Himachal Pradesh High Court
Between vs State Of H.P on 13 August, 2021
Bench: Sureshwar Thakur
Reserved on:- 6th August, 2021.
Reportable
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
ON THE 13TH DAY OF AUGUST, 2021
BEFORE
.
HON'BLE MR. JUSTICE SURESHWAR THAKUR
CRIMINAL REVISION No.126 of 2010
ALONG WITH
CRIMINAL REVISION NO.117 of 2010.
1. CRIMINAL REVISION No. 126 of 2010.
Between:-
SH. KAMALJEET SINGH SON OF
SHRI KRISHAN SINGH,
PROP. M/S SHIVA FUN WORLD DHUNGARI,
PO MANALI, TEHSIL MANALI,
DISTRICT KULLU, H.P.
..... PETITIONER.
(BY MR. NAVEEN K. BHARDWAJ, ADVOCATE)
AND
1. STATE OF H.P.
2. STATE BANK OF INDIA,
BRANCH OFFICE AT MANALI,
TEHSIL MANALI,
DISTRICT KULLU, H.P.
.....RESPONDENTS.
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...2...
.
(MR. HEMANT VAID, ADDITIONAL
ADVOCATE GENERAL WITH MR
VIKRANT CHANDEL, DEPUTY
ADVOCATE GENERAL AND MR.
GAURAV SHARMA, DEPUTY
ADOVCATE GENERAL FOR
RESPONDENT No.1 AND MR.
ARVIND SHARMA, ADVOCATE, FOR
RESPONDENT No.2. )
2. CRIMINAL REVISION No. 117 of 2010.
Between:-
DEVIKA SOOD WIFE OF
RAKESH SOOD,
RESIDENT OF AKHARA BAZAR, KULLU,
TEHSIL AND DISTRICT KULLU, H.P.
..... PETITIONER.
(BY MS. SHEETAL VYAS, ADVOCATE)
AND
1. STATE BANK OF INDIA,
BRANCH OFFICE MANALI,
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THROUGH ITS BRANCH MANAGER.
.
2. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY HOME,
TO THE GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-171002.
.....RESPONDENTS.
HEMANT
VAID,
(MR. ARVIND SHARMA, ADVOCATE,
FOR RESPONDENT No.1 AND MR.
ADDITIONAL
ADVOCATE GENERAL WITH MR
VIKRANT CHANDEL, DEPUTY
ADVOCATE GENERAL AND MR.
GAURAV SHARMA, DEPUTY
ADOVCATE GENERAL FOR
RESPONDENT No.2 )
These Criminal Revisions coming on for orders this
day, the Court passed the following:-
JUDGMENT
Accused Kamaljeet Singh, Sardool Singh, Ram Lal,
and, accused Devika Sood, all became charged for commission
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.
of offences constituted under Section 406, and under Section
420 of the IPC, read with Section 120-B, IPC. The learned trial
Court, through a verdict made, upon, Criminal Complaint No.
100-1 of 2003/40-III of 2004, on 1.12.2006, made an order of
acquittal, vis-a-vis, co-accused Sardool Singh and Ram Lal, given
theirs being the guarantors of the loan amount.
through the afore verdict, the learned trial Court recorded
r However,
findings of conviction against co-accused Kamaljeet, for charges
drawn under Section 406, and, under Section 420 of the IPC,
besides through the afore verdict, the learned trial Court also
recorded findings of conviction against co-accused Devika Sood,
for charges drawn under Section 420 of the IPC. Consequently,
through a separate order made on 1.12.2006, the learned trial
Court sentenced co-accused Kamaljeet Singh to undergo
rigorous imprisonment for a period of six months, and, to pay a
fine of Rs.5,000/-, and, in default of payment of fine amount he
stood sentenced to undergo simple imprisonment for a period
of one month, for, commission of an offence punishable under
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.
Section 406 of the IPC. He was further sentenced to undergo
rigorous imprisonment for a period of one year and to pay a fine
of Rs.5,000/-, and, in default of payment of fine amount, he
stood sentenced to undergo simple imprisonment for a period
of one month, for the commission of an offence punishable
under Section 420 of the IPC. Convict Devika Sood, stood
sentenced to undergo rigorous imprisonment for a period of
one year, and, to pay a fine of Rs.5000/-, and, in default of
payment of fine amount, she stood sentenced to undergo simple
imprisonment for a period of one month, for commission of an
offence punishable under Section 420 of the IPC.
2. The verdict made by the learned trial Court became
assailed by the convicts before the learned Appellate Court. The
learned Appellate Court through a common verdict made on
31.03.2010 upon, Cr. Appeal No. 37 of 2006, and, upon, Cr.
Appeal No. 1 of 2007, affirmed both the verdict of conviction,
and, the consequent therewith sentences (supra) imposed upon
the convicts hence by the learned trial Court. Consequently, the
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.
accused/convicts rear a grievance, and, for redressing their
grievances, they rear, the extant criminal revision petitions
before this Court.
3. Brief facts, necessary for the disposal of the present
criminal revision petitions are that complainant-State Bank of
India, through its Branch Manager, Manali Barnch, filed a
complaint under Sections 406, 420 read with Section 120 of the
IPC, against the petitioners and one Surdool Singh, and, Ram Lal.
The perusal of the complaint unfolds that the complainant
alleged that accused Kamaljeet Singh, who at the relevant time,
was proprietor of Shiva Fun World, Dhungri, Manali, approached
the bank for a term loan facility of Rs. 4,19,200/-, for purchasing
Softy making Machine and Sardool Singh and Ram Lal stood as
guarantors to him. After completing the formalities, term loan
was granted in favour of accused Kamaljeet Singh on 24.06.2002
by the Bank. It is further case of the complainant that as per the
invoice submitted by accused Kamaljeet Singh, a demand draft
No.286512 dated 24.06.2002 for Rs.5,59,350/- favouring U.D.
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.
Departmental Stores, Katra Dula, Amritsar, payable at SBI
Branch at Amritsar was handed over to accused Kamaljeet Singh
against acknowledgement. The bank officials thereafter visited
the premises of accused Kamaljeet Singh and found that the
machine has not been installed, whereas, it was stipulated in the
term loan that machine would be installed within a period of
one month from the date of disbursement of the loan. The
matter was reported to the police but the police refused to lodge
the report against the accused. It is further case of the
complainant that one current account was opened in Union
Bank of India, Kullu, District Kullu by accused Devika Sood in the
name of M/s U.D. Departmental Stores, as Proprietor and on
27.2.2002, the amount of the draft was credited to the account.
Lateron, Devika Sood accused on 4.7.2003 has withdrawn
Rs.1,25,000/- and also transferred Rs.4,20,000/- to the State
Bank account of Rakesh Sood. On the afore averments, the
complaint was filed before the learned trial Court.
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4. The learned trial Court after framing charge(s)
against the accused, and, upon perusal of the evidence on
record, had drawn the hereinafter inferences, as, become
echoed in paragraph No.14 of its verdict:-
"14. Close scrutiny of the entire evidence led by the
complainant and defence i.e. oral as well as documentary
in order to prove their respective claims coupled with the
contention of the learned counsel for the parties are
discussed as under:-
(i) At the very outset, it may be observed that there is
no iota of evidence on record against accused No.2
in the offence for which they have been charged
except that they were guarantors to accused No.1 in
the loan case and as CW-1 Amar Singh has also
admitted in his cross-examination by accused No.2
and 3 that accused have not committed any
offence, it is safe to hold that the complainant has
failed to prove its case against accused No.2 and 3.
(ii) So far as the offence of criminal breach of trust by
accused No.1 and 4 are concerned as it is the case
of complainant that the draft was handed over to
accused No.1 by hand and even the loan was also
sanctioned in his favour and not to accused No.4,
in my opinion accused No.4 cannot be said to have
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committed criminal breach of trust, though there is
.
sufficient evidence on record against accused No.1
that he committed criminal breach of trust by
misappropriating the draft amount by not
presenting the same as per the terms and conditions
settled by him with the complainant bank. In his
statement recorded under Section 313 of the
Cr.P.C., accused No.1 has categorically admitted
the sanctioning of term loan of Rs.4,19,000/- for
purchase of softy machine after the submission of
loan application, interview form, invoice copies of
which are Ex.CW1/A to Ex.CW1/C by him before
the complainant bank. Nont only this, he further
admitted that draft No.286512 dated 24.6.2002 for
sum of Rs. 5, 59, 350/- favouring M/s U.D.
Departmental Store, Katra Dulo, Amritsar was
handed over to him and he acknowledged the same
on Ex.CW1/D which fact has otherwise been
proved on record from Ex.CW1/D where accused
No.1 had put his signatures after receiving the
draft. Thus, when it is proved on record that the
complainant bank sanctioned the term loan on the
submission of proforma invoice by accused No.1
which was issued by U.D. Departmental Store
Katra Dulo, Amritsar and the draft was also
handedover to accused No.1 by the complainant
bank to prsent the same as per proforma invoice i.e.
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U.D. Departmental Store Katra, Dulo, Amritsar,
.
but the same was not presented in the said bank nor
accused No.1 has installed the softy Machine uptill
today nor there is any explanation by accused No.1
how the draft No.286512 which was issued in the
name of U.D. Departmental Store Katra Dulo
Amritsar as per the agreement by the accused with
the complainant bank was presented in the Union
Bank of India Branch, Kullu, it is clear that
accused No.1 in connivance with accused No.4
presented the said draft in the Union Bank of India
Branch, Kullu, in violation of law and the accused
No.1 Kamaljeet has committed criminal breach of
trust with the complainant bank.
(iii) So far as the commission of offence of cheating is
concerned, it is further proved on record from the
oral as well as documentary evidence as discussed
above that accused No.1 and 4 cheated the
complainant bank by opening account in the Union
Bank of India in the name of U.D. Departmental
Store Bhutti and after presenting the draft in
question before the Union Bank of India, Kullu, go
the same collected from SBI Amritsar and
thereafter mis-appropriated the draft amount by
withdrawing and transferring the same which fact
has been proved by CW-2 Rakesh Kumar, who has
proved the copies of documents Ex.CW2/A to
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Ex.CW2/D. The learned defence counsel
.
representing accused No.4 contended with
vehemence that as it is proved on record that
accused No.4 was already having joint account
with Smt. Usha Sood as is clear from the statement
of DW-1 Subhash Thakur, who proved copy of
account opening form Ex.DW1/A, there is no
question of opening of another account by U.D.
Departmental store through its partner Devika
Sood at Union Bank of India, Kullu. But there is
no force in the contention of learned defence
counsel as there is no bar of opening number of
account in different banks and it cannot be said that
as Devika Sood was already having account in
K.C.C. Kullu she could not open another account at
Union Bank of India, Kullu, in case she wants to
commit cheating with any person. Even the
contention of learned defence counsel representing
accused No.4, that Devika Sood never opened any
account in Union Bank of India, Kullu nor she
opened any account in the said bank nor she
presented the draft to the said bank is falsified from
the documentary evidence on record, proved by
CW-2, Rakesh Kumar who has categorically stated
in his statement that the draft was presented by
U.D. Departmental Store and as per his record Smt.
Devika Sood is the Proprietor of U.D.
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Departmental Store Bhutti Colony, Shamshi which
.
fact is also clear from account opening form
Ex.CW2/A which bears the signatures of accused
No.4 and the copy of declaration from Ex. CW2/B,
copy of specimen signatures, Ex.CW2/C appears to
be same as on the admitted account opening form
Ex.DW1/A proved by accused NO.4 in her
defence. Further it is also clear from Ex. C-A,
copy of ledger that draft in question was presented
in the Union Bank of India, Kullu by U.D.
Departmental Store to be collected from SBI,
Amritsar and further the copy ledger Ex.CW2/D
does not leave any scope for the innocence of
accused No.4, as it is clear from this record that
Smt. Devika Sood partner/Director of U.D.
Departmental Store has first get the draft amount of
Rs.5,59,350/-, transferred in her account and
thereafter withdrawn the amount of Rs. 1,25,000/-
herself, and transferred Rs.4,20,000/- in the name
of other person and the said account was singly
operated by her. Thus in this manner it is clear on
record that accused No.1 and 4 in connivance with
each other cheated the compliant bank as discussed
above."
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.
5. Neither the State of Himachal Pradesh nor the
complainant, has instituted any appeal challenging the verdict of
acquittal pronounced, vis-a-vis, accused Sardool Singh and Ram
Lal, by the learned trial Court, given theirs being guarantors of
the borrowings made by co-accused Kamaljeet Singh from the
financial institution concerned, i.e. State Bank of India, Branch
Office at Manali. Consequently, the afore verdict of acquittal
pronounced, vis-a-vis, accused Sardool Singh and Ram Lal, by
the learned trial Court on 1.12.2006, has acquired conclusivity
and finality.
6. The relevant discussion as made by the learned trial
Court, after its appraising the entire documentary, and, oral
evidence, adduced before it, does reveal, that the prosecution
case is completely dependant upon documentary evidence.
7. In proof of the prosecution case, CW-1 Amar Singh,
Manager, State Bank of India, Manali has stepped into the
witness box. During the course of his making his deposition, he
in his examination-in-chief, hence proved loan application
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comprised in Ex.CW-1/A, as preferred by accused Kamaljeet
Singh before the bank concerned. He has also proved Ex.CW1/C,
exhibit whereof, comprises the proforma invoice of softy
machine issued by U.D. Departmental Store Katra Dulo,
Amritsar. He has also deposed that term loan of Rs.4,19,000/-
was sanctioned in favour of principal accused Kamaljeet Singh
for purchase of Softy Machine, and, thereafter draft of
Rs.5,59,350/- of 24.06.2002, was issued in favour of accused
No.1, through letter Ex.CW1/D, letter whereof bears the
signatures of accused No.1. He continued to testify that despite
the borrowing made by principal co-accused Kamal Jeet Singh,
for the afore specified purpose, yet the Softy Machine has
remained uninstalled by him, in the premises concerned.
Moreover, he has also proved the complaint as made to the
police and, as becomes comprised in Ex.CW1/E. He has, in his
examination-in-chief, deposed that accused Kamaljeet Singh in
connivance with co-accused Devika Sood, both opened an
account in the Union Bank of India, Branch Kullu, rather in the
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name of M/s U.D. Departmental Store, and, the draft amount
was transferred in the said account, whereafter , accused Devika
Sood, withdrew or transferred the afore amount. He has echoed
in his examination-in-chief, that accused Kamaljeet Singh and
accused Devika Sood, entered into a criminal conspiracy to
commit the offences constituted under section 406 and under
Section 420 of the IPC, read with Section 120-B of the IPC. In
cross-examination, he has deposed with completest firmness,
that on inquiry from the bank at Amritsar, he became apprised
that the draft amount has been collected through, the, apposite
bank at Kullu. He has deposed that the draft amount was rather
validly payable only to the U.D. Departmental Store, Katra
Amirtsar.
8. From a reading of the testification made by CW-1, it
is apparent that the borrowings, as made by the principal co-
accused Kamaljeet Singh, were for a specific purpose, and, the
afore purpose remained never accomplished by co-accused
Kamaljeet Singh. Contrarily it is crystal clear from a wholesome
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reading of the testification of CW-1, that even through the draft
amount was transferred to the account U.D. Departmental Store,
Bhutti. However, after the draft amount as had entered into the
account(s) of the afore, it became withdrawn by the principal
accused Kamaljeet Singh from the bank at Amritsar, whereafter
the amount carried therein became collected through the bank
at Kullu, and, it is also categorically clear, from a reading of his
deposition, that the draft amount was subsequently transferred
or remitted into the accounts of one Devika Sood. Therefore, it
is crystal clear that both co-accused Kamaljeet Singh and co-
accused Devika Sood hence entered into a criminal conspiracy,
through creating a fictitious firm, in asmuch, as, U.D.
Departmental Store, Bhutti, hence bearing a monemclature
almost similar to U.D. Departmental Store, Katra Dulo, Amritsar,
into whose account the draft amount was rather to validly enter.
Consequently, both the afore co-accused committed the
offence(s) in respect whereto they became convicted, and, also
hence valid consequent therewith sentences became imposed
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.
upon each, through an order drawn by the learned trial Court,
on 1.12.2006.
9. The testimony as made by CW-1, has been meted
completest corroboration, through the testimony rendered by
CW-2, one Rakesh Kumar, Assistant Manager Union Bank of
India, Kullu. In his testification, he has echoed, that on 27th June,
2002, one account was opened by Devika Sood, Proprietor, U.D.
Departmental Store, and, thereafter draft bearing No. 286512,
as, is the draft amount mentioned in Ex.CW1/D, came for
collection in his bank, and, became encashed from SBI, Amritsar.
He proved from the originals, the copies of Ex.CW2/A to
Ex.CW2/D. In his cross-examination, he has deposed that the
draft was payable at Amritsar, and, that the account opened by
Devika Sood, as, Proprietor, U.D. Departmental Store, Bhutti,
Kullu, rather became the invalid receipt of the draft amount.
10. A reading of the deposition of CW-2, unfolds, that
he has made echoings in his testification, making rather
completest corroboration with the testification made on oath by
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.
CW-1, and, does also made candid bespeakings, that the draft
amount was never entered into the account of the entity in
whose accounts it was to be validly remitted, inasmuch, as, it did
not come to be remitted to the account of U.D. Departmental
Store, Katra Dulo Amritsar, rather it invalidly entered into the
account of co-accused Devika Sood, through, the latter opening
an account in Union Bank of India, Kullu, in the name of U.D.
Departmental Store, Bhutti, Kullu being its Proprietor.
Therefore, both the accused ensured, that the purpose of the
borrowings made by accused Kamaljeet Singh, comprised in the
softy machine being installed in the premises concerned,
becomes completely defeated. Consequently, both the accused
did provenly commit the offence(s) for which they became
concurrently convicted, and, sentenced by both the learned
courts below.
11. For the reasons which have been recorded
hereinabove, this Court holds that both the learned Courts
below have appraised the entire evidence, on record, in a
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wholesome and harmonious manner, apart therefrom, the
analysis of the material, on record, by both the learned Courts
below, hence, also does not suffer from any gross perversity or
absurdity of mis-appreciation, and, non appreciation of germane
thereto evidence, on record.
12.
Consequently, there is no merit in the extant criminal
revision petitions, and, both are dismissed accordingly.
r The
judgment impugned before this Court is affirmed. All pending
applications also stand disposed of. Records be sent back
forthwith
(Sureshwar Thakur)
Judge
13th August, 2021.
(jai)
