T.Narsaiah, Mancherial Mandal, ... vs The State Of A.P.,Through P.P., ...
2023 Latest Caselaw 3767 Tel

  THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL

            CRIMINAL REVISION CASE NO.833 OF 2011

O R D E R:

This Criminal Revision Case is filed by the

petitioner/accused under Sections 397 and 401 of Criminal

Procedure Code (for short 'Cr.P.C.') aggrieved by the Judgment

dated 30.03.2011 passed in Criminal Appeal No.3 of 2010 on the

file of the learned Principal Sessions Judge, Adilabad, (for short

'Appellate Court') preferred against the Judgment dated

02.01.2010 passed in C.C.No.267 of 2008 on the file of the

learned I Additional Judicial Magistrate of First Class,

Mancherial (for short 'trial Court).

02. Heard Sri H.Venugopal, learned Senior Counsel

representing Sri N.Mukunda Reddy, learned counsel appearing

for the petitioner and Sri Vizarath Ali, learned Assistant Public

Prosecutor representing the learned Public Prosecutor for the

State and perused the record.

03. The main accusation against the petitioner/accused

is that the petitioner was carrying on chit business and obtained

various amounts from the general public and avoided to pay the

said amounts to the subscribers. The complaint was lodged by

PW1 referring several persons' names who have lent money to the

petitioner/accused. Upon the complaint, a crime for the offence

under Section 420 of Indian Penal Code (for short 'IPC') and

Section 52 of the Andhra Pradesh Chit Fund Act (for short 'the

Act') was registered and the criminal law was set in motion.

04. The trial Court, upon considering the entire material

available on record in the form of evidence of PW1 to PW13,

Exs.P1 to P5 and Ex.D1 to D5 and hearing both sides, found the

petitioner guilty for the above offences and accordingly, convicted

and sentenced him to undergo imprisonment for one year and to

a pay a fine of Rs.10,000/-, in default to suffer simple

imprisonment for one month for the offence under Section 420 of

IPC and further sentenced to undergo simple imprisonment for a

period of six months and pay fine of Rs.500/- in default to suffer

simple imprisonment for a period of one month for the offence

under Section 52 of the Act. On preferring appeal, the Appellate

Court vide Judgment dated 30.03.2011 passed in Criminal

Appeal No.3 of 2010 confirmed the conviction and sentence

passed by the trial Court in respect of Section 420 of IPC and set

aside the conviction and sentence passed by the trial Court in

respect of Section 52 of the Act.

05. Aggrieved by the conviction and sentence passed by

the Courts below, the petitioner filed the present criminal

revision case alleging that the prosecution case lacks evidence

and that except oral evidence of PW1 to PW8 and PW10 to PW13

there is no documentary evidence that the accused borrowed the

amount with a promise to pay the same with interest. On the

other hand, the version of the prosecution is that the petitioner

with dishonest intention cheated several persons by collecting

amounts and hence, he is liable to be punished under Section

420 of IPC for the acts committed by him.

06. Learned Senior Counsel appearing on behalf of the

petitioner relied upon a decision rendered by the Hon'ble

Supreme Court in a case between Hridaya Ranjan Prasad

Verma and others v. State of Bihar and another 1 wherein it

was held that:

"In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time

(2000) 4 Supreme Court Cases 168

when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."

07. Learned Senior Counsel appearing for the petitioner

also relied upon a decision rendered by the Hon'ble Supreme

Court in a case between N. Raghavender v. State of Andhra

Pradesh, CBI 2 wherein it was held that:

"54. We may outrightly note that so far as this allegation is concerned, there is no dispute as to the factum of 'entrustment'. The Appellant being the Branch Manager was in-charge and responsible for the deposits made by the Bank customers. The prosecution in regard to this set of transaction, has put forth a five-pronged claim. First, the Appellant along with co-accused conspired to cause wrongful loss to the Bank. Second, the Appellant permitted the use of three loose cheques. Third, the cheques were passed by the Appellant even though there were insufficient funds in account No. 282. Fourth that the relevant entries regarding this transaction were intentionally not recorded in the ledger book- Ex P23, and fifth, that the amount pertaining to these cheques was collected by the Appellant. This according to the Prosecution, and as held by the High Court, was done to extend an undue benefit to the brother-in-law of the Appellant, i.e., Accused No.3."

08. As seen from the Judgments of the trial Court as well

as Appellate Court, PW1 is the de-facto complainant who is

Criminal Appeal No.5 of 2010 decided on 13.12.2021

working along with accused in Singareni Collieries, believed the

accused and paid Rs.80,000/- towards chits and the petitioner

failed to repay the same. PW2 gave hand loan of Rs.1,00,000/-

to the petitioner for interest at the rate of Rs.1/- and the

petitioner failed to repay the same. PW3 is a chit member and

paid an amount of Rs.2,000/- per month towards chit amount

for nearly 17 months and petitioner also took loan of Rs.35,000/-

from the daughter of PW3 and thereafter, the petitioner failed to

repay the same. PW4 gave Rs.1,90,000/- to the petitioner

towards loan and the petitioner failed to repay the same. PW5

gave Rs.1,40,000/- as hand loan to the petitioner and the

petitioner refused repay the said loan. PW6 gave Rs.1,00,000/-

to the petitioner towards loan and failed to repay the same. PW7

gave Rs.1,40,000/- as loan to the petitioner and petitioner failed

to repay the same. PW8 is also subscriber of chit and paid

Rs.31,000/- towards loan and the accused failed to repay the

same. PW9 is the Investigating Officer who deposed with regard

to the investigation of the case. PW10 gave Rs.50,000/- to the

accused as handloan and accused executed promissory note to

that effect but failed to repay the said amount. PW11 gave

Rs.50,000/- towards handloan to the accused and the accused

had paid Rs.1,000/- per month towards interest for 8 months

and failed to repay the remaining amount. PW12 is the chit

member and paid Rs.80,000/- in instalments and accused

stopped the chits suddenly and did not return the said amounts.

PW13 gave Rs.50,000/- towards handloan and also paid

Rs.2,000/- per month for 18 months towards chit fund and the

accused repaid Rs.20,000/- and promised to repay the remaining

amount but failed to do so. During the course of cross-

examination of the above witnesses on behalf of the petitioner did

not gain any support to defeat the case of the prosecution.

09. From the evidence of the above witnesses, the

conduct of the accused attracts the offence under Section 420 of

IPC as he induced them to give money towards hand loans and to

subscribe for the chits run by him. Furthermore, the accused

also executed promissory notes to make them believe that he

would repay the amounts. The conduct of evasive nature in

repayment of loans clearly shows his deceptive nature and

dishonest intention right from the inception. Therefore, The

above decisions relied upon by the learned Senior Counsel does

not apply to the present case on hand as the accused had

dishonest and ill intention at the time of making promise i.e.,

from the inception.

10. In the light of the above discussion, it is clear that the

petitioner the above said acts of the petitioner clearly attracted

the ingredients of Section 420 of IPC and accordingly, both the

Courts below have rightly convicted the petitioner. The findings

of both the Courts below are made on careful and meticulous

scrutiny of the entire material available on record and the same

does not require any interference by this Court as there are no

illegalities or irregularities in the said findings.

11. So far as the sentence of imprisonment imposed by

the trial Court and confirmed by the Appellate Court is

concerned, since from the date of inception of litigation, the

petitioner/accused is roaming around the Courts by facing

trauma and mental agony and in that view of the matter, this

Court takes a lenient view by reducing the sentence of

imprisonment to that of period already undergone by the

petitioner/accused. However, the fine amount imposed by the

trial Court remains unaltered.

12. Accordingly, except the above modification in respect

of period of sentence of imprisonment, this Criminal Revision

Case in all other aspects is dismissed. The bail bonds of the

petitioner shall stand cancelled. There shall be no order as to

costs.

_______________________ E.V. VENUGOPAL, J Dated: 09-NOV-2023 KHRM