Jharkhand High Court
Smt. Sharda Mishra vs The State Of Jharkhand on 4 October, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 942 of 2012
1. Smt. Sharda Mishra, W/o Late Surendra Nath Mishra
2. Binay Prakash Mishra, S/o Late Surendra Nath Mishra
Both resident of Plot No. 48, Co-operative Colony, Bokaro Steel
City, P.O. & P.S. Bokaro Steel City, District Bokaro
... ... Petitioners
-Versus-
The State of Jharkhand ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Manish Kumar, Advocate
For the Opp. Party : Mr. Sardhu Mahto, A.P.P.
Through Video Conferencing
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C.A.V. On 31.08.2021 Pronounced on 04.10.2021
1. Heard Mr. Manish Kumar, learned counsel appearing on
behalf of the petitioners.
2. Heard Mr. Sardhu Mahto, learned counsel appearing on behalf
of the opposite party-State.
3. This criminal revision application has been filed against the
order dated 14.09.2012, passed by learned Sessions Judge,
Bokaro in Criminal Appeal No. 09 of 2012, convicting the
petitioner No.2 under Section 420/34 of the Indian Penal Code
and acquitted them for the offence under Sections 406/417 of
the Indian Penal Code. The appellate court released the
petitioner No. 1 on admonition under Section 3 of the
Probation of Offenders Act, 1958 and sentenced the petitioner
No. 2 for simple imprisonment for six months and fine of Rs.
5,000/- and in the event of default of payment of fine, he has
been directed to undergo simple imprisonment for a further
period of one month.
4. The learned trial court vide Judgment of conviction and the
order of sentence dated 17.12.2011, passed in G.R. Case No. 297
of 2001 / T.R. No. 1491 of 2011 had convicted the petitioners
under Section 406/34 and 417/34 of the Indian Penal Code and
sentenced them to undergo simple imprisonment for one year
for the offence under Section 406/34 of the Indian Penal Code
and also sentenced to undergo simple imprisonment for six
months for the offence under Section 417/34 of the Indian
Penal Code and both the sentenced were directed to run
concurrently.
Arguments on behalf of the petitioners
5. Learned counsel for the petitioners has submitted that the
impugned judgment of conviction of the petitioner No.-2
under Section 420/34 of the Indian Penal Code is not
sustainable in the eyes of law, as appropriate questions were
not put to the petitioner No.-2 under Section 313 of Cr.P.C. and
therefore, the material regarding basic ingredient for offence
under Section 420/34 of IPC was not put to the accused. He
submits that in such circumstances, conviction of the petitioner
No.-2 under Section 420/34 of IPC is perverse and is fit to be
set-aside. He has also submitted that so far as petitioner No.-1
is concerned, the learned appellate court had extended her the
benefit of Probation of Offenders Act, but had illegally refused
to extend the same benefit to the petitioner No.-2 (son of
petitioner No.-1). He also submits that the petitioner No.-2 has
been convicted and sentenced to undergo simple
imprisonment for a period of six months for offence under
Section 420/34 of IPC and he has remained in custody in
connection with the present case during the pendency of the
revision petition for a period from 05.04.2013 to 03.05.2013. The
learned counsel has also submitted that the FIR is dated
11.04.2001 and more than 20 years have elapsed from the date
of the incident. He submits that on the date of conviction i.e.,
17.12.2011, the petitioner No.-2 was 38 years of age and
accordingly, the present age of the petitioner No.-2 is about 48
years. He submits that the petitioners do not have any
previous conviction. The learned counsel submits that
considering the facts and circumstances of this case and the
sentence of petitioner No.-2, some sympathetic view may be
taken and sentence be modified to the period already
undergone by him in custody.
6. The learned counsel has relied upon the judgments passed by
the Hon'ble Supreme Court reported in (2007) 6 SCC 231
(Manjappa vs. State of Karnataka) as well as the judgment
reported in (2012) 3 SCC 221 (Roy Fernandes vs. State of Goa
and Ors.) on the point of sentence.
7. The learned counsel submits that the total amount which is
alleged to have been taken by the petitioners from the
informant was an amount of Rs. 2,25,000/-, which was sought
to be returned by issuing the cheques, but those cheques had
ultimately bounced as per the evidence on record.
Arguments on behalf of the opposite party-State
8. Learned counsel appearing on behalf of the opposite party-
State, on the other hand, has submitted that there are
concurrent findings recorded by the learned courts below, so
far as conviction of the petitioner No.-2 under Section 420/34
of IPC is concerned. He also submits that the arguments of the
petitioners, that proper questions were not put under Section
313 of Cr.P.C. to the petitioner, has also been considered by the
learned appellate court and the plea has been rejected by a
well-reasoned judgment. The learned counsel has referred to
the Statement of the petitioner No.-2 under Section 313 of
Cr.P.C. to submit that the materials which had come during
evidence in order to constitute offence under Section 420/34 of
IPC were duly put to the petitioner.
9. So far as the sentence is concerned, the learned counsel
submits that it is for the court to pass appropriate order.
However, it is not in dispute that more than 20 years have
elapsed from the date of FIR.
Findings of this Court.
10. As per the case of prosecution, the informant was in need of a
shop for doing business, for which he went to the house of the
petitioner No.-1 and met her and her son petitioner No.-2. The
petitioners told that one room of their house was vacant, for
which they demanded Rs. 208,000/- as advance security and
Rs. 1300/- per month as rent. Because of urgent need of shop,
informant was ready to give Rs. 2,25,000/- as an advance
money and advance rent, in that course, informant gave
Cheque of Rs. 2,08,000/- and Rs.17,000/- in cash. After
receiving money, petitioners executed agreement on
15.11.2000, on which petitioner No.-2 put his signature as a
witness but the shop was not handed over to the informant, for
which the informant approached the petitioners several times.
On repeated demand of returning the money, petitioner No. 2
gave three cheques for total sum of Rs. 2,25,000/- which
ultimately bounced. The informant gave information to the
petitioners and sent legal notice on 15.03.2001, but the
petitioners neither paid the cheque amount nor replied to the
legal notice.
Thus, the allegation is that by giving false assurance of
handing over the shop on rent, the petitioners took a sum of
Rs. 2,25,000/- from the informant and cheated him as neither
the shop was given nor the money was refunded and
accordingly the petitioners fraudulently obtained the amount
from the informant.
11. The informant lodged the F.I.R. against the petitioners and on
the basis of written report of the informant, B.S. City, P.S. Case
No. 61/01 dated 11.04.2001 was registered under Sections 406,
419, 420, 467, 468/34 of the Indian Penal Code. After
investigation, charge sheet was submitted under the aforesaid
Sections on 31.07.2001 and cognizance was also taken under
the same Sections on 25.08.2001. On 21.01.2004, charge was
framed under Sections 406/34, 419/34, 420/34, 467/34, 468/34
of the Indian Penal Code which was explained to the
petitioners to which they pleaded not guilty and claimed to be
tried. On 23.03.2009, statements of the petitioners were
recorded under Section 313 Cr. P.C. in which they denied the
occurrence and claimed themselves to be innocent.
12. In support of its case, prosecution has examined altogether five
witnesses, namely, P.W. 1, Chandrika Prasad Yadav, P.W. 2,
Uday Narayan Singh @ Uday Kumar Singh, P.W. 3-Pramod
Kumar Pandey, P.W. 4-Ashok Kumar Pandey, informant of the
case and P.W. 5-Ramkhelawan Paswan, the investigating
officer of the case.
13. The prosecution has produced altogether 10 documentary
evidences before the learned court below including Ext.-4
photocopy of the agreement dated 15.04.2000, Ext.-6 carbon
copy of legal notice dated 15.03.2001, and Ext.-7 registry
receipt dated 15.03.2001. Ext.-1 is the report of Branch Manager
to O/C B.S. City Police Station; Ext.-3 is the receiving receipt
dated 17.07.2000, which was for a sum of Rs. 2,08,000/- signed
by accused-Vinay Prakash Mishra; Ext.-8 is the written report;
Ext.-9 is the signature of Branch Manager on application of I/O
Ram Kelawan Paswan; Ext.-9/1 is the signature of O/C Javed
Mahmood on endorsement of written report; and Ext.-10 is the
formal F.I.R.
Ext.-2 is the counterfoil of cheque No. 5918830 amounting to
Rs. One Lakh; Ext.-2/1 is the counterfoil of the cheque No.
5918831 amounting to Rs. One Lakh; Ext.-2/2 is the counterfoil
of the cheque No. 5918833 amounting to Rs. 8,000/-; Ext.-5 is
the cheque dated 15.01.2001 amounting to Rs. One Lakh; Ext.-
5/1 is the cheque dated 16.01.2001 amounting to Rs. One Lakh;
and Ext.-5/2 is the cheque dated 17.01.2001 amounting to Rs.
25,000/-.
14. Ext.-X is the photocopy of balance sheet of account of the
informant. Ext.-Y is the photocopy of objection form. Ext. X-1 is
the Carbon copy of Jimanama. Ext. X-2 is the photocopy of
production-cum-seizure list.
15. The defence has not produced any oral evidence, but has
produced certain documentary evidence. Ext.-A is the certified
copy of the complaint petition No. 62/2001; Ext.-B is the
certified copy of the order dt. 13.03.2001 of C.P. Case No.
62/2001 and Ext.-B/1 is the order sheet dated 14.03.2001 to
22.08.2008 of C.P. Case No. 62/2001. As per the defence case,
the present case was the counter to the Complaint Case No.
62/2001 filed on 02.03.2001 by the petitioner No.-2 against the
informant and three others for offence under Sections 323, 341,
379, 426, 420, 384 and 120-B of the Indian Penal Code. As per
the said case, the petitioner No.-2 had handed over three
cheques to the complainant of the case as a friendly loan for a
sum of Rs. 2,25,000/- on the condition that one Indira Vikas
Patra will be handed over as a security to him and when the
security was not given, he demanded back his cheque, for
which he was assaulted.
16. Upon perusal of the Ext.-B/1 i.e., the order sheet dated
14.03.2001 to 22.08.2008 of C.P. Case No. 62/2001, the
summons in the complaint case was directed to be issued vide
order dated 10.04.2001 and the required steps for process was
taken on 11.04.2001 by the complainant of the said case.
17. The learned trial court considered the alleged offence under
Section 406 of the IPC and after scrutinizing the materials on
record held as under: -
"Thus, after going through the evidence material available on
the case record, I find, that the informant and rest of the
witnesses have fully supported the prosecution case
corroborating this fact that accused persons have taken
money from the informant and assured him to give a room for
the purpose of business. On their assurance, informant gave
them cheque of Rs. 2,08,000/- (Two lac eight thousand) and
17,000/- (seventeen thousand) in cash, but in spite of
receiving money, they neither handed over him the shop nor
returned money, when the informant demanded his money,
they gave him fake cheque, which was dishonoured. Thus, I
find, that accused persons have dishonestly misappropriated
that money to his own use, which was entrusted to him.
Thus, I come to the conclusion that all the witnesses have
fully supported the prosecution case. There is no
contradiction in their evidence rather they have corroborated
the fact of misappropriation of money of the informant, which
was entrusted to the accused persons. Thus, I come to the
conclusion that the prosecution has been able to prove the
allegation u/s 406/34 I.P.C against the accused persons
beyond the shadow of all reasonable doubts. Hence, the
accused persons are found guilty u/s 406/34 I.P.C."
18. The learned trial court considered the allegation under
Sections 419 and 420 of the IPC and recorded its finding as
under: -
"Thus, after going through the evidence material available on
the case record, I find, that the informant and rest of the
witnesses have fully supported the prosecution case and
corroborated this fact that the accused persons have
committed cheat but they have not stated even a single word
about the cheating by impersonation and on perusal of
testimony of all the P.Ws, I also find that although
ingredients of section 420 has not been proved by prosecution
beyond all the reasonable doubts but prosecution has been
able to prove the allegation u/s 417 I.P.C that the accused
persons have deceived the informant and also induced him to
deliver the money to them for the said shop, which they did
not hand over to him. Thus, the accused persons cheated the
informant. As such, I come to the conclusion that the
prosecution has failed to prove the allegation u/Ss 419, 420
I.P.C against the accused but the prosecution has succeeded
and has been able to prove the allegation u/s 417/34 of I.P.C
against the accused persons beyond the shadow of all
reasonable doubts. Hence, the accused persons have not been
found guilty u/Ss 419, 420 I.P.C but they have been found
guilty u/s 417/34 I.P.C."
19. The learned trial court found that the prosecution has failed to
prove the allegation against the accused persons for offence
under Sections 467 and 468 of IPC and accordingly, acquitted
the petitioners. The learned trial court convicted the petitioners
for offence under Sections 406/34 and 417/34 of IPC and
sentenced them to undergo simple imprisonment for one year
under Section 406/34 of IPC and to undergo simple
imprisonment for six months under Section 417 of IPC. Both
the sentences were directed to run concurrently.
20. Considering the materials on record, the learned appellate
court recorded that the agreement, as such, was not denied in
the defence at the trial stage and only at the appellate stage, it
has been denied and considering the evidences on record, the
appellate court was of the view that under the circumstances
only for the reason that the agreement was not formally
proved, it cannot be inferred that it has not been formally
proved. The learned appellate court was of the considered
view that there had been a rent agreement between the parties.
21. While considering the point as to whether any advance was
paid pursuant to the rent agreement or not, the learned
appellate court recorded the following findings:
"The prosecution adduced its definite evidence, oral and
documentary regarding payment of advance of Rs. 2,08,000/-
by fact and Rs. 17,000/- in cash. At any point of time, the
defence has not been taken, that this amount was not paid.
None of the witnesses have been given the suggestion that
cheque was not encashed by the appellant. In the statement
u/s 313 also it has not been denied that the amount was paid.
Once prosecution has led both oral and documentary
evidence regarding the payment of amount by cheque, it was
incumbent for the accused to take the defence that amount
was not paid and the cheque which was drawn in his favour
was never encashed by him.
Here also in the instant case, once the prosecution adduced it
evidence both oral and documentary regarding payment of
the amount by cheque, the onus was on the accused to lead
evidence that the amount was not received by him. The
defence having failed to do so, the only inference that the
cheque was indeed encashed in pursuance to the agreement.
The case of the accused will not be salvaged by some
inconsequential endorsement on the counterfoil of the
cheque."
22. The point regarding the present case being the counter case of
the case filed by the defence has been considered by the
learned appellate court at para 11 of the impugned judgement,
the plea was rejected by considering the materials on record as
follows: -
"The second major plea of the defence is that the present
case is a counter to the complaint case filed by the appellant
which have been adduced into evidence and marked as
Exhibit-A which was filed on 13.03.2001 by Vinay Prakash
Mishra against Ashok Kumar Pandey u/s 323, 341, 379,
426, 406, 420, 384, 120B of the I.P.C. As per this complaint
petition, he had handed over three cheques of Rs. 2,25,000/-
to the accused persons as a friendly loan. It was also agreed
that Indira Vikas Bond worth Rs. 2,50,000/- will be given to
the complainant Vinay Prakash Mishra as security. It was
in these circumstance that these three cheques (Ext-5series)
were handed over to the accused and when the Indira Vikas
Patra was not given in security, the complainant Vinay
Prakash Mishra demanded back his three cheques, leading to
the dispute and filing of the case. It is argued that after
filing of this complaint case by the appellant the present
complaint was filed against them. This defence appears to
have been set up to preempt the present complaint case
against the appellants. As discussed above, the prosecution
has led credible and cogent evidence regarding payment of
Rs. 2,08,000/- by cheque and Rs. 17,000/- by cash to the
appellants in pursuance to the rent agreement. It has also
been established that after the appellants failed to deliver the
room, the complainant demanded back his advance amount.
In order to repay this amount, the three cheques were issued
by appellant no. 1 Vinay Prakash Mishra in favour of the
complainant. It has been established by the deposition of the
Bank Manager PW-1 that these cheques were dishonoured
for insufficiency of fund. In para-22 the informant has
stated that Sharda Mishra was old lady and he had gone to
her house for the first time on 3.3.2000. It has also come in
evidence that the informant had a flourishing trade of
medicine and had three shops in Bokaro. The informant was
thus a stranger to the appellants, in that circumstance it
does not appeal to reason that that informant would
approach the appellants for the said friendly loan that too on
deposit of a security of Indira Vikas Patra. Against this
evidence, I am not inclined to accept the defence of the
appellants that the present complaint case was a counter to
the earlier complaint case filed by the appellant."
23. This Court is of the considered view that the plea regarding,
the present case being a counter case to the case filed by the
accused against the informant and others, has been rightly
considered by the learned court below and there is no
perversity or illegality in the said findings.
24. The learned appellate court also considered the statements of
the petitioners under Section 313 of Cr.P.C. and the argument
of the petitioners that the incriminating circumstances were
not put to the accused persons. After going through the
statements under Sections 313 of Cr.P.C., the learned appellate
court found that only three questions were put to the accused
persons, of which, the second question was the main question
and the other two were formal in nature. It was found that all
the evidence against the accused persons were compressed
into one question, but found that the accused persons were
confronted with the main evidence against them and further
referred to a number of judgments, wherein it has been held
that every omission to put an incriminating circumstance
would not vitiate trial unless serious prejudice is shown and
recorded a finding that there are some defects in the recording
of statement under Section 313 of Cr.P.C. The appellate court
held that there has been substantial compliance and there has
been no prejudice to the petitioners on this count. This court
finds that the finding regarding the point raised by the
petitioners in connection with questions raised under section
313 Cr.P.C is a well-reasoned finding and no perversity as such
has been pointed out by the learned counsel for the petitioners
calling for interference in revisional jurisdiction.
25. The learned appellate court considered the allegation with
regard to Sections 406 and 417 of IPC vide paragraphs 14 and
15, considered the ingredients of the offence under said
sections and recorded its finding at paragraph-14 and 15 and
held that the essential ingredients of entrustment under
Section 406 of IPC was not fulfilled and therefore, charge
under Section 406 of IPC failed.
26. So far as the allegations under Section 420 of IPC is concerned,
the same was considered at paragraph-15 of the judgment in
the light of distinction between breach of agreement and
cheating, which reads as under: -
"There is a distinction between breach of contract and
cheating. This distinction depends upon the intention of the
accused at the time of alleged inducement. Mere breach of
contract cannot give rise to criminal prosecution u/s 420
unless fraudulent or dishonest intention is shown right at the
beginning of transaction time when the offence was said to
have been committed. If it is established that the intention of
the accused was dishonest at the time of entering into the
agreement, then liability will be criminal and the accused will
guilty of offence of cheating and on the other hand if all i.e.
established a promise made by the accused has subsequently
not been kept criminal liability cannot be fastened to the
accused.
Here in the present case, it has been established that
the appellants/accused persons received Rs. 2,25,000/- in
pursuance to the agreement and thereafter, neither the
possession of the room was delivered nor the advance amount
was repaid. If the appellants would have performed only a
part of the agreement or repaid even a part of the advance
taken by them, then an inference could have been drawn that
it was a case of breach of contract and the appellants had an
intention to perform the agreement. The non-performance of
the agreement in its entirety discloses an intention to deceive
the complainant from inception. The difference between
Section 417 and 420 of the IPC is that no property passes in
pursuance to the deception in an offence under Section 417
IPC, whereas in pursuance of deception property is delivered
an offence under Section 420 is made out. Here it has been
proved that informant was defrauded of Rs. 2,25,000/-
therefore Section 420 will apply and not Section 417 of the
IPC.
I, therefore, find that the prosecution has succeeded to
prove its case u/s 420/34 of the I.P.C. The charge u/s 406 and
other sections is not proved."
27. The learned trial court while considering the allegations under
sections 417 or 420 of IPC although recorded a finding of fact
that the accused persons have deceived the informant and also
induced him to deliver the money to them for the said shop,
which they did not hand over to him, and the accused persons
cheated the informant, but held that the ingredients of Section
420 has not been proved by prosecution beyond all the
reasonable doubts and the prosecution has been able to prove
the allegation u/s 417/34 of I.P.C against the accused persons
beyond the shadow of all reasonable doubts.
28. The appellate court also recorded the difference between
Sections 417 and 420 of the IPC that no property passes in
pursuance to the deception in an offence under Section 417
IPC, whereas in pursuance of deception property is delivered
an offence under Section 420 is made out. Here it has been
proved that informant was defrauded of Rs. 2,25,000/-
therefore Section 420 will apply and not Section 417 of the IPC.
29. Thus, both the learned courts below found that the petitioners
had cheated the informant, but the trial court convicted the
petitioners under section 406/34 IPC and 417/34 IPC and the
appellate court convicted the petitioners under section 420/34
IPC and held that in absence of entrustment, offence under
section 406 IPC was not made out.
30. Thus, it is required to be seen as to whether offence under
section 417 IPC or under section 420 IPC is made out in the
light of concurrent finding of facts that the petitioners have
deceived the informant and also induced him to deliver the
money to them for the shop, which they did not hand over to
him, and thus the petitioners cheated the informant.
31. Section 415 of IPC defines cheating as under :-
Section 415 Cheating.--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 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, is said to "cheat".
Explanation. -- A dishonest concealment of facts is a deception
within the meaning of this section.
32. Thus, section 415 IPC requires ―
1. Deception of any person.
2. (a) Fraudulently or dishonestly inducing that
person:
(i) To deliver any property to any person, or
(ii) To consent that any person shall retain any
property, or
(b) intentionally inducing that person to do or omit
to do anything which he would 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.
33. Sections 417 and 420 of IPC read as under: -
Section 417 Section 420 IPC
IPC
417. Punishment for 420. Cheating and dishonestly
cheating. -- inducing delivery of property. --
Whoever cheats Whoever cheats and thereby
shall be punished dishonestly induces the person de-
with imprisonment ceived --
of either description (a) to deliver any property to
for a term which any person, or
may extend to one (b) to consent that any person
year, or with fine, or shall retain any property, or
with both. (c) to make, alter or destroy the
whole or any part of a valuable
security, or
(d) to make, alter or destroy
anything which is signed or
sealed, and which is capable of
being converted into a valuable
security.
shall be punished with
imprisonment of either description
for a term which may extend to
seven years, and shall also be
liable to fine.
34. This court finds that as per the definition of 'cheating' under
Section 415 IPC, all instances of cheating does not essentially
require dishonest inducement of the person so cheated to
deliver property or to do any of the acts mentioned in clauses
(a) to (d) of Section 420 of IPC. Such instances of cheating,
which do not involve any of the acts by the person cheated as
mentioned in clauses (a) to (d) of Section 420 of IPC, are
punishable under section 417 IPC and those which involve any
of the acts by the person cheated as mentioned in clauses (a) to
(d) of section 420 of IPC, including delivery of property as per
clause (a) of section 420 IPC, are punishable under section 420
IPC.
35. In view of the concurrent findings of facts in the instant case
that the petitioners have deceived the informant and also
induced him to deliver the money to them for the shop, which
they did not hand over to him, offence under section 420 IPC is
made out. Accordingly, this court is of the considered view
that the learned court below has rightly convicted the
petitioners under section 420/34 IPC.
36. In view of the aforesaid findings, this court does not find any
perversity or illegality or material irregularity in the impugned
judgement of conviction of the petitioners for offence under
section 420/34 of IPC. Accordingly, the conviction of the
petitioners for offence under section 420/34 of IPC is upheld.
On the point of sentence
37. This Court finds that the learned appellate court had already
extended the benefit of section 3 of the Probation of Offenders
Act, 1958 to the petitioner No.-1 and recorded that it was
mainly the petitioner No.-2 who was negotiating with the
informant and was mainly responsible for the entire
transaction and that the petitioner No.-1 acted only at the
behest of her son. The appellate court also considered that the
petitioner no. 1 is an old lady. The learned appellate court
refused to extend the same benefit to the petitioner No.-2 by a
well-reasoned order but the sentence was only six months
which was the same sentence as granted by the learned trial
court for offence under section 417/34 IPC.
38. The learned trial court had recorded that by giving assurance
of shop, the accused persons took a sum of Rs. 2,25,000/- from
the informant and cheated him and fraudulently obtained the
amount from the informant and in spite of execution of
agreement and encashment of cheques, the accused persons
did not hand over the shop to the informant at all and when
the informant did not get possession, he demanded his money,
pursuant to which, three cheques were issued, but the same
were dishonoured due to 'insufficient fund'. The very fact that
the money was taken with an assurance that the shop will be
handed over partly by cheque and partly by cash and the
cheque was also duly encahsed by the petitioners, but the shop
was not handed over even for one day. It has come on record
that the informant was in need of the shop for doing business
and further when the informant demanded the money back,
the same was sought to be refunded by cheques, which were
dishonoured. The totality of the facts and circumstances of this
case shows that the petitioners never had the intention to hand
over the shop since beginning and having assured the
informant regarding handing over the shop, they took money
from him and ultimately neither handed over the shop nor
returned the money taken amounting to Rs.2,25,000/-, partly
by cheque and partly in cash. The cheques issued to refund the
amount were also dishonoured.
39. This Court also finds that more than 20 years have elapsed
from the date of FIR during which the petitioners have faced
the rigours of criminal case. The petitioner No. 2 had
surrendered before the learned court below on 05.04.2013
during the pendency of this revision petition and were
directed to be enlarged on bail vide order dated 03.05.2013 and
his bail bond was accepted on 08.05.2013 and has accordingly
remained in custody for more than one month during the
pendency of this case. No other criminal antecedent of the
petitioner No. 2 has been brought to the notice of this court by
either parties and impugned judgements also do not reflect
any previous conviction of the petitioner no.2.
40. Under the aforesaid facts and circumstances, this Court is of
the considered view that ends of justice would be met by
modifying the sentence of petitioner No.-2 to some extent.
Accordingly, the sentence of petitioner No.2 is modified and is
limited to the period already undergone by him in judicial
custody in connection with the present case with a fine of Rs.
1,50,000/- to be deposited by the petitioner No.-2 within a
period of six months from today before the learned court
below. The fine amount, so deposited, is directed to be
remitted to the informant of the case upon due identification. If
the petitioner chooses not to deposit the fine amount within
the aforesaid time frame, bail bond furnished by him is
directed to be immediately cancelled by the learned court
below and he would serve the sentence imposed by the
learned appellate court. Upon deposit of the aforesaid fine
amount, the bailors of the petitioner No.-2 will be discharged
from their liabilities under the bail bond.
41. Accordingly, the present criminal revision application is
disposed of with the aforesaid modified of sentence.
42. Pending interlocutory application, if any, are closed.
43. Let the lower court records be sent back to the learned court
below.
44. Let this order be communicated to the court concerned
through FAX/e-mail.
(Anubha Rawat Choudhary, J.)
Binit/Mukul
