and perused the record.
03. The main accusation against the petitioner/accused is that the petitioner was carrying on chit business and obtained various amounts from the general public and avoided to pay the said amounts to the subscribers. The complaint was lodged by 2 PW1 referring several persons' names who have lent money to the petitioner/accused. Upon the complaint, a crime for the offence under Section 420 of Indian Penal Code (for short 'IPC') and Section 52 of the Andhra Pradesh Chit Fund Act (for short 'the Act') was registered and the criminal law was set in motion.
04. The trial Court, upon considering the entire material available on record in the form of evidence of PW1 to PW13, Exs.P1 to P5 and Ex.D1 to D5 and hearing both sides, found the petitioner guilty for the above offences and accordingly, convicted and sentenced him to undergo imprisonment for one year and to a pay a fine of Rs.10,000/-, in default to suffer simple imprisonment for one month for the offence under Section 420 of IPC and further sentenced to undergo simple imprisonment for a period of six months and pay fine of Rs.500/- in default to suffer simple imprisonment for a period of one month for the offence under Section 52 of the Act. On preferring appeal, the Appellate Court vide Judgment dated 30.03.2011 passed in Criminal Appeal No.3 of 2010 confirmed the conviction and sentence passed by the trial Court in respect of Section 420 of IPC and set aside the conviction and sentence passed by the trial Court in respect of Section 52 of the Act.
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05. Aggrieved by the conviction and sentence passed by the Courts below, the petitioner filed the present criminal revision case alleging that the prosecution case lacks evidence and that except oral evidence of PW1 to PW8 and PW10 to PW13 there is no documentary evidence that the accused borrowed the amount with a promise to pay the same with interest. On the other hand, the version of the prosecution is that the petitioner with dishonest intention cheated several persons by collecting amounts and hence, he is liable to be punished under Section 420 of IPC for the acts committed by him.
06. Learned Senior Counsel appearing on behalf of the petitioner relied upon a decision rendered by the Hon'ble Supreme Court in a case between Hridaya Ranjan Prasad Verma and others v. State of Bihar and another 1 wherein it was held that:
"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 to 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 1 (2000) 4 Supreme Court Cases 168 4 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."
07. Learned Senior Counsel appearing for the petitioner also relied upon a decision rendered by the Hon'ble Supreme Court in a case between N. Raghavender v. State of Andhra Pradesh, CBI 2 wherein it was held that:
"54. We may outrightly note that so far as this allegation is concerned, there is no dispute as to the factum of 'entrustment'. The Appellant being the Branch Manager was in-charge and responsible for the deposits made by the Bank customers. The prosecution in regard to this set of transaction, has put forth a five-pronged claim. First, the Appellant along with co-accused conspired to cause wrongful loss to the Bank. Second, the Appellant permitted the use of three loose cheques. Third, the cheques were passed by the Appellant even though there were insufficient funds in account No. 282. Fourth that the relevant entries regarding this transaction were intentionally not recorded in the ledger book- Ex P23, and fifth, that the amount pertaining to these cheques was collected by the Appellant. This according to the Prosecution, and as held by the High Court, was done to extend an undue benefit to the brother-in-law of the Appellant, i.e., Accused No.3."
08. As seen from the Judgments of the trial Court as well as Appellate Court, PW1 is the de-facto complainant who is 2 Criminal Appeal No.5 of 2010 decided on 13.12.2021 5 working along with accused in Singareni Collieries, believed the accused and paid Rs.80,000/- towards chits and the petitioner failed to repay the same. PW2 gave hand loan of Rs.1,00,000/- to the petitioner for interest at the rate of Rs.1/- and the petitioner failed to repay the same. PW3 is a chit member and paid an amount of Rs.2,000/- per month towards chit amount for nearly 17 months and petitioner also took loan of Rs.35,000/- from the daughter of PW3 and thereafter, the petitioner failed to repay the same. PW4 gave Rs.1,90,000/- to the petitioner towards loan and the petitioner failed to repay the same. PW5 gave Rs.1,40,000/- as hand loan to the petitioner and the petitioner refused repay the said loan. PW6 gave Rs.1,00,000/- to the petitioner towards loan and failed to repay the same. PW7 gave Rs.1,40,000/- as loan to the petitioner and petitioner failed to repay the same. PW8 is also subscriber of chit and paid Rs.31,000/- towards loan and the accused failed to repay the same. PW9 is the Investigating Officer who deposed with regard to the investigation of the case. PW10 gave Rs.50,000/- to the accused as handloan and accused executed promissory note to that effect but failed to repay the said amount. PW11 gave Rs.50,000/- towards handloan to the accused and the accused had paid Rs.1,000/- per month towards interest for 8 months 6 and failed to repay the remaining amount. PW12 is the chit member and paid Rs.80,000/- in instalments and accused stopped the chits suddenly and did not return the said amounts. PW13 gave Rs.50,000/- towards handloan and also paid Rs.2,000/- per month for 18 months towards chit fund and the accused repaid Rs.20,000/- and promised to repay the remaining amount but failed to do so. During the course of cross- examination of the above witnesses on behalf of the petitioner did not gain any support to defeat the case of the prosecution.
09. From the evidence of the above witnesses, the conduct of the accused attracts the offence under Section 420 of IPC as he induced them to give money towards hand loans and to subscribe for the chits run by him. Furthermore, the accused also executed promissory notes to make them believe that he would repay the amounts. The conduct of evasive nature in repayment of loans clearly shows his deceptive nature and dishonest intention right from the inception. Therefore, The above decisions relied upon by the learned Senior Counsel does not apply to the present case on hand as the accused had dishonest and ill intention at the time of making promise i.e., from the inception.
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10. In the light of the above discussion, it is clear that the petitioner the above said acts of the petitioner clearly attracted the ingredients of Section 420 of IPC and accordingly, both the Courts below have rightly convicted the petitioner. The findings of both the Courts below are made on careful and meticulous scrutiny of the entire material available on record and the same does not require any interference by this Court as there are no illegalities or irregularities in the said findings.
11. So far as the sentence of imprisonment imposed by the trial Court and confirmed by the Appellate Court is concerned, since from the date of inception of litigation, the petitioner/accused is roaming around the Courts by facing trauma and mental agony and in that view of the matter, this Court takes a lenient view by reducing the sentence of imprisonment to that of period already undergone by the petitioner/accused. However, the fine amount imposed by the trial Court remains unaltered.
12. Accordingly, except the above modification in respect of period of sentence of imprisonment, this Criminal Revision Case in all other aspects is dismissed. The bail bonds of the 8 petitioner shall stand cancelled. There shall be no order as to costs.
_______________________ E.V. VENUGOPAL, J Dated: 09-NOV-2023 KHRM