Bombay High Court
Rajiv Virendra Bhatia vs The State Of Maharashtra on 12 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:1540
Urmila Ingale 5-REVN-165-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 165 OF 2019
Rajiv Virendra Bhatia ..Applicant
VS.
The State of Maharashtra ..Respondent
Mr. Karan L. Jain, for the applicant.
Ms. S. D. Shinde, APP for the State.
HC-Mr. Ravindra Pawar, Khar police station present.
CORAM : M. S. KARNIK, J.
DATE : JANUARY 12, 2024
ORAL JUDGMENT :
1. Heard learned counsel for the applicant and learned
APP.
2. The grievance of the first informant was that the
applicant cheated the first informant and further committed
criminal breach of trust. The cheating involves an amount
of Rs. 1 Crore. The applicant issued cheques in favour of
the complainants which came to be dishonoured. Hence,
proceedings before the trial Court for the offences
punishable under sections 406 and 420 of the Indian Penal
Code, 1860 (for short, "IPC") was filed. The applicant was
convicted for the offences punishable under sections 406 &
Urmila Ingale 5-REVN-165-19.doc
420 of the IPC and sentenced to suffer rigorous
imprisonment for 2 years and 18 months respectively.
Considering the fact that the applicant is a practicing
advocate and having regard to the nature of the
accusations, the trial Court directed the sentences to run
consecutively. The applicant was ordered to pay
compensation of Rs.2 lakhs payable to the first informant
and in default, to suffer imprisonment of 6 months. The
period of 10 months and 28 days was given as set off. The
appeal was filed before the Appellate Court.
3. The Appellate Court in paragraphs 10 and 12 observed
thus:
"10. The abovementioned provision contains the legal
provisions about the quantum of the punishment. Section
406 and 420 of the Indian Penal Code in the present case
are distinct. The ingredients of dishonestly inducing the
informant and her uncle and thereby making them to part
with the said amounts are not common ingredients with the
offence punishable under Section 406 of the Indian Penal
Code. Therefore, law permits separate punishments for both
these offences. Section 406 of the Indian Penal Code has
the ingredients of misusing the funds for own purpose by
committing criminal breach of trust. Therefore, the
arguments of the learned Advocate that since it is a case of
single transaction, the sentence should be concurrent,
cannot be accepted.
12. In the given set of facts, I do not find that the sentences
awarded by the learned Trial Court are result of any wrong
interpretation of these observations of our Hon'ble High
Court. The quantum of sentence has to be decided based on
Urmila Ingale 5-REVN-165-19.doc
the aggravating and mitigating circumstances. The age of
the accused and period of incarceration are also not the
sole criteria for determining the quantum of sentence. By
giving the cheques to the informant and her uncle, the
offences were not mitigated. Those cheques were
dishonoured. There were no mitigating circumstance.
Therefore, in absence of any mitigating circumstances, I find
that the quantum of sentence is neither excessive nor
disproportionate. No fine was imposed. The direction was to
pay the compensation. Therefore, though the accused
sought reduction of fine, since there is no fine at all, there is
no question of reduction of the fine. Even the quantum of
compensation also needs no interference. Hence, I answer
points No.1 and 2 in the negative. In result, the appellant is
not entitled for any relief. The Appeal is liable to be
dismissed."
4. The appeal came to be dismissed and the order of the
trial Court was maintained. Learned counsel for the
applicant relied upon the decision of the Supreme Court in
V.K. Bansal Vs. State of Haryana & Ors. to submit that
even present is the offence out of a single transaction and
the quantum of imprisonment may be reduced and the
sentences be directed to run concurrently instead of
consecutively.
5. Learned APP opposed the application. She argued in
support of the impugned order. It is submitted that the
manner in which the offence is committed by the applicant
justifies the concurrent orders of the Courts below directing
1 2013 AIR (SC) 3447
Urmila Ingale 5-REVN-165-19.doc
the sentence to run consecutively. It is submitted that the
impugned order should not be interfered with.
6. The Appellate Court has proceeded on the footing that
law permits separate punishments for offences under
sections 406 and 420 IPC. The Appellate Court did not
accept the case of the applicant that this is a case of single
transaction for the reason that section 406 of IPC has
ingredients of misusing the funds for own purpose by
committing criminal breach of trust and that a separate
offence as regards section 420 of IPC is made out.
7. No doubt, this Court in Notice of Motion No.1276 of
2014 and 1336 of 2013 directed the Bar Council to take
appropriate action in the matter against the present
applicant for such misconduct. The Bar Council will
undoubtedly take the proceedings to the logical conclusion
in compliance of the orders passed by this Court in Notice of
Motion No. 1276 of 2014 and 1336 of 2013.
8. It however needs to be considered that the allegation
of the complainants was that a sum of Rs. 1 Crore was paid
by them to the applicant which the applicant had assured
to invest in purchase of property. It was assured by the
Urmila Ingale 5-REVN-165-19.doc
accused that the property upon being sold, the profits could
be shared. It needs to be considered that the applicant had
pleaded guilty before the trial Court. In my opinion, the
Appellate Court has committed an error in coming to the
conclusion that there are 2 different transactions, one
relating to section 406 and the other relating to section 420
of IPC having regard to the facts and circumstances of this
case. The Courts below committed an error directing the
above sentences shall run consecutively instead of
concurrently. Learned counsel for the applicant has
submitted that the compensation amount of Rs. 2 lakhs has
been deposited in this Court which he has no objection to
the first informant withdrawing the said amount. The
statement is accepted as an undertaking to this Court. I am
informed by learned counsel for the applicant that the
applicant has already served the sentence if the same is to
run concurrently. In this view of the matter, the application
is accordingly allowed in terms of prayer clause (a).
(M. S. KARNIK, J.)
Signed by: Urmila P. Ingale
Designation: PS To Honourable Judge
Date: 12/01/2024 19:09:44
