Bombay High Court
Mrs Hirabai Annasaheb Chavan And Anr vs State Of Mah on 23 September, 2024
2024:BHC-AUG:22501 1 Cri.Rev.Appln.208-05 & ors.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.208 OF 2005
1. Sow. Subhadrabai w/o Raosaheb Pawar,
Age 47 years, Occu. Household,
R/o H-3/1, Shrikrishna Nagar,
T. V. Centre, N-9, Hudco,
Aurangabad.
2. Raosaheb S/o Shamrao @ Ramrao Pawar,
Age 53 years, Occu. Service,
R/o As above. ... Applicants.
Versus
The State of Maharashtra ... Respondent.
WITH
CRIMINAL REVISION APPLICATION NO.214 OF 2005
1. Hirabai w/o Annasaheb Chavan,
Age 44 years, Occu. Household,
2. Annasaheb s/o Jaiwantrao Chavan,
Age 47 years, Occu. Service,
Both R/o H-24/04, Shrikrishna Nagar,
N-9, Hudco, Aurangabad. ... Applicants.
Versus
The State of Maharashtra ... Respondent.
...
Advocate for Applicants in Revn./208/05 : Mr. S. G. Ladda.
Advocate for Applicants in Revn./214/05 : Mr. S. S. Jadhav.
APP for Respondent/State in both Revn. : Mr. S. P. Sonpawale.
...
2 Cri.Rev.Appln.208-05 & ors.odt
CORAM : S. G. MEHARE, J.
RESERVED ON : 10.09.2024
PRONOUNCED ON : 23.09.2024
JUDGMENT :
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1. Heard the learned counsels for the respective parties.
2. The applicants/accused who have been convicted of the
offences punishable under Sections 420 read with Section 34
of the IPC and under Section 3 read with Section 4 of the Prize
Chits and Money Circulation Schemes (Banning) Act, 1978
("Act of 1978" for short) have impugned the judgments and
orders of the learned Chief Judicial Magistrate, Aurangabad
passed in RCC.No.1719 of 2001, dated 07.04.2005 and the
learned 2nd Additional Sessions Judge, Aurangabad confirming
the judgment and order of the learned Chief Judicial
Magistrate in Criminal Appeal Nos.37 of 2005 and 39 of 2005,
dated 05.07.2005.
3. Learned counsels for the applicants have vehemently
argued that both Courts erred in law in holding that both the
offences have been proved beyond a reasonable doubt. Learned
counsel Mr. Ladda for the applicant Subhadrabai and another
have tried to open the case by referring to the evidence. The
law is clear that unless the glaring features are brought to the
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notice of the High Court, it cannot re-appreciate the evidence
in revision. However, he referred to some facts about the
incapacity of the complainants to pay or deposit the money for
chit because she or her family had no sufficient income to pay
such instalments. He referred to the judgments and argued
that Section 420 of the IPC was neither ascribed by the Trial
Court nor the Sessions Court. The so-called notebook seized
from the co-accused did not establish the allegations. He
referred to paragraph No.29 of the judgment and order of the
learned Appellate Court and argued that though the Court was
satisfied that there was no satisfactory documentary evidence
on the point of running the Bhisi by the accused, the incorrect
findings were recorded that it was a case exclusively based on
the oral evidence. He tried to argue that this is prima facie
error of law in recording such findings. He also referred to
paragraph No.30 of the judgment of the learned Appellate
Court and vehemently argued that when this notebook Exh.36
was not proved, the conviction had been erroneously recorded.
He referred to paragraph No.19 of the judgment of the Trial
Court and argued that the evidence on the incapacity of the
complainant to pay such huge monthly instalments of the
deposits was erroneously discarded. The witness gave a
material admission that she did not have evidence to prove
4 Cri.Rev.Appln.208-05 & ors.odt
that she withdrew the amount from the bank. There were no
elements of cheating. Bare failing to return the money is not
cheating. The elements of Section 3 of the Act of 1978 were
not proved. The defence of the applicants was not properly
considered that there were enmical term. The collected bond
papers do not refer to the Bhisi. He relied on the case of State
of West Bengal and others Vs. Swapan Kumar Guha and others
; 1982 (1) Supreme Court Cases 561 and argued that there
was absolutely no case to try the accused under the Act of
1978. He has referred to a few paragraphs of the said
judgment and argued that the revision deserves to be allowed.
However, in the alternate, he prayed for the benefit of Section
4 of the Probation of Offenders Act.
4. Learned counsel for the applicants Hirabai and others
adopted the arguments of learned counsel Mr. Ladda on the
law points. However, he has reiterated the arguments of Mr.
Ladda as regards making out the offence under Section 420 of
the IPC. He argued that the charge under Section 406 of the
IPC was not framed. He also prayed for the benefit of the
Probation of Offenders Act.
5. Learned APP for the respondent/State argued that it
was established that the witnesses were the members of the
5 Cri.Rev.Appln.208-05 & ors.odt
Bhisi run and conducted by the accused. The husband of
Subhadrabai was playing an active role in running the scheme.
Both Courts have correctly appreciated the evidence, and there
is no miscarriage of justice due to incorrect appreciation of
evidence. The courts have also discussed about the financial
capacity of the complainant to deposit the money. Section 420
of the IPC and the offences under the Act of 1978 were
established. Therefore, both revision applications deserve to be
dismissed.
6. The case relied upon by the learned counsel for the
applicants was on the allegations of Prize Chits and Money
Circulation Schemes as defined in Section 2(c) of the Act 1978.
However, the facts of the case and averments in the complaint
reveal that it was a "conventional chit" as defined in Section
2(a) of the Act 1978. The said definition reads thus ;
"2. ......
(a) "conventional chit" means a transaction whether
called chit,chit fund, kuri or by any other name by or
under which a person responsible for the conduct of
the chit enters into an agreement with a specified
number of persons that every one of them shall
subscribe a certain sum of money (or certain quantity
of grain in stead) by way of periodical instalments for
a definite period and that each such subscriber shall,
in his turn, as determined by lot or by auction or by
6 Cri.Rev.Appln.208-05 & ors.odt
tender or in such other manner as may be provided for
in the chit agreement, be entitled to a prize amount."
7. It is evident from the facts and the findings recorded by
the respective Courts that the accused were the persons
responsible for the conduct of the chits. There was an auction
practice, and whatever profit was received after the auction, it
was equally distributed among the members. The members
who did not purchase the Bhisi in the auction were entitled to
receive the amount as per the scheme when their turn comes
by a lot or at the end of the term or period of the Bhisi. It was a
monthly subscription by the members. In such a case, the
documentary evidence is not essential. The oral evidence of
the witnesses who suffered financial loss due to the acts of the
applicants may be considered if it inspires confidence.
Therefore, the Court is of the view that believing the oral
version of the witnesses does not make the case bad-in-law in
the absence of any documentary evidence as such.
8. It was a promise made by the applicants that every
member of Bhisi who will subscribed monthly would be
entitled to get it returned when they become entitled to by a
lot or by auction. Normally, the auction is done in such cases
when the person who is a member of the Bhisi does not get it
7 Cri.Rev.Appln.208-05 & ors.odt
by a lot, and if he is in need of money, he purchases the Bhisi
at a lesser amount of his subscription. The applicants accepted
the responsibility for transactions. The applicants were
charging the commission as service charges for managing the
transactions of Bhisi. The applicants had promised and ensured
every member returning their money as per the scheme. It is
just a scheme wherein a few people come together. They
subscribed monthly whatsoever the practice they adopted, and
the members were receiving the money in lumpsum by way of
monthly subscription. The member was to pay or subscribe the
money till the last person received his subscriptions. In simple
words it is a scheme wherein a few persons come together and
subscribe to a certain amount, and by lot or by lottery, they get
the lump sum amount that may help the members meet their
necessities.
9. Section 420 of the IPC is punishable for the offences of
cheating. Section 415 of the IPC define "cheating". It provides
that whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any
property to any person, or to consent that any person shall
retain any property or intentionally induces the person so
deceived to do or omit to do anything which he would not do
8 Cri.Rev.Appln.208-05 & ors.odt
or omit if he were not so deceived, and which act or omission
causes or is likely to cause damage or harm to that person in
body, mind, reputation or property. The Explanation to the
Section provides that a dishonest concealment of facts is a
deception within the meaning of this Section.
10. To hold the person guilty of cheating is defined under
Section 415 of the I.P.C., it is necessary to show that he had a
fraudulent and dishonest intention at the time of making the
promise with an intention to return the property. It also
requires the inducement of such person, delivery of property,
the consent of that person to retain any property intentional
inducement that the person to do or omit to do anything which
he could not do or omit if he were not so deceived and which
act or omission causes or is likely to cause damage or harm to
that person in body, mind, reputation or property.
11. The facts established before the Court by way of
substantial evidence reveal that the applicants accepted the
complainants and other witnesses as members of the Bhisi on
the promise to return their subscription either by way of lottery
or lot or by way of auction. The members were also bound to
subscribe to a monthly subscription till the agreed period ends.
So, every member should get the lump sum amount to which
9 Cri.Rev.Appln.208-05 & ors.odt
they had subscribed. Even a person who purchases the Bhisi in
the auction has to continue to pay the remaining monthly
subscription till the last person gets the money for his
subscription.
12. Both Courts have recorded the findings, which clearly
established that the intentions of the applicants were dishonest
and that with an intention that they returned the money from
the complainant but did not return their subscription. So, the
argument of the learned counsels for the applicants cannot be
accepted that the offence under Section 420 of the IPC., was
not established.
13. As far as the offence punishable under Section 4 of the
Act of 1978 is concerned, as discussed above, it was
established, and hence, both Courts have correctly recorded
the findings that the applicants were guilty of the offences
punishable under Section 4 of the Act of 1978.There was no
error of law in either of the judgments. The case law relied
upon by the learned counsel for the applicants does not apply
as it was dealing with another definition of the money
circulation scheme. The Court does not find any substance in
the revision applications.
10 Cri.Rev.Appln.208-05 & ors.odt
14. The learned counsel for the applicants argued that the
applicants are facing the trial for a long time and are at an
advanced age. Their acts were not intentional. Therefore, the
benefit of the Probation of Offenders Act may be extended to
them. The applicants have been convicted for the offences
punishable under Section 420 of the IPC and Section 4 of the
Act of 1978.
15. Section 4 of the Probation Act is regarding the power of
the Court to release certain offenders on the probation of good
conduct. That Section empowers the Court to grant probation
for offences not punishable with death or imprisonment of life.
The Court has to consider the circumstances of the case,
including the nature of the offence and the character of the
offender. The applicants have been sentenced to suffer R.I. for
one year for the offence of Section 420 of the IPC., and Section
4 of the Act of 1978.
16. The question is whether probation can be granted for the
offences, the accused have been sentenced. The benefit under
Section 4 of the Probation of Offenders Act cannot be claimed
as a matter of right. The word "may" used in Section 4 of the
Act is not to be understood as "must".
11 Cri.Rev.Appln.208-05 & ors.odt
17. The Act of 1978 strictly prohibits chit funds and money
circulations. Section 4 of the said Act provides that in the
absence of special and adequate reasons to the contrary to be
mentioned in the judgment of the Court, the imprisonment
shall not be less than one year, and the fine shall not be less
than one thousand. Even then, the applicants were running
the chit funds and acting as the persons responsible. Their acts
were against the prohibitory law. They have indirectly cheated
the Government. The Sentencing policy is that the accused
found guilty should be adequately punished so that it should
be an eye opener to the other potential offender so that the
similar offences are not committed by any other potential
offenders.
18. The facts and circumstances, including the nature of the
offences, indicate that the applicants had ill intention from the
inception of the scheme. Cheating is a moral turpitude.
Therefore, this Court is of the view that this is not a fit case to
extend the benefit of Section 4 of the Probation of Offenders
Act.
19. The applicants are of advanced age. It seems that the
applicants were from the poor strata of society, and they were
following the long-standing practice of Bhisi. These
12 Cri.Rev.Appln.208-05 & ors.odt
circumstances are the adequate reasons to sentence the
applicants for less than a year. The record reveals that the
applicants were behind bars for ten (10) days after taking into
custody by the First Appellate Court. Therefore, considering
the advanced age of the applicants, their sentence is reduced to
the period they have already undergone. Hence, the following
order :
ORDER
(i) The revision applications are dismissed.
(ii) The impugned judgments of the learned Judicial
Magistrate First Class and First Appellate Court
are confirmed and the sentence is modified. The
corporal sentence is reduced to the period the
applicants have undergone.
(iii) The bail bonds and surety bonds of the applicants
stand cancelled.
(iv) The surety stands discharged.
(v) Rule stands discharged
(vi) R and P should be returned to the concerned
Courts.
(S. G. MEHARE, J.)
...
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