Smt. Kalpana Gupta vs State Of U.P. And Anr.
2023 Latest Caselaw 1536 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 

 
Court No. - 13
 

 
Case :- APPLICATION U/S 378 No. - 262 of 2017
 
Applicant :- Smt. Kalpana Gupta
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Rajesh Kumar Srivastava,Praveen Singh
 
Counsel for Opposite Party :- Govt. Advocate,Bhaskar Prasad Pandey,Manoj Sahu,Sandeep Srivastava
 
And
 
Case :- APPLICATION U/S 378 No. - 261 of 2017
 
Applicant :- Smt. Kalpana Gupta
 
Opposite Party :- State Of U.P. And 4 Others
 
Counsel for Applicant :- Rajesh Kumar Srivastava,Praveen Singh,Ranjana Srivastava
 
Counsel for Opposite Party :- Govt. Advocate,Bhaskar Prasad Pandey,Makrand Prasad Verma,Nirankar Singh,Sandeep Srivastava
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

1. Heard Shri Rajesh Kumar Srivastava, learned counsel for the applicant/ appellant, Ms. Sonal Pandey, learned counsel for private respondent no.2 in application under Section 378 No. 262 of 2017 and for respondent no.2 and 5 in Application under Section 378 No. 261 of 2017 as well as learned AGA for the State and perused the record.

2. At the outset learned counsel for the applicant/ appellant submits that respondent no.3- Awadhesh Chandra Gupta and respondent no.4- Smt. Dhaneshwari Gupta had died during the pendency of the instant application/ appeal and the proceedings against them be abated.

3. Ms. Sonal Pandey, learned counsel appearing for respondents no. 2 to 5 in A, 378 No. 261 of 2017 does not dispute this fact, therefore the proceedings of application under Section 378 No. 261 of 2017 is abated so far as the respondent no.3- Awadesh Chandra Gupta and respondent no.4- Smt. Dhaneshwari Gupta are concerned.

4. Both above placed applications moved under Section 378(4) Cr.P.C. are connected with the same complaint case, whereby the accused persons / respondent nos.2 to 6 of Criminal Appeal No.262 of 2017 have been acquitted of all the charges and accused '' Santosh Kumar Gupta' has been acquitted of charge framed under Section 120B I.P.C. and convicted for offence under Section 406 I.P.C. and therefore for the sake of convenience both these applications are being disposed of by this common order.

5. Application under Section 378 No. 261 of 2017 as well as 262/2017 have been preferred by the complainant Smt. Kalpana Gupta requesting to grant special leave to appeal against the judgment and order dated 27.4.2017 passed by the Special Chief Judicial Magistrate, Lucknow in Complaint Case No. 9/2016, Smt. Kalpana Gupta Vs. Santosh Kumar Gupta and six others whereby only accused Santosh Kumar Gupta was convicted for committing offence under Section 406 IPC and sentenced accordingly and acquitted for charge under Section 120B I.P.C. and other accused persons, namely, Pradeep Kumar Gupta @ Tinkoo, Smt. Raj Km., Awadhesh Chandra Gupta, Smt. Dhaneshwari @ Vandana and Smt. Saroj were acquitted from the charges framed under Section 406/120B I.P.C.

6. Accused Shri Ram Gupta had died during the course of trial and proceedings against him were abated by the trial court, while as stated earlier accused Awadhesh Chandra Gupta and Smt. Dhaneshwari Gupta had died during the pendency of the instant proceedings and proceedings of this case have been abated against them.

7. Brief facts necessary for disposal of the instant proceedings, as are emerging from the record, are that the complainant Smt. Kalpana Gupta had filed a complaint before the Judicial Magistrate, Lucknow stating therein that the marriage of the complainant was solemnized with accused- Santosh Kumar Gupta on 29.11.1989 in accordance with the Hindu Rituals and at the time of her marriage her relatives and other persons had given gifts for her use and a list of the same has been enclosed with the complaint.

8. It is further stated that all the gifts which were given to the complainant were entrusted in the custody of accused persons by the family members of the complainant and the accused persons had promised that they will handover the gifts to the complainant, however, after few days of the marriage, the behaviour of the accused persons had changed towards the complainant and accused no.1 (husband) started pressurizing the complainant to give all her salary to him and by pressurizing the complainant had withdrawn Rs. 7,600/- from her Bank Account and had given the same to the accused no. 5 and 6 for the purpose of construction of their house at Khurram Nagar, Lucknow.

9. It is also stated in the complaint that in the year 1991 on the occasion of Dashehra Festival all accused persons demanded Rs. 50,000/- from her and on refusal the complainant was not given food for many days and all her jewellary and clothes and other gifts given in the marriage were taken by the accused persons with the promise that they will return these gifts, clothes and jewelry till 28.2.1990 but they instead of returning the above mentioned articles to the complainant misappropriated the same which was ''Stridhan' of the complainant and they are using the same illegally.

10. It is also stated that a notice was given to the accused persons by the applicant for returning all the items of her ''Stridhan' but accused persons did not return her ''Stridhan' and therefore all accused persons be summoned in the court and punished.

11. The trial court after recording the statement of complainant and her witnesses summoned the accused persons to face trial under Section 406 IPC read with 120-B IPC.

12. On the appearance of the accused persons the evidence of the complainant under Section 244 Cr.P.C. was recorded, wherein the statement of Smt. Kalpana Gupta (complainant) was recorded and in documentary evidence following documentary evidences were also produced:-

I. Notice sent by Shri C.B. Singh , Advocate on behalf of the complainant- Ext. Ka-1.

II. The acknowledgment of date 10.2.1992- Ext. Ka-2.

III. Copy of notice sent by Shri C.B. Singh, Advocate - Ext. Ka-3.

IV. The copy of acknowledgment - Ext. Ka-4.

V. Copy of the notice dated 29.4.2012- Ext. Ka-5.

VI. Copy of notice dated 7.5.91- Ext. Ka-6.

VI. Copy of notice dated 1.5.1992 Ext. Ka-7.

VII. Copy of receipt of registry Ext. Ka-9

VIII. Copy of receipt of registry dated 24.10.1989 Ext. Ka-10.

IX. Copy of receipt of registry dated 23.11.1989 Ext. Ka-11.

X. Copy of receipt of registry dated 29.11.1989, 24.11.1989, 27.11.1989 and 31.5.2015 Ext. Ka-12, Ka- 13, Ka-14 and Ka-15.

XI. List of articles given as ''Stridhan' Ext. Ka-16.

XII. Complaint petition Ext.Ka-17.

13. Apart from the complainant whose statement was recorded under Section 244 Cr.P.C. as P.W.1. The statement of the prosecution witness no.2- Sanjay Kumar Gupta and P.W.3- Sunil Kumar Gupta was also recorded under Section 244 Cr.P.C.

14. The charges under Section 406 IPC and Section 120-B IPC were framed against all the accused persons, to which the accused persons denied and claimed trial.

15. Under Section 246 Cr.P.C. the statement of P.W. 1- Smt. Kalpana, P.W. 2- Sanjay Kumar Gupta as well as P.W. 3- Sunil Kumar Gupta was recorded.

16. After conclusion of the evidence of the complainant the statement of the accused persons was recorded under Section 313 of the Cr.P.C. wherein they denied the evidence presented by the complainant and had also produced the defence witness no.1 - Santosh Kumar Gupta and defence witness no.2- Arjun Singh as defence witnesses.

17. The trial court after appreciating the evidence available on record came to the conclusion that the complainant is able to prove its case beyond reasonable doubt only with regard to the accused Santosh Kumar Gupta for committing offence under Section 406 IPC only and convicted him only under Section 406 IPC while the other accused persons were acquitted of all the charges framed against them and accused Santosh Kumar Gupta was also acquitted of the charge under Section 120B I.P.C.

18. Being aggrieved by the impugned judgment and order the complainant has preferred instant application under Section 378(4) Cr.P.C. requesting to grant special leave to appeal in order to challenge the impugned judgment and order.

19. Shri Rajesh Kumar Srivastava, learned counsel for the complainant/ applicant vehemently submits that the trial court has committed manifest illegality in appreciating the evidence available on rerecord and has acquitted the accused persons of the charges framed against them while it was proved beyond reasonable doubt that gifts items (Stridhan) of the complainant was given in the custody of all accused persons and they have misappropriated and converted the same to their use and therefore the offence under Section 406 I.P.C. and Section 120-B IPC was proved beyond reasonable doubt.

20. It is further submitted that all the accused persons had forcibly took possession of her ''Stridhan' and ousted her from her matrimonial home.

21. It is also submitted that the case of the complainant was proved by reliable evidence of herself as well as of her two witnesses, namely, P.W.2- Sanjay Kumar Gupta and P.W. 3- Sunil Kumar Gupta but the trial court appears to have given much weightage to the defence witnesses.

22. It is also submitted that the trial court has wrongly misinterpreted and passed judgment on the basis of surmises and conjectures, thus the complainant/ applicant be granted special leave to appeal in order to challenge the impugned judgment and order passed by the trial court.

23. Ms. Sonal Pandey, learned counsel appearing for the respondent no. 2 in Application under Section 378 No. 262 of 2017 and for respondent no.2 and 5 in Application under Section 378 No. 261 of 2017, vehemently submits that the trial court has committed no illegality so far as the acquittal of the respondents is concerned as the complianant has miserably failed to prove its case beyond reasonable doubt.

24. It is further submitted that it was evident from record that without there being any basis, the whole family of the husband Santosh Kumar Gupta has been roped in while even if the case of the prosecution is believed for a moment, according to her own version the ''Stridhan' was entrusted to the husband and therefore there is no illegality so far as the acquittal of other respondents is concerned.

25. Perusal of the record would reveal that by filing application for grant of special leave bearing no.262 of 2017, a request has been made to grant special leave to appeal to challenge the order of acquittal of respondent Santosh Kumar Gupta pertaining to offence under Section 120B I.P.C. with further prayer to sentence him with full imprisonment as provided under Section 406 I.P.C. wherein the respondent Santosh Kumar Gupta has been convicted by the trial court and by filing the application under Section 378(4) Cr.P.C. bearing no.261 of 2017, a request has been made to grant special leave to appeal to challenge the judgment and order of the acquittal of the trial court with regard to the other accused persons/respondent nos.2 to 6 as they have been acquitted by the trial court of the charges framed against them under Sections 406/120B I.P.C.

26. At the outset I would prefer to deal with the issue as to whether the instant appellant who is also a complainant of a complaint case may file application under Section 378(4) Cr.P.C. for grant of leave to appeal for enhancement of sentence imposed by the trial court with regard to the accused Santosh Kumar Gupta for committing offence under Section 406 I.P.C. as the issue with regard to his acquittal under Section 120B I.P.C. as well as of the other accused persons shall be dealt with later at appropriate stage of this order.

27. Perusal of the record would reveal that the respondent Santosh Kumar Gupta has been convicted by the trial court for committing offence under Section 406 I.P.C. and has been sentenced with three months' rigorous imprisonment alongwith fine. The question, therefore, is whether the complainant of the complaint case can file an appeal or special leave to appeal for enhancement of sentence. To understand this controversy, it is necessary to have a look at Section 378 of the Code. It reads as under:-

378. Appeal in case of acquittal.

(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), -

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court [not being an order under clause (a)] [or an order of acquittal passed by the Court of Session in revision.]

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may also direct the Public Prosecutor to present an appeal], subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal.

(a) to the Court of Session, from an order of acquittal passed by a Magistate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.]

(3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub- section (1) or under sub-section (2).

28. Hon'ble Supreme Court in the case of Subhash Chand Vs. State (Delhi Administration); MANU/SC/0016/2013 has opined as under:-

"15. At the outset, it must be noted that as per Section 378(3) appeals against orders of acquittal which have to be filed in the High Court under Section 378(1)(b) and 378(2)(b) of the Code cannot be entertained except with the leave of the High Court. Section 378(1)(a) provides that, in any case, if an order of acquittal is passed by a Magistrate in respect of a cognizable and non-bailable offence the District Magistrate may direct the Public Prosecutor to present an appeal to the court of Sessions. Sub- Section (1)(b) of Section 378 provides that, in any case, the State Government may direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. Sub-Section(2) of Section 378 refers to orders of acquittal passed in any case investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than the Code. This provision is similar to sub-section(1) except that here the words ''State Government' are substituted by the words ''Central Government'.

16. If we analyse Section 378(1)(a) & (b), it is clear that the State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence because of the categorical bar created by Section 378(1)(b). Such appeals, that is appeals against orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate. Section 378(1)(b) uses the words "in any case" but leaves out orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence from the control of the State Government. Therefore, in all other cases where orders of acquittal are passed appeals can be filed by the Public Prosecutor as directed by the State Government to the High Court.

17. Sub-Section (4) of Section 378 makes provision for appeal against an order of acquittal passed in case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the High Court. This sub-section speaks of ''special leave' as against sub-section (3) relating to other appeals which speaks of ''leave'. Thus, complainant's appeal against an order of acquittal is a category by itself. The complainant could be a private person or a public servant. This is evident from sub-section (5) which refers to application filed for ''special leave' by the complainant. It grants six months period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Sub- Section (6) is important. It states that if in any case complainant's application for ''special leave' under sub-Section (4) is refused no appeal from order of acquittal shall lie under sub-section (1) or under sub- section (2). Thus, if ''special leave' is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate not the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation.

18. Since the words ''police report' are dropped from Section 378(1) (a) despite the Law Commission's recommendation, it is not necessary to dwell on it. A police report is defined under Section 2(r) of the Code to mean a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173 of the Code. It is a culmination of investigation by the police into an offence after receiving information of a cognizable or a non- cognizable offence. Section 2(d) defines a complaint to mean any allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence, but does not include a police report. Explanation to Section 2(d) states that a report made by a police officer in a case which discloses after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint, and the police officer by whom such report is made shall be deemed to be the complainant. Sometimes investigation into cognizable offence conducted under Section 154 of the Code may culminate into a complaint case (cases under the Drugs & Cosmetics Act, 1940). Under the PFA Act, cases are instituted on filing of a complaint before the Court of Metropolitan Magistrate as specified in Section 20 of the PFA Act and offences under the PFA Act are both cognizable and non-cognizable. Thus, whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence be bailable or non- bailable, cognizable or non-cognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant. So far as the State is concerned, as per Section 378(1)(b), it can in any case, that is even in a case instituted on a complaint, direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than High Court. But there is, as stated by us hereinabove, an important inbuilt and categorical restriction on the State's power. It cannot direct the Public Prosecutor to present an appeal from an order of acquittal passed by a Magistrate in respect of a cognizable and non-cognizable offence. In such a case the District Magistrate may under Section 378(1)(a) direct the Public Prosecutor to file an appeal to the Session Court. This appears to be the right approach and correct interpretation of Section 378 of the Code."

29. Thus, under Section 378(4) Cr.P.C. the complainant has been given a right to seek special leave to appeal from the High Court to file an appeal to challenge a judgment of acquittal. Section 378(1)(a) has only permitted the District Magistrate, in any case, to direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. This provision was introduced whereunder an appeal against an order of acquittal could be filed in the Sessions Court. Such appeals were restricted to orders passed by a Magistrate in cognizable and non-bailable offences. Section 378(1)(b) specifically and in clear words has placed a restriction on the State's right to file such appeals. It states that the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Sessions Court in revision. Thus, the State Government cannot present an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence and complainant of a complaint case may file appeal only against an order of acquittal.

30. At this juncture Section 377 of the Cr.P.C. is also required to be considered and the same is reproduced as under:-

"377. Appeal by the State Government against sentence.

(1) Save as otherwise provided in sub- section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.

(2) if such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, 1 the Central Government may also direct] the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.

(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."

31. A plain reading of this Section would reveal that a power has been given to the State Government to file an appeal against the sentence imposed by trial court with regard to ''any case' in the manner provided under Section 377 Cr.P.C. Thus, this Section empowers the State Government to file an appeal against inadequacy of sentence before the District Court or the High Court as the case may be. It is also clear from this Section that such appeal against adequacy sentence may be filed irrespective of the fact that the prosecution was on the basis of police charge sheet or on the basis of private complaint. Therefore, the above discussion would sufficiently demonstrate that the remedy of challenging the inadequacy of the sentence lies with the State Government or the Central Government or the District Magistrate as the case may be. In this regard, it is fruitful to have a glance on the law laid down by Hon'ble the Supreme Court in the case of Parvinder Kansal Vs. The State of NCT of Delhi and another; (2020) 19 SCC 496, wherein it has specifically opined that a victim as defined under Section 2(wa) could only file an appeal as provided in the Proviso of Section 372 Cr.P.C. against the order of acquittal, conviction for lesser offence and for imposition of inadequate compensation and a victim has no right to appeal for enhancement of sentence under Section 372 Cr.P.C. Thus, in the considered opinion of this Court, the complainant of the complaint case also do not have any right to challenge inadequacy of sentence passed by the trial court while convicting the accused for any offence in complaint case.

32. Now the question will arise as to what remedy would be available to an aggrieved complainant of a complaint case who is aggrieved by inadequacy of sentence imposed by the trial court and neither the District Magistrate or the State Government as the case may be has initiated any proceeding by filing appeal under Section 377 Cr.P.C. for enhancement of sentence. In this regard a single Bench judgment of Hon'ble Kerela High Court passed in T. Jayarajan Vs. P.R. Muhammed and Ors; MANU/KE/0758/1999 would be relevant wherein learned single Judge of the Kerela High Court while referring to many authorities and also considering Section 397, 398, 399, 401 and 386 Cr.P.C. as well as after considering the law laid down by Hon'ble the Supreme Court in the case of Sahab Singh Vs. State of Haryana; MANU/SC/0224/1990 and by this Court in Darshan Lal v. Indra Kumar Mehta 1980 All LJ 217, opined as under:-

"14. It is clear from the above rulings of the various High Courts and the Surpeme Court that the failure of the State Government to prefer appeal before the High Court challenging inadequacy of the sentence under Section 377 of the Cr. P.C. will not preclude the jurisdiction of the High Court and Sessions Court to consider the inadequacy of the sentence on the basis of the revision filed by the complainant or the interested party challenging inadequacy of sentence except in cases such revisions are barred under Sub-section (4) of Section 401 of the Cr. P.C. Therefore the decision of the Division Bench of the Madras High Court reported in 1984 Cri JJ 243 (In re: Krishnamoorthy) to the effect that the High Court has no jurisdiction to consider whether the sentence is inadequate in a revision filed by the complainant in a private complaint, is not good law to be followed in view of the authoritative rulings of the apex Court. Hence the order passed by the learned Sessions judge relying upon the above decision of the Madras High Court dismissing the revision petition on the ground that it being filed by the complainant challenging the inadequacy of the sentence is not maintainable, is also not sustainable."

33. In Sahab Singh (Supra), Hon'ble the Supreme Court has opined as under:-

"The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code since the High Court itself is empowered to call for the record of the proceeding of any Court subordinate to it. Sub-section (4) of Section 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that sub-section cannot stand in the way of the High Court exercising revisional jurisdiction suo motu. But before the High Court exercises its suo motu revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice and is given an opportunity of being heard on the question of sentence either in person or through his advocate."

34. A Division Bench of this Court in the case of Darshan Lal (Supra) was also of the opinion reproduced as under:-

"According to Section 397(1) a Sessions Judge can call for and examine the record of any proceedings of any inferior criminal Court situate within his jurisdiction for satisfying himself as to the correctness, legality or propriety of any finding, sentence or order. The grievance of the applicant in the revision filed by him before the trial Court was wholly inadequate. The Sessions Judge could, therefore, examine that question in view of the powers conferred on him by Sub-section (1) of Section 397 of the Code of Criminal Procedure. Further, under Sub-section (1) of Section 399 of Sessions Judge, while dealing with a revision, can exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. By this it would follow that if the High Court, while dealing with a revision can enhance the sentence, the Sessions Judge can also do it. According to Sub-section (1) of Section 401 the High Court, while dealing with a revision, can exercise any of the powers conferred on an appellate Court, by Section 386 of the Code. According to Clause (c) of Section 386 of the Code, the appellate Court can, in an appeal for enhancement of sentence, alter the nature or the extent of the sentence so as to enhance or reduce the same. In view of this provision contained in Section 386, Cr. P.C. it should be held that the High Court, while dealing with a revision, can enhance the sentence. As already stated earlier the powers of a Sessions Judge, while dealing with a revision, are the same as that of the High Court. Since the High Court can enhance the sentence while dealing with the revision, the Sessions Judge can also do so. "

35. Thus, having regard to the law placed herein before, it would be clear that if the State Government is not coming forward to challenge inadequacy of sentence passed in a complaint case, the complainant of that case would not be remediless and he can challenge the same by filing criminal revision before the appropriate court and the revisional court may exercise any of the power conferred under Section 386 Cr.P.C. by virtue of Section 401 Cr.P.C. subject to the limitation set forth under Sub Section 5 of Section 401 Cr.P.C.

36. The aforesaid legal position would suggest that it is for the State or for the District Magistrate under Section 377 Cr.P.C. to file an appeal for enhancement of the sentence and neither the victim under Section 372 Cr.P.C. nor the complainant of a complaint case could file such an appeal or application to grant special leave to appeal pertaining to the enhancement of sentence. Thus, the appeal/application for grant of special leave for enhancement of the sentence pertaining to the sentence imposed by the trial court on the accused Santosh Kumar Gupta with regard to committing offence under Section 406 I.P.C., in the considered opinion of this Court, is not maintainable under Section 378(4) Cr.P.C. Therefore, the request of the appellant/applicant to this extent is rejected.

37. Now coming to the next question, as to whether the trial court has committed any illegality in appreciating the evidence available on record in order to exonerate accused Santosh Kumar Gupta for committing offence under Section 120B I.P.C. or other accused persons for committing offence under Section 120B and 406 I.P.C., there cannot be any other preposition than the fact that to constitute an offence under Section 120B I.P.C., the meeting of minds is an important ingredient and either there must be a direct evidence or the evidence of circumstantial nature whereby a valid inference could be made that before committing particular offence, the accused persons were having an opportunity to have consesus in order to hatch a conspiracy. Perusal of the judgment of the trial court would reveal that the trial court has acquitted accused Santosh Kumar Gupta for committing offence under Section 120B I.P.C. and other accused persons of the charges framed under Section 406/120B I.P.C. on following grounds.

(i) The complainant failed to prove meeting of minds of accused persons for hatching a conspiracy to misappropriate her stridhan.

(ii) The list of articles filed with the complaint only contains signature of complainant and is not containing signatures of any accused persons.

(iii) The complainant in her statement recorded before the trial court has admitted that articles at the time of vidai were given by her parents in the custody of accused Santosh Kumar Gupta.

(iv) Notice to return articles was given to accused Santosh Kumar Gupta (himself).

(v) P.W.-3 Sunil Kumar Gupta has given hearsay evidence.

(vi) The evidence of the prosecution only proves that articles were only entrusted to husband and despite notice he has not returned the articles and misappropriated the same and then convicted only the accused Santosh Kumar Gupta for committing offence under Section 406 I.p.C. and acquitted him of charge under Section 120 I.P.C. and other persons of charge sunder Sections 120B and 406 I.P.C.

38. Hon'ble Supreme Court of India in Pratibha Rani Vs. Suraj Kumar and Ors.; MANU/SC/0090/1985, while discussing the ingredient of Section 405 I.p.C. as punishable under Section 406 I.P.C., held as under:-

"Section 405 of the Penal Code reads thus:

"Section 405.- Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".

A careful reading of Section 405 shows that the ingredients of a criminal breach of trust are as follows:

i) A person should have been entrusted with property, or entrusted with dominion over property;

ii) That person should dishonestly misappropriate or convert to their own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; and

iii) That such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.

Entrustment is an essential ingredient of the offence. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code .The jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised with care. In the exercise of its jurisdiction, a High Court can examine whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the court.

"39. The Supreme Court in a large number of cases has held that the fundamental core of the offence of criminal breach of trust is that a property must be entrusted and the dominion of the property should be given to the trustee. In the present case, all these conditions, even according to the findings of the Court Though not its conclusion are clearly established. That the view of the High Court is absolutely wrong would be clear from a number of authorities, some of which we would like to discuss here.

40. In Chelloor Manaklal Naravan Ittiravi aNambudiri v. State of Travancore MANU/SC/0091/1952 : AIR1953SC478 this Court made the following observations:

As laid down in Section 385, Cochin Penal Code (corresponding to Section 405, Indian Penal Code) to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or Power over it.... It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit.

41. In Jaswantrai Manilal Akhaney v. State of Bombay MANU/SC/0030/1956 : 1956CriLJ1116 Sinha, J. (as he then was) observed thus:

For an offence under Section 409, Indian Penal Code the first essential ingredient to be proved is that the property was entrusted.... But when Section 405 which defines "criminal breach of trust speaks of a person being in any manner entrusted with property, it does not contemplate the creation of a trust with all the technicalities of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain events.

42. In Akharbhai Nazarali v. Md. Hussain Bhai MANU/MP/0021/1961 :AIR1961MP37 the Madhya Pradesh High Court made the following observations :

It may be that the deduction and retention of the employees' contribution is a trust created by virtue of that very fact, or by virtue of a provision in statute or statutory rule. But even apart from the latter, the mere fact of telling the employees that it is their contribution to the provident fund scheme and then making a deduction or recovery and retaining it, constitutes the offence of criminal breach of trust. This is so obvious that nothing more need be said about it.

43. These observations were fully endorsed and approved by this Court in Harihar Prasad Dubey v. Tulsi Das Mundhra and Ors. MANU/SC/0263/1980 : 1980CriLJ1340 where the following observations were made:

This, in our opinion, is a correct statement of the position and we also agree with the learned Judge of the Madhya Pradesh High Court that "this so obvious that nothing more need be said about it". We, therefore, think that the impugned order quashing the charge against the respondents is obviously wrong.

44. In Basudeb Patra v. Kanai Lal Haldar AIR 1949 Cal 207 the Calcutta High Court observed thus:

Whereas the illustration to Section 405 show equally clearly that the property comes into the possession of the accused either by an express entrustment or by some process placing the accused in a position of trust.... On the facts of the present case, which, as I have said, are not open to question at this stage, it is quite clear that the ornaments were handed over to the petitioner by the beneficial owner in the confidence that they would be returned to the beneficial owner in due time after having been used for the purpose for which they were handed over. If this is not an entrustment, it is impossible to conceive what can be an entrustment.

(Emphasis ours)

45. This ratio was fully approved by this Court in Velji Raghavji Patel v. State of Maharasatra MANU/SC/0091/1964 : 1965CriLJ431 where the following observation were made:

In order to establish " entrustment of dominion" over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris, C.J. the prosecution must establish that dominion over the assets or a particular asset of the partnership was by a special agreement between the parties, entrusted to the accused person.

46. In the case of State of Gujarat v. Jaswantlal Nathalal MANU/SC/0091/1967 : 1968CriLJ803 Hegde, J., speaking for the Court observed thus:

The expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them.

47. In Sushil Kumar Gupta v. Joy Shanker Bhattacharjee MANU/SC/0201/1970 : [1970]3SCR770 this Court observed thus :

The offence of criminal breach of trust is committed when a person who is entrusted in any manner with property or with dominion over it, dishonestly misappropriates it or converts it to his own use.... The appellant's manner of dealing with the money entrusted to his custody clearly constitutes criminal breach of trust.

48. In the case of Superintendent & Remembrancer of Legal Affairs, West Bengal v. S.K. Roy MANU/SC/0229/1974 : 1974CriLJ678 this Court held that for 'entrustment' two things are necessary, viz, (1) the entrustment may arise in "any manner" whether or not it is fraudulent, and (2) the accused must have acquisition or dominion over the property."

39. Perusal of the record as well as of the statement of the prosecution witnesses in the background of above proposition of law would reveal that the finding of the trial court with regard to the fact that at the time of vidai, the articles according to the own statement of the complainant were entrusted to the accused Santosh Kumar Gupta. However, it has been specifically stated by the complainant in her evidence that the said entrustment of articles to the Santosh Kumar Gupta was for the purpose of returning the articles to her. Thus, the finding of the trial court with regard to the fact that the articles were entrusted only to accused Santosh Kumar Gupta (husband) could not be said to be not based on evidence available on record. It is to be recalled that to constitute an offence under Section 406 I.P.C., an entrustment of the articles or the property which is said to have been misappropriated is an important ingredient and in absence of the same, the accused persons could not be convicted under Section 406 I.P.C.

40. Having gone through the whole prosecution evidence on record, it is evident that at first articles were only entrusted to the accused Santosh Kumar Gupta and notice to return the said articles was also given only and only to accused Santosh Kumar Gupta. Thus, in this background of the factual matrix/evidence, I do not find any illegality in the findings of the trial court that the other co-accused persons except Santosh Kumar Gupta could not be convicted for committing offence under Section 406 I.P.C.

41. Coming to the finding of acquittal recorded for offence under Section 120B I.P.C. this Court is of the considered view, when all co-accused persons have been acquitted by the trial court of the charges framed under Section 406 I.P.C., it was not possible for the trial court to have convicted the appellant Santosh Kumar Gupta for the offence committed under Section 120B I.P.C. as the criminal conspiracy requires presence of another person and no sole accused person could be convicted for committing offence under Section 120B I.P.C. It is to be clarified that even if the allegations of the prosecution are to the tune that there are some unknown persons with whom conspiracy was hatched, in that scenario the conviction of the sole accused could be sustained under Section 120B I.P.C. which is not the case of the complainant in the instant matter. Otherwise also the evidence available on record suggests that the conviction of the only accused Santosh Kumar Gupta was justified having regard to the nature of the evidence produced before the trial court. Hon'ble Supreme Court in the case of Topandas Vs. The State of Bombay; MANU/SC/0032/1955 has opined as under:-

"6. Criminal conspiracy has been defined in section 120-A of the Indian Penal Code:-"When two or more persons agree to do or cause to be done (i) an illegal act, or (ii) an act which is, not illegal by illegal means, such an agreement is designated a criminal conspiracy". By the terms of the definition itself there ought to be two or more persons who must be parties to such an agreement and it is trite to say that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself. If, therefore, 4 named individuals were charged with having committed the offence under section 120- B of the Indian Penal Code, and if three out of these 4 were acquitted of the charge, the remaining accused, who was the accused No. 1 in the case before us, could never be held guilty of the offence of criminal conspiracy.

7. If authority for the above proposition were needed, it is to be found in Archbold's Criminal Pleading, Evidence and Practice, 33rd edition, page 201, paragraph 361:-

"Where several prisoners are included in the same indictment, the jury may find one guilty and acquit the others, and vice versa. But if several are indicted for a riot, and the jury acquit all but two, they must acquit those two also, unless it is charged in the indictment, and proved, that they committed the riot together with some other person not tried upon that indictment.

2 Hawk. c. 47. s. 8. And, if upon an indictment for a conspiracy, the jury acquit all the prisoners but one, they must acquit that one also, unless it is charged in the indictment, and proved, that he conspired with some other person not tried upon that indictment. 2 Hawk. c. 47. s. 8; 3 Chit. Cr. L., (2nd ed.) 1141; R. v. Thompson, 16 Q.B.D. 832; R. v. Manning, 12. Q.B.D. 241; R. v. Plummer [1902] 2 K.B. 339".

8. The King v. Plummer ([1902] 2 K.B. 339) which is cited in support of this proposition was a case in which, on a trial of indictment charging three persona jointly with conspiring together, one person had pleaded guilty and a judgment passed against him, and the other two were acquitted. It was held -that the judgment passed against one who had pleaded guilty was bad and could not stand. Lord Justice Wright observed at page 343:-

"There is much authority to the effect that, if the appellant had pleaded not guilty to the charge of conspiracy, and the trial of all three defendants together had proceeded on that charge, and had resulted in the conviction of the appellant and the acquittal of the only alleged co-conspirators, no judgment could have been passed on the appellant, because the verdict must have been regarded as repugnant in finding that there was a criminal agreement. between the appellant and the others and none between them and him: see Harrison v. Errington (Popham,202), where upon an indictment of three for riot two were found not guilty and one guilty, and upon error brought it was held a "void verdict", and said to be "like to the case in 11 Hen. 4, c. 2, conspiracy against two, and only one of them is found guilty, it is void, for one alone cannot conspire"."

9. Lord Justice Bruce at page 347 quoted with approval the statement in the Chitty's Criminal Law, 2nd ed., Vol. III, page 1141:-

"And it is holden that if all the defendants mentioned in the indictment, except one, are acquitted, and it is not stated as a conspiracy with certain persons unknown, the conviction of the single defendant will be invalid, and no judgment can be passed upon him".

10. The following observations made by Lord Justice Bruce are apposite in the context before us:-

"The point of the passage turns upon the circumstance that the defendants are included in the same indictment, and I think it logically follows from the nature of the offence of conspiracy that, where two or more persons are charged in the same indictment with conspiracy with another, and the indictment contains no charge of their conspiring with other persons not named in the indictment, then, if all but one of the persons named in the indictment are acquitted, no valid judgment can be passed upon the one remaining person, whether he has been convicted by the verdict of a jury or upon his own confession, because, as the record of conviction can only be made up in the terms of the indictment, it would be inconsistent and contradictory and so bad on its face. The gist of the crime of conspiracy is that two or more persons did combine, confederate, and agree together to carry out the object of the conspiracy".

11. This position has also been accepted in India. In Gulab Singh v. The Emperor (A.I.R. 1916 All. 141) Justice Knox followed the case of The King v. Plummer, supra, and held that "it is necessary in a prosecution for conspiracy to prove that there were two or more persons agreeing for the purpose of conspiracy" and that "there could not be a conspiracy of one".

42. In the case of Parveen Vs. The State of Haryana; MANU/SC/1190/2021, Hon'ble the Supreme Court has opined as under:-

"12. It is fairly well settled, to prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy..........."

43. It is to be understood that under Section 378(4) Cr.P.C., special leave to appeal is required by a complainant in contrast to Section 378(3) Cr.P.C. where only leave to appeal is required, it means that a grave illegality or evident perversity is required to be shown, in order to request a court to exercise its jurisdiction under Section 378(4) Cr.P.C. There cannot be any other view than the preposition that in an appeal against acquittal, the Court has full power to review the evidence upon which the acquittal has been recorded. However, it has to be remembered and kept in mind that the initial presumption of innocence, which was available to the respondents at the time of trial has been further fortified by the order of acquittal and the decision of the trial court could be reversed only for very substantial and compelling reasons. However, substantial or compelling or strong reasons are not to be meant to curtail undoubted powers of an appellate court in an appeal against acquittal and the appellate court may come to its own conclusion on the basis of re-appreciation of evidence, but in doing so, the Court should not only consider every evidence available on record which may have a bearing on the questions of fact and the reasons given by the trial court in support of the order of acquittal in arriving at a conclusion, but also to express those reasons in its judgment to show that the acquittal was not justified. Our view is fortified by the judgments of the Hon'ble Supreme Court passed in Ajmer Singh Vs. State of Punjab, 1953 SCR 418, Sanwat Singh and Others Vs. State of Rajasthan, AIR 1961 SC, 715 and Sadhu Sharan Singh Vs. State of Uttar Pradesh and Others reported in 2016 Cr.L.J. 1908.

44. Having perused the judgment of the trial court in the background of the above-mentioned legal position as well as keeping in view the settled principles of appreciation of evidence, I am of the view that the burden is always on prosecution/complainant to prove the guilt of the accused person(s) beyond reasonable doubt and if on a reasonable appreciation of evidence two views appears to be possible, then the view which is favourable to the accused person(s) should be adopted. However, the Court is to put itself on guard that benefit of each and every doubt could not be claimed by the accused person(s). It is only reasonable doubt, benefit of which could be extended to the accused of a crime.

45. Keeping in view the above propositions of law for grant of special leave to file an appeal from acquittal, very strong and cogent reasons are required for interfering in the judgment of acquittal, and if, the findings of the trial court are based on the evidence available on record and there is nothing which may brand the appreciation of evidence done by the trial Court as perverse, the finding of acquittal should not be easily disturbed.

46. Keeping in view the inherent weaknesses appearing in the prosecution evidence, we are of the considered opinion that the view taken by the trial court was a probable and logical view and the judgment of the trial court cannot be said to be not based on material on record or either illegal, illogical or improbable. Therefore, I am satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference in the judgment of the trial court is called for. Hence, the prayer for grant of special leave to appeal is hereby rejected and the application to grant special leave to file appeal is dismissed.

47. Since application for grant of special leave to appeal has been rejected, the appeal would also not survive. Consequently, the appeal is also dismissed.

(Mohd. Faiz Alam Khan,J.)

Order Date :- 16.1.2023

Saurabh/Muk