[Cites 10, Cited by 0]
Madhya Pradesh High Court
Brijesh vs The State Of Madhya Pradesh on 23 March, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:7793
1 CRA-7523-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL APPEAL No. 7523 of 2023
BRIJESH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vishal Patidar - Advocate for the appellant.
Shri Rahul Solanki appearing on behalf of Advocate General.
Heard On: 16.02.2026.
Delivered On: 23.03.2026
JUDGEMENT
This criminal appeal under Section 374(2) of Cr.P.C., 1973 is preferred
being aggrieved by the judgment dated 16.12.2022 passed in ST No.81/2017 by
Additional Sessions Judge, Dhar whereby the appellant/accused has been
convicted under Section 409 and 420 of IPC and has been sentenced under Section
409 of IPC for 07 years R.I. with fine of Rs.1,00,00,000/- ( Rupees One crore) with
default stipulation of one year R.I. and under Section 420 of IPC, for three years
R.I. with fine of Rs.500/- with default stipulation of six months R.I. The
substantive sentence has been ordered to run concurrently and the amount of fine
of rupees one crore has been directed to be paid to Aeon Medical Pvt. Ltd and
Aeon RKB Motors Pvt. Ltd as compensation under Section 357(3) of Cr.P.C.,
1973.
2. Facts in brief are that Aeon RKB Motors Pvt. Ltd. situated at Plot No.114
Sec-1, Industrial Area Pithampur Dhar and Aeon Medical Pvt. Ltd. is situated at
Sector-1, Pithampur, Dhar are the companies engaged in the manufacturing of
NEUTRAL CITATION NO. 2026:MPHC-IND:7793
2 CRA-7523-2023
medical equipment specially ambulance.
3. Avani Ranjan Tripathi (PW-2) is the Director and CEO of those
companies in 2008. The appellant/accused was appointed as accountant in those
companies. Noticing huge loss in Pithampur Unit an audit was conducted through
one KC Vakhariya in the financial year of 2015-16 and 2016-17 and an
embezzlement of Rs.1.1/-Crrore by the appellant/accused was detected and a
written complaint Ex.P/1 was filed through Senior Manager Rajesh Sharma (PW-
1) and a crime under Section 408, 409 and 420of IPC was registered against the
appellant/accused bearing Crime No.154/2017 on 24.04.2017 at Police Station
Sec-1, Pithampur, Dhar. On investigation, it was found that being an accountant of
both the companies, the appellant/accused has embezzled an amount of
Rs.1.5Crores from the accounts of the companies and invested the same in his own
accounts by misappropriating the authority to operate the accounts of the
companies and a final report was submitted to the Court of JMFC, Dhar whereby
RCT No.2286/2017 was registered in the Court of CJM, Dhar and vide order dated
02.8.2017, the case was committed to the Court of Sessions and thereafter, the case
was made over for disposal to First Additional Sessions Judge, Dhar.
4. The learned trial Court framed the charges under Section 409 and 420 of
iPC.
5. The appellant/accused abjured the guilt.
6. To bring home guilt, the prosecution has examined as many as 11
witnesses including Senior Manager Rajesh Sharma (PW-1), Director and CEO of
Aeon Medical Pvt.Ltd. Pithampur AR. Tripathi as (PW-2, Chief Manager Bank of
India Arvind Saxena PW-3, Dy. Manager ICICI Bank Branch Usha Nagar Anoop
Sharkar (PW-4), Manager LIC HOusing Board Ravi Shankar (PW-5), Regional
NEUTRAL CITATION NO. 2026:MPHC-IND:7793
3 CRA-7523-2023
Head of Reliance Securities Abhisek Sharma (PW-6), Businessman Aditya Sharma
(PW-7), Associate Vice President in Sherkhan Company Ravi Somani (PW-8),
Chief Manager SBI Branch Pithampur Abhay Joshi (PW-9), Narayan Singh (PW-
10) and Investigating Officer Santosh Dudhi (PW-11).
7. In examination under Section 313 of Cr.P.C., 1973, the appellant/accused
admitted the fact that the Aeon Medical Private Ltd. Company is engaged in the
manufacturing of Ambulances since 2005 and Rajesh Sharma PW-1 is the Senior
Manager of the Company. He was appointed as accountant in the company since
2008. He further admitted that Shri KC Vakhariya was the Auditor of the
company. He further admitted the correctness of financial statement Article A/2
and A/3 issued by the LIC Housing Finance Ltd regarding the appellant/accused
and his wife and also the correctness of the financial statement Article A/4 issued
by ICICI Branch Annapurna Road regarding his wife Neelam Agarwal and also
admitted the correctness of his statement of account Article A/5 issued by Bank of
India Branch Annapurna Road, Indore belonging to himself and rest of the facts
were either denied or ignorance was expressed with a defense that AR Tripathi
PW-2 was operating his account for tax evasion as well as to run the parallel
business. When he objected to utilize his accounts for the purpose of tax evasion
than AR Tripathi PW-2 initiated false proceedings through Manager against him.
He examined Branch Manager, SBI Chayan Roniwal as DW-1 and Varad Joshi
(Software Engineer) as DW-2 and adduced Ex.D/1 independent auditor's report
and form Ex.D/2 submitted for net banking.
8. Appreciating the evidence, the learned trial Court recorded the finding
that during the period from 01.04.2005 to 13.03.2017, the amount mentioned in
para no.37 of the judgment was transferred from the Account No.31800563128 of
Aeon RKB Motors Pvt. Ltd. to the account of appellant/accused bearing Account
NEUTRAL CITATION NO. 2026:MPHC-IND:7793
4 CRA-7523-2023
No.0030708596415 as depicted in Article A/11. The learned trial Court further
recorded the finding that an amount mentioned in para no.39 of the judgement was
transferred from the Account of Aeon Medical Pvt. Ltd No.31005232732 to the
account of appellant bearing A/C No.0030708596415 as per Article A/12. It
further recorded the finding that the amount transferred in the bank account of the
appellant was further invested in the Reliance Security and Sherkhan Pvt. Ltd. The
learned trial Court rejected the defense of the appellant after elaborate discussion
recorded in para nos.47, 47, 49, 50, 51, 52 and 53 of the impugned judgment and
recorded the finding that the appellant/accused misappropriated the amount of
rupees one crore entrusted to him in the account of Aeon RKB Motors Pvt. Ltd.
and Aeon Medical Pvt. Ltd. and also committed cheating and convicted and
sentenced the appellant as mentioned in para no.1 of this judgment.
9. Challenging the conviction as well as the sentence, this appeal has been
preferred on the ground that the learned trial Court ignored the material
contradictions and omissions in the statements of the prosecution witnesses, the
learned trial Court further committed error in not believing the documents adduced
by the appellant and also committed error in not applying the legal principles
referred by the appellant/accused.
10. Heard.
11. Counsel for the State as well as counsel for the complainant opposed the
prayer and argued that neither the conviction nor the sentence requires
interference.
12. In this case, only the following questions arises for the disposal of this
criminal appeal:-
(i) Whether the learned trial Court committed error in
rejecting the defense that account No.0030708596415 of the
NEUTRAL CITATION NO. 2026:MPHC-IND:7793
5 CRA-7523-2023
appellant was being operated by Avani Ranjan Tripati PW-2?
(ii) Whether the act of the appellant falls within the
purview of section 409 of IPC or within the purview of
Section 408 of IPC?
(iii) Whether the conviction under Section 409 or 408
of IPC as well as under Section 420 of IPC is maintainable or
not?
(iv) Whether the sentence is proportionate?
13. So far as the answer of question no.1 is concerned, the learned trial
Court has discussed the probability of defense of the appellant/accused that
account No.0030708596415 was being operated by Avani Ranjan Tripathi (PW-2)
through internet banking and concluded on the strength of testimony of Chayan
Roniwal DW-1 as well as Ex.D/2 (c. That appellant/accused was made regulator
and he operated the transaction through internet banking. The mobile No.99266-
02281 belongs to the appellant and the same was provided to receive OTP (One
Time Password) and User I.D. of Login Password. The appellant is the person who
create another User I.D. Further, the learned trial Court has recorded the finding
that the amount transferred in the account maintained in the name of the appellant
was further invested in the stock market and for that purpose, the link account of
his wife was also used. Accordingly, the learned trial Court did not commit any
error in rejecting the defense of the appellant and holding that the appellant
himself has misappropriated the amount as mentioned in para no.37 and 39 of the
judgment.
14. To answer question no.2, the learned trial Court has recorded the finding
that the appellant/accused was accountant in the companies but without recording
NEUTRAL CITATION NO. 2026:MPHC-IND:7793
6 CRA-7523-2023
any specific finding that the post of accountant falls within any of the category
mentioned in Section 409 of IPC, has convicted him under Section 409 of IPC.
For a better appreciation of challenging the conviction under section 409 of IPC, I
found that reading of Section 408 and 409 of IPC would be relevant and are reads
as under:-
408. Criminal breach of trust by clerk or servant.--
Whoever, being a clerk or servant or employed as a
clerk or servant, and being in any manner entrusted in such
capacity with property, or with any dominion over property,
commits criminal breach of trust in respect of that property,
shall be punished with imprisonment of either description for
a term which may extend to seven years, and shall also be
liable to fine.
409. Criminal breach of trust by public servant, or
by banker, merchant or agent.--
Whoever, being in any manner entrusted with property,
or with any dominion over property in his capacity of a
public servant or in the way of his business as a banker, mer-
chant, factor, broker, attorney or agent, commits criminal
breach of trust in respect of that property, shall be punished
with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine.
15. Going through the above provision, it is crystal clear that in a case of
misappropriation by an accountant, the offence only under Section 408 of IPC
NEUTRAL CITATION NO. 2026:MPHC-IND:7793
7 CRA-7523-2023
would be attracted and not the offence under Section 409 of IPC. Accordingly, the
conviction under Section 409 of IPC is set aside and the conviction under Section
409 of IPC is altered to Section 408 of IPC.
16. In the light of Delhi Race Club (1940) Ltd. and Others vs. State of U.P.
and Anr. reported in (2024) 10 SCC 690 the offence of criminal breach of trust
and cheating cannot co-exist and therefore, both offences cannot be sustained
simultaneously. Accordingly, in light of Arshad Niyaz Khan vs. State of
Jharkhand reported in 2025 SCC OnLine 2058 and in Delhi Race Club (supra) ,
the conviction under Section 420 of IPC cannot be sustained. The conviction of the
appellant under section 408 of IPC is maintained, but the conviction as well as
sentence of the appellant under Section 420 of IPC is set aside.
17. Now, come to the proportionality of the sentence, the principle of
proportionality in prescribing liability according to culpability of each kind of
criminal conduct has been very aptly elaborated by the apex court in the case of
Lehna vs. State of Haryana -Lehna vs. State of Haryana - (2002) 3 SCC 76. It will
be expedient to refer to the observations made by the apex court on this subject as
under: "The criminal law adheres in general to the principle of proportionality in
prescribing liability according to the culpability of each kind of criminal conduct.
It ordinarily allows some significant discretion to the Judge in arriving at a
sentence in each case, presumably to permit sentences that reflect more subtle
considerations of culpability that are raised by the special facts of each case.
Punishment ought always to fit the crime; yet in practice sentences are determined
largely by other considerations. Sometimes it is the correctional needs of the
perpetrator that are offered to justify a sentence; sometimes the desirability of
keeping him out of circulation, and sometimes even the tragic results of his crime.
NEUTRAL CITATION NO. 2026:MPHC-IND:7793
8 CRA-7523-2023
Inevitably these considerations cause a departure from just desert as the basis of
punishment and create cases of apparent injustice that are serious and widespread.
Proportion between crime and punishment is a goal expected in principle, and in
spite of errant notions it remains a strong influence in the determination of
sentences. The practice of punishing all serious crimes with equal severity is now
unknown in civilized societies; but such a radical departure from the principle of
proportionality has disappeared from the law only in recent times. Even now a
single grave infraction is thought to call for uniformly drastic measures. Anything
less than a penalty of greatest severity for any serious crime is thought than to be a
measure of toleration that is unwarranted and unwise. But, in fact, quite apart from
those considerations that make punishment unjustifiable when it is out of
proportion to the crime uniformly disproportionate punishment has some very
undesirable practical consequences."
18. Proper sentence was explained in Deo Narain Mandal vs.Deo Narain
Mandal vs. State of U.P - (2004) 7 SCC 257 by observing that in criminal cases
awarding of sentence is not a mere formality. Where the statute has given the court
a choice of sentence with maximum and minimum limit presented then an element
of discretion is vested with the court. This discretion can not be exercised
arbitrarily or whimsically. It will have to be exercised taking into consideration the
gravity of offence, the manner in which it is committed, the age, the sex of the
accused, in other words the sentence to be awarded will have to be considered in
the background of the fact of each case and the court while doing so should bear in
mind the principle of proportionality. The sentence awarded should be neither
excessively harsh nor ridiculously low.
19. In the light of the above principles of proportionality of sentence and in
the facts and circumstances of this case and the fact that the offence under Section
NEUTRAL CITATION NO. 2026:MPHC-IND:7793
9 CRA-7523-2023
408 of IPC is punishable for a term which may be extend to 07 years and with fine,
this court finds that the sentence of 05 years R.I. would be sufficient in this case to
meet the ends of justice. The imposition of amount of fine does not warrant any
interference, but the sentence in default of payment of fine amount is reduced to
06 months R.I. in place of one year R.I.
20. Accordingly, this criminal appeal is partly allowed and setting aside the
conviction and sentence of the appellant under Section 409 and 420 of IPC, the
appellant is convicted under Section 408 of IPC and sentenced for 05 years R.I.
with fine of Rs.1,00,00,000/- (Rupees One Crore Only) and in default of payment
of fine amount the appellant shall undergo for Six Months R.I.
21. Subject to deposit the fine amount, the same shall be given to the Aeon
Medical Pvt. Ltd and Aeon RKB Motors Pvt. Ltd under Section 357(3) of Cr.P.C.,
1973 as per the direction of the learned trial Court.
22. A copy of this judgment be supplied to the appellant through concerned
Superintendent of Jail, District, Dhar.
23. A copy of this judgment alongwith the record be sent to learned trial
Court concerned for necessary information and compliance.
24. Pending application, if any, stands closed.
Certified copy, as per rules.
(GAJENDRA SINGH)
JUDGE
amit
