Santosh Prasad @ Santosh Kumar ... vs The State Of Jharkhand
2021 Latest Caselaw 813 Jhar

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI

                      Cr. Revision No. 90 of 2014

     1. Santosh Prasad @ Santosh Kumar Prasad
        S/o Sri Ramendra Prasad
     2. Ramendra Prasad S/o Late Shahdeo Prasad
                                             ...          ... Petitioners
                              -Versus-
     The State of Jharkhand                  ...          ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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                     Through Video Conferencing

CAV 12.11.2020:                             Pronounced on 19.02.2021

1. Heard Mr. Sheo Kumar Singh, learned counsel appearing on behalf of the petitioners.

2. Heard Mr. Suraj Verma, learned A.P.P. appearing on behalf of Opposite Party-State.

3. This criminal revision is directed against the judgement dated 19.12.2013 passed by the learned Additional Sessions Judge-II, West Singhbhum at Chaibasa in Criminal Appeal No. 30 of 2012 whereby and whereunder the judgment of conviction and the order of sentence of the petitioners for the offences under Sections 406/34 and 420/34 of the Indian Penal Code passed by the learned trial court was affirmed and their conviction and sentence under Section 506/34 of the Indian Penal Code was set aside and the appeal was partly allowed, but dismissed on the point of judgment and order of conviction under Sections 406/34 and 420/34 of the Indian Penal Code.

4. The petitioners had preferred the criminal appeal against the judgment of conviction and the order of sentence dated 18.02.2012 passed by the learned Judicial Magistrate, 1st Class, Chaibasa in G.R. Case No. 342 of 2004 / T.R. No. 06 of 2012 (arising out of Noamundi P.S. Case No. 25 of 2004 dated 07.08.2004 whereby and whereunder the petitioners were held

guilty and convicted under Sections 406, 420, 506/34 of the Indian Penal Code and they were sentenced to undergo Rigorous Imprisonment for 03 years each for the offence under Section 406/34 of the Indian Penal Code and were further sentenced to undergo Rigorous Imprisonment for 03 years with a fine of Rs.5,000/- each separately for the offence under Section 420/34 of the Indian Penal Code and in default of payment of fine, they were directed to further undergo Simple Imprisonment for one month each and they were further sentenced to undergo Rigorous Imprisonment for 02 Years each for the offence under Section 506/34 of the Indian Penal Code. It was further directed that all the sentences shall run concurrently and the period of detention already undergone by the petitioners be set off against the term of imprisonment imposed against them.

Arguments on behalf of the petitioners

5. The learned counsel appearing for the petitioners submitted that the learned courts below have not scrutinized the evidence properly, so far as the conviction of the petitioners under Section 420 read with Section 34 of the Indian Penal Code is concerned. He submitted that the basic ingredients of fraudulent intention is totally absent in the present case and as per the evidence, it has come that there was a self-help group created where all the members used to contribute and there were transactions of money amongst them from such contribution and in such circumstances, no case under Section 420 of the Indian Penal Code is made out against the petitioners. The learned counsel further submitted that so far as the offence of criminal breach of trust is concerned, the same is also not made out, in view of the fact that there is no evidence that the money was converted by the petitioner for his own use and accordingly, the basic ingredients of the

offence under Section 405 of the Indian Penal Code is also not made out against them. He further submitted that there is no cogent material on record to suggest that the petitioners were involved in collection and retention of the money, rather there is evidence on record adduced from the side of the prosecution itself to show that monetary transactions between the petitioners and those witnesses were already existing and the witnesses were highly interested witnesses in the case.

6. The learned counsel for the petitioners also submitted that the learned courts below have wrongly convicted Mr. Santosh Kumar (Petitioner No.1) being the son of the co-accused namely, Ramendra Prasad (Petitioner No.2) although Santosh Kumar was not even alleged to be a member of the so-called chit fund group or self-help group. The learned counsel further submitted that the present proceeding was given a criminal colour, although apparently it is a pure civil dispute relating to accounts of the self-help group.

7. The learned counsel for the petitioners further submitted that it has come in the evidence of P.W.-1 that P.W.-1 had given an amount of Rs. 22,000/- to the Petitioner No.2 namely, Ramendra Prasad at the time of marriage of his son and even this amount was not given back by Mr. Ramendra Prasad and accordingly, on account of non-refund of the said amount, the present case has been filed. He also submitted that the impugned judgments are perverse and are fit to be set-aside.

8. The learned counsel for the petitioners also submitted that there is no evidence with regard to sharing of common intention between the Petitioner No.1 Santosh Kumar and the Petitioner No.2 Ramendra Prasad and in absence of such evidence, Santosh Kumar could not have been convicted by taking aid of Section 34 of Indian Penal Code.

9. The learned counsel for the petitioners further submitted that without prejudice to the aforesaid submissions, the petitioners are ready to pay the so-called amount of loss suffered by the Informant and accordingly, he prayed that the appropriate order may be passed in this case modifying the sentence of the petitioners.

Arguments on behalf of the Opposite Party-State

10. The learned A.P.P. appearing on behalf of Opposite Party-

State, on the other hand, opposed the prayer and submitted that there is consistent finding and there is limited scope in revisional jurisdiction to interfere with the finding of facts. He further submitted that there is ample evidence on record that the money was being collected by the petitioners, sometimes by Ramendra Prasad and sometimes by his son Santosh Kumar and they jointly collected money in connection with the chit fund groups created and ultimately, the chit funds were closed in the month of May, 2002 and they misappropriated the amount.

11. The learned counsel further submitted that the number of persons involved in the self-help group are much more than the persons who have come forward for giving evidence and some of the victims of the entire transaction have deposed before the learned trial court giving the details of the money paid by them to the petitioners. He further submitted that the basic ingredients of the offences under Section 420 as well as Section 406 of the Indian Penal Code are fulfilled in the present case and accordingly, no interference is called for.

Findings of this Court

12. After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case, this Court finds that the prosecution case is based

on the typed written report of the Informant Bhagwat Puri alleging inter-alia that Ramendra Prasad (Petitioner No.2), an employee of TISCO, Noamundi floated a chit fund on 01.03.2000 by forming a group of 30 persons in which each member had to deposit Rs.1,000/- per month and the chit fund continued till 21.05.2002. The Informant deposited an amount of Rs.13,720/- to the Petitioner No.2. Similarly, each member deposited his share which amounted to about Rs. 7,00,000/- (Seven Lakhs) and in the meantime, the Petitioner No.2 floated another chit fund scheme on 08.07.2000 in which there were 25 members and each member had to deposit Rs.2,000/- per month and this chit fund continued till 08.05.2002 and the Informant had deposited Rs.18,333/- to the Petitioner No.2 in this chit fund also. Accordingly, other members also deposited their shares and the total amount was about more than Rs. 10,00,000/- (Ten Lakhs). It was alleged that the Informant had also paid Rs.22,000/- in cash. It was further alleged that both the chit funds were closed in May, 2002 and the Petitioner No.2 cheated and misappropriated about Rs. 20,000,00/- (Twenty Lakhs) of the informant and 54 other persons. The Petitioner No.2 used to run the chit funds in association of his son namely, Santosh Prasad (Petitioner no. 1) and Santosh Prasad also has complicity and both the petitioners have cheated and misappropriated the amount. It was further alleged that the Petitioner No.2 had assured the Informant to return his money and the Informant recorded the talks made between them, but the Petitioner No.2 refused to return the amount to any of the members which caused delay in lodging the F.I.R.

13. On the basis of the typed written report, the case was registered as Noamundi P.S. Case No. 25 of 2004 dated 07.08.2004 under Sections 406, 420/34 of the Indian Penal Code

against the petitioners and after completion of investigation, charge-sheet was submitted under Sections 406, 420, 506/34 of the Indian Penal Code and on 12.04.2006, cognizance of the offence was taken against the petitioners under the same sections.

14. On 16.06.2006, charges under Sections 406, 420, 506/34 of the Indian Penal Code were framed against the petitioners under Sections 406/34, 420/34 and 506/34 of the Indian Penal Code which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

15. This Court finds that the prosecution examined altogether 06 witnesses in support of its case. P.W.-1 is Bhagwat Puri who is the Informant of the case, P.W.-2 is Sudhir Prasad Sahu who is the Investigating Officer of the case, P.W.-3 is Omeo Ray, P.W.- 4 is O.S. Chandrasekhar, P.W.-5 is Narayan Prasad and P.W.-6 is Shyam Srihari Bandopadhyaya who is a seizure list witness. P.Ws- 2, 3, 4, 5 and 6 are also the victims of the case.

16. The prosecution also exhibited certain documents as documentary evidence. Exhibit-1 is Production-cum-seizure list, Exhibit-1/1 is signature of P.W.-6 on the seizure list, Exhibit-2 is Certificate of the Informant on Xerox copy of statement regarding collected money for scheme, Exhibit-3 is signature of the Informant on the written report, Exhibit-3/1 is registration endorsement on the written report, Exhibit-4 is the typed written report and Exhibit-5 is the formal F.I.R.. The prosecution has also filed Xerox copy of the statement regarding collection of money from the Informant which has been marked as 'X' for identification.

17. On 27.01.2012, the statements of the petitioners were recorded under Section 313 of Cr.P.C. wherein they simply denied the incriminating evidences put to them and claimed to be

innocent. The petitioners have not adduced any oral or documentary evidence in their defence.

18. This Court further finds that the learned trial court considered the oral and documentary evidences adduced on behalf of the prosecution and summarized its findings in Para-13 of its judgment which reads as under:

"13. I have gone through the entire evidence and material available on the record and I find that all the witnesses found trustworthy in favour of the prosecution case. In this case, F.I.R. and written report are duly proved by the competent witnesses. Informant P.W.-1 and rest eye witnesses P.Ws- 3 to 6 have fully corroborated the occurrence as per prosecution case. They all have corroborated the prosecution story and clearly deposed that both the accused persons dishonestly induced the persons deceived to deliver the money and take it for their own use by misappropriating the money given to them by the Informant and witnesses and after demand, they did not return it back."

19. This Court further finds that the learned appellate court also considered the oral and documentary evidences adduced by the prosecution, considered the arguments of both the parties, analysed the same and recorded its findings in Para-11 and 12 of its judgments which read as under:

"11. ........................... ................................ ................. It is worthwhile to mention that each and every witness has stated about the chit fund run by Ramendra Prasad started by him on 01.03.2000 and 08.07.2000 which was the violation of chit fund act and no permission was obtained by Ramendra Prasad, nor he got registered his chit fund group. ....................... ................. Thus, it is clear that Ramendra Prasad formed a group to run his chit fund after inducement of the members and violated the terms and conditions of the chit fund act. The learned lawyer for the

appellants (petitioners herein) has not been able to establish that Ramendra Prasad had not violated the law of chit fund act. ... .............................. ................................ ........................ After scrutinising the evidences of all the P.Ws., I find that all the witnesses are the members of the group of chit fund and they are all sufferers and affected persons and they suffered loss from the act of appellants, so they cannot be said that they are highly interested. Whatever the question of interest, it is also clear that all these witnesses are sufferers, so they have got interest in this case to get their remedy through this case.

12. I have gone through the entire evidence and material available on the record and I find that each and every witness alongwith Informant have supported the case of the prosecution except regarding Section 506 of the IPC and each and every witness have deposed regarding the occurrence by his own way and they are all trustworthy and they have fully corroborated the occurrence as per prosecution case and it is a clear cut case that the accused Ramendra Prasad and his son Santosh Prasad induced the persons to deliver the money and took it for their own use by misappropriating the money given to them by the Informant and witnesses and after demand, they did not return it back."

20. This Court finds that P.W.-1 is the Informant of this case and in his examination-in-chief, he deposed that the Petitioner No.2, an employee of TISCO, started a chit fund in the month of March, 2000 alongwith 30 members and he was also one of the members in the group and the rest 29 members were Omeo Ray (P.W.-3), S.K. Majumdar, Hari Singh, Chatu, Kalinga, etc.. He further deposed that as per rule of chit fund, each member had to pay Rs.1,000/- per month and he paid since March to every month for the date fixed as 21st and he deposited the amount till 2002, total worth Rs. 13,700/- and the rest members

also deposited the money and the Petitioner No.2 collected the money from all and his son Santosh Prasad (Petitioner No.1) helped him. He further deposed that by inspiring the success of first chit fund, they started second chit fund alongwith 25 members and he was one of them and he paid Rs.2,000/- per month, total worth Rs.18,333/- till 2002. He further deposed that he got loss of Rs.32,000/- from both chit funds and these chit funds were started for the help of the members, but its aim was deviated and the Petitioner No.2 fraudulently misappropriated the money of the members. He further deposed that he demanded the money back from the Petitioner No.1 who assured him for the same, but he did not return and he recorded the assurance of the Petitioner No.2 and handed over the tape to the police on 07.08.2004. He claimed to identify the petitioners in the trial court.

21. This Court further finds that P.W.-3, P.W.-4, P.W.-5 and P.W.-6 were also the members of the chit funds and they had also invested money in the chit funds which were misappropriated by the petitioners. All these witnesses are the victims at the hands of the petitioners and they have fully corroborated the version of the Informant and the prosecution case.

22. The arguments of the learned counsel appearing for the petitioners that the basic ingredients of fraudulent intention for constituting offence under section 420 IPC as well as basic ingredients for offence under section 406 IPC are totally absent in the present case, is devoid of any merits.

There is consistent finding that the chit funds were created by the petitioner no. 2 and the money was being collected by petitioner no. 1 and 2 and abruptly the chit funds were closed in the month of May 2002 without giving the money to the participants of the chit fund including the informant and other victims some of them have deposed as witnesses and

supported the prosecution case. There is finding by the learned courts below, after due appreciation of the evidences on record that it is a clear-cut case that the accused Ramendra Prasad and his son Santosh Prasad induced the persons to deliver the money and took it for their own use by misappropriating the money given to them by the Informant and witnesses and after demand, they did not return it back. Merely because there was a self-help group created where all the members used to contribute the same by itself does not absolve the petitioners fromthe offence. The learned counsel for the petitioners has not pointed out any material to show that there were transactions of money amongst the members from such contribution and otherwise also the prosecution has led enough evidence to establish the case under sections 406 and 420 IPC beyond all reasonable doubts. Further merely because there is no evidence that the money was converted by the petitioners for their own use is not sufficient to absolve the petitioners from the offence under section 406 IPC as the basic ingredients of the said offence has been proved by the prosecution. The argument that there is no cogent material on record to suggest that the petitioners were involved in collection and retention of the money, is also devoid of any merits considering the evidences of the informant and other victims of the case who have been thoroughly cross- examined by the defence. The argument of the petitioners that the matter arises out of a pure civil dispute relating to accounts of the self-help group, is also rejected as the basic ingredients of the offence for which the petitioners have been ultimately convicted are fully satisfied in the instant case.

23. This Court finds that all the prosecution witnesses have fully supported the prosecution case and the documentary evidences have corroborated the oral evidence of the case. This

Court is of the considered view that the prosecution has been able to prove the case against the petitioners beyond all reasonable doubt, so far, the conviction and sentence of the petitioners for the offences under Sections 406/34 and 420/34 of the Indian Penal Code are concerned.

24. This Court finds that the judgments passed by the learned courts below are well-reasoned judgments, so far, the offences under Sections 406/34 and 420/34 of the Indian Penal Code are concerned, and there being no perversity or illegality in the judgments to such extent, this Court, under revisional jurisdiction, does not find any reason to interfere with the impugned judgments passed by the learned courts below.

25. Accordingly, the conviction and sentence of the petitioners for the offences under Sections 406/34 and 420/34 of the Indian Penal Code passed by the learned courts below are upheld and this criminal revision petition is hereby dismissed.

26. Interim order, if any, stands vacated.

27. Bail bond furnished by the petitioners is hereby cancelled.

28. Pending interlocutory application, if any, is dismissed as not pressed.

29. Let the lower court records be immediately sent back to the court concerned.

30. Let a copy of this order be communicated to the learned court below through "email/FAX".

(Anubha Rawat Choudhary, J.) Binit/mukul-