Sanjay S/O Ramdas Borkar vs State Of Mah. Thr. Pso, Ps, Ajani, ...
2022 Latest Caselaw 5306 Bom

         22-cri.appeal 563-2021-                                                                1/10




                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR.

                             CRIMINAL APPEAL NO.563 OF 2021

         APPELLANT:-                       Sanjay Ramdas Borkar,
                                           aged about 45 years, Occu.Business,
                                           R/o Plot No.3, Dayalu Society, Near Uday
                                           Lawn, CMPDI Road, Jaripatka, Nagpur.


                                              ...VERSUS...

         RESPONDENT :-                      State of Maharashtra, through Police
                                            Station Officer, Police Station, Ajani,
                                            Nagpur
         --------------------------------------------------------------------------------------------
                            Mr.A.S.Dhore, counsel for the appellant.
                               Mr. M.J.Khan, APP for respondent
         ---------------------------------------------------------------------------------------------

                                                     CORAM : SUNIL B.SHUKRE &
                                                             G.A.SANAP, JJ.

DATE : 13.06.2022.

         ORAL          J U D G M E N T (Per :Sunil B.Shukre, J.)



                          Heard.

2. Rule. Rule made returnable forthwith. Heard finally

by consent of the learned counsel appearing for the parties.

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3. The appellant has been convicted by the Special

Judge, under The Maharashtra Protection of Interest of Depositors

(In Financial Establishments) Act, 1999 (for short herein after

referred to as the 'MPID Act'), for three offences for which

separate sentences of punishments have been passed by the

learned Special Judge, by his judgment and order dated

30.03.2021. Being aggrieved by the same, the appellant is before

this Court.

4. The appellant was prosecuted and tried for the

offences of cheating, criminal breach of trust and fraudulent

default, punishable respectively under Sections 420 and 406 of the

Indian Penal Code and Section 3 of the MPID Act.

5. It was alleged that the appellant posed himself as a

Director of the Company by name Krushak Mitra Organic Farming

And Rural Development Agency, engaged in the business of

Vermicompost Project. It was further alleged that the appellant

approached different persons in or about the year 2010 and

Kavita 22-cri.appeal 563-2021- 3/10

informed them that he was the Director of the said Company and

that if they made investment in his company to the extent of Rs

49,960/- for one year, he would pay them an amount of

Rs.2,125/- per month for one year and at the end of the year, he

would also return the principal amount of Rs.49,960/-. By

informing so, it is further alleged that the appellant allured various

persons to invest the amount of Rs.49,960/- for one year and in

some cases, further amounts for extended periods of time. It is

alleged that these persons invested these amounts believing in the

truthfulness of the appellant and the promises given by him only

to find later on that they were deceived by the appellant.

Accordingly, FIR was lodged by PW-3 Pramod Shinde on

29.01.2019 at Police Station Ajni on the basis of which aforestated

offences were registered against the appellant and investigation

was initiated. In due course, charge-sheet was filed and the

appellant was tried for the said offences. The appellant was

ultimately convicted for each of the offences and sentences of

punishments for four years each, for the offence of cheating and

fraudulent default and sentences of punishment of two years for

the offence of criminal breach of trust, respectively punishable

Kavita 22-cri.appeal 563-2021- 4/10

under Section 420 of the Indian Penal Code, Section 3 of the MPID

Act and 406 of the Indian Penal Code were handed out. The

appellant has challenged before this Court the judgment and order

dated 30.03.2021 before this Court by which the aforestated

punishments have been awarded to the appellant.

6. The learned counsel for the appellant fairly concedes

the fact that there is an evidence against the accused for the

offence punishable under Section 406 of the Indian Penal Code

and also section 3 of the MPID Act. He however, submits that

since the appellant had returned some amounts to the respective

investors, who are the prosecution witnesses from PW-1 to PW-6,

by no stretch of imagination, could it be said that, there was

dishonest intention on the part of the appellant/accused since

inception. The learned counsel for the appellant further submits

that the only mistake that the appellant committed is acceptance

of various deposits from the investors, examined as prosecution

witnesses from PW-1 to PW-6, without obtaining prior permission

of Reserve Bank of India. He also submits that since, the appellant

failed to return some portions of the investments and in some

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cases the cheques issued by him for different amounts to various

investors were dishonoured, may be the offences of criminal

breach of trust, punishable under Section 406 of the Indian Penal

Code and fraudulent default under Section 3 of the MPID Act are

constituted in the present case and therefore, he would not raise

any challenge in respect of the findings recorded by the trial

Court. The learned counsel for the appellant submits that the

appellant does not have any criminal antecedents and this was

genuinely a case of misfortune visiting the appellant for some

reasons not entirely within the control of the appellant and

therefore, some leniency may be shown to the appellant. He,

therefore, prays for modification of the sentences of punishment

from four years to the period already undergone by the appellant.

He submits that the appellant was arrested on 29.01.2019 and

thus, had put in almost three and half years in jail and according

to him, this punishment is sufficiently deterrent as well as

reformative for the appellant.

7. The learned APP submits that not only the offences

punishable under Section 406 of the Indian Penal Code and under

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Section 3 of the MPID Act are made out, but the offence of

cheating punishable under section 420 of the Indian Penal Code is

also established beyond reasonable doubt and therefore, there is

no need to interfere with all the findings of guilt recorded by the

trial Court. He submits that total amount of misappropriation and

fraudulent default is to the extent of Rs.37,70,320/- and

considering this amount, an appropriate order regarding sentences

awarded to the appellant be passed.

8. On going through the depositions of the prosecution

witnesses namely, PW-1 Sharad Gedam, PW-2 Shrikrishna

Bondade, PW-3 Pramod Shende, PW-4 Surajlal Dhahare, PW-5

Manoj Raulkar and PW-6 Moin Sani Mohd. Jabir, who are the

persons from whom the appellant had accepted different amounts

on different dates, which amounts were returned partly in some

cases and not returned in some cases by the appellant and the

entire record of the case, we find ourselves in agreement with the

submissions of the learned counsel for the appellant. All these

witnesses, have unanimously deposed before the trial Court that

after accepting the amounts from them, the appellant had

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returned the amount of Rs.2,125/-, as already promised by him,

on monthly basis, although the period for which such returns

continued differs. In the cases of PW-1 Sharad and PW-2

Shrikrishna, this amount of Rs.2,125/- has been continued to be

paid every month for a period of six months, in the cases of PW-3

Pramod Shende and PW-6 Moin Sani, this amount of Rs.2,125/-

was continued to be paid to them for a period of three months and

in the cases of PW-4 Surajlal and PW-5 Manoj, this amount of

Rs.2,125/- was continued to be paid for two months. The fact that

the appellant kept a part of his promise by paying each of the

witnesses, the amount of Rs.2,125/- on monthly basis for a certain

period of time itself shows that that there was no dishonest

intention on the part of the appellant since beginning of the

transaction. It further shows that due to some reasons, which the

appellant has not disclosed properly, the appellant could not

return the remaining amount. If this is so, it would be a case of

mere breach of promise and not any case of cheating the investors,

thereby not fulfilling the ingredients of offence of cheating

punishable under Section 420 of the Indian Penal Code. To this

extent, therefore, we find that the finding of guilt recorded by the

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trial Court for an offence punishable under Section 420 Indian

Penal Code is incorrect and needs to be interfered with.

9. As regards the remaining two offences, viz., criminal

breach of trust punishable under Section 406 of the Indian Penal

Code and fraudulent default punishable under Section 3 of the

MPID Act, we find that findings of guilt recorded in respect of

each of these offences by the trial Court are correct as they are

based upon proper appreciation of evidence and reaching proper

conclusions thereafter. Although there was no intention of

cheating since beginning, we find that later on the appellant,

having failed to return the amounts accepted by him and in some

cases even cheques issued by him to the investors having been

dishonoured, the offence of criminal breach of trust is completely

established without any doubt and therefore, the findings

recorded in this respect by the trial Court need no interference. As

regards the offence punishable under Section 3 of the MPID Act,

we are of the view that the appellant admittedly did not possess

any permission from the Reserve Bank of India to accept the

deposits and even then he accepted the deposits and not only that

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he failed to keep his promise completely and therefore, even this

offence of fraudulent default can be said to be established by the

prosecution beyond reasonable doubt.

10. Now the question is as to whether, or not this Court

should reduce substantive sentences of punishment by taking a

lenient view. We are of the opinion that leniency deserves to be

shown to the appellant considering the fact that he has no criminal

record and that this is not purely a case of cheating and entering

into transactions with the investors with fraudulent intention since

inception. Besides, the appellant has already spent about three

and half years in jail from out of four years of rigorous

imprisonment, the punishment awarded to him for the offence of

fraudulent default under Section 3 of the MPID Act. We are,

therefore, inclined to reduce this substantive sentence to the

period of jail already undergone by the appellant. However, we

would not make any interference with the default sentences

awarded by the trial Court for the offences punishable under

Section 406 of the Indian Penal Code and Section 3 of the MPID

Act.

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11. In the result, the appeal is partly allowed. The

conviction and sentence of the appellant for an offence of cheating

punishable under Section 420 of the Indian Penal Code are hereby

quashed and set aside. The conviction of the appellant for the

offence of criminal breach of trust punishable under Section 406

and offence of fraudulent default punishable under Section 3 of

the MPID Act is upheld and confirmed. However, substantive

sentence of punishment awarded to the appellant for the offence

punishable under Section 3 of the MPID Act is modified and

reduced to the period of detention already undergone by the

offender. The rest of the part of operative order including the fine

amounts imposed and default sentences awarded by the trial

Court for the offences punishable under Section 406 of the Indian

Penal Code and Section 3 of the MPID Act, is confirmed.

12. Rule is made absolute in the above terms. No costs.

                                                   (G.A.SANAP, J)         (SUNIL B. SHUKRE,J)



    Kavita
Signed By:KAVITA PRAVIN
TAYADE
P. A.

Signing Date:15.06.2022 17:19