Allowed

Vinod Kumar Mishra v. State of Chhattisgarh

Chhattisgarh HC15 Sept 2023CRR/371/2019

Case brief

AI extract

What is this about?

In this criminal revision, the High Court of Chhattisgarh quashed convictions under Section 420 of IPC, holding that the prosecution failed to prove cheating beyond reasonable doubt as the accused had already returned the alleged cheated amount.

What did the court decide?

Impugned judgments dated 06.03.2019 and 05.10.2018 set aside; applicant discharged from charges under Section 420 of IPC.

Vinod Kumar Mishra Vs State of Chhattisgarh — Cheating and Forgery | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRR No.371 of 2019

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Order reserved on : 15.06.2023 Order delivered on : 15.09 .2023

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Vinod Kumar Mishra S/o Rambhavan Mishra Aged About 42 Years Occupation Job R/o Village Darbatokali, Thana And Tahsil Jashpur, District Jashpur Chhattisgarh

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---- Applicant

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Versus

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State Of Chhattisgarh Police Incharge Officer- Jashpur District Jashpur Chhattisgarh

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---- Respondent

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For Applicant Mr. Rahil Arun Kochar, Advocate For Respondent-State Mr. Alok Nigam, GA

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Hon’ble Smt. Justice Rajani Dubey

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C A V Order

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The present revision has been preferred by the applicant against the judgment and order dated 06.03.2019 passed by the learned Session Judge, Jashpur in CRA No.49/2018, whereby the learned Appellate Court modified the sentence awarded by the learned Chief Judicial Magistrate, Jashpur in Criminal Case No.104/2016 vide judgment dated 05.10.2018, by which the appellant was convicted under Section 420 of IPC and was sentenced to undergo RI for 5 years with fine of Rs.25,000/-. In default of payment of fine, additional RI for 3 months.

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The appellate Court has modified the sentence awarded to the

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applicant and the applicant has been convicted under Section 420 of IPC and sentenced to undergo RI for 1 year with fine of Rs.2 Lakhs and in default of fine amount, additional RI for 6 months.

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Brief facts of the case are that the complainant Deepak Vishwakarma made a written complaint on the ground that the appellant cheated him by saying that he will give the appointment on the post of AG-3 in the Health Department, Jashpur and took a sum of Rs.1,50,000/- from him, but neither any such job was provided to him nor his money was returned. On this report, an FIR was lodged against the appellant and after completion of investigation, charge sheet was filed against the appellant/accused before the Trial Court. The learned Trial Court framed charges for the offence punishable under Section 420 of IPC against the appellant and convicted him for the offence punishable under Section 420 of IPC and sentenced him to undergo RI for 5 years with fine of Rs.25,000/-, against which an appeal was preferred before the Session Court, which was partly allowed and the sentence imposed upon the applicant has been reduced, as mentioned above, while the conviction was affirmed.

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Before the learned Trial Court, the prosecution examined 14 witnesses to prove its case. The statement of the accused under Section 313 of CrPC was also recorded, wherein he denied the circumstances appearing against him.

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The learned Trial Court after appreciation of oral and

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documentary evidence available on record convicted the appellant under Section 420 of IPC and sentenced him to undergo RI for 5 years with fine of Rs.25,000/- and in default of fine, additional RI for 3 months. The appellant filed appeal against this judgment of conviction and order of sentence before the Session Judge, Jashpur and the learned Appellate Court vide judgment dated 06.03.2019 affirmed the conviction of the applicant under Section 420 of IPC however altered the sentence awarded to the appellant, as described in the preceding paragraphs of the judgment. Hence this revision has been filed by the appellant.

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Learned counsel for the appellant submits that the Judgments passed by the both the courts below are bad in law and not sustainable in the eyes of law. The learned court below ought to have considered the fact that the ingredients of section 420 is missing in the prosecution case. The learned Appellate Court while convicting the appellant completely overlooked that there is an inordinate delay in lodging the FIR and the prosecution has completely failed to proved the sufficient cause of delay and no plausible explanation has been given for such delay. The learned court below has completely overlooked the fact that there is no evidence available on the record to show that the applicant had taken money of Rs. 1,50,000 from the complainant for providing the job. The applicant had not receiving the money from the complainant for providing the job but he took the loan for

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treatment of his mother from the father of the complainant and executed an affidavit in favor of the father of the complainant in the stamp and the stamp has been seized by the prosecution as Seizer Memo (Ex-P/2. He further submits that the learned court below has further completely overlooked the fact that the prosecution has failed to prove that the applicant has received the money for the sake of providing job hence the offence u/s 420 of 1.P.C. would not be made out. The prosecution could not prove its case beyond all reasonable doubts while burden of proof is on the prosecution, as such the applicant is entitled to get benefits of doubt. There are so many material contradictions among the prosecution witness, as such the case of prosecution becomes doubtful, therefore applicant cannot be convicted for alleged offence. The complainant's father and brother are posted in police department and they forcefully lodged the report against the applicant. The learned court below completely overlooked the fact that the complainant was studying regular diploma course in session January, 2013 to December 2013 from AISECT University Bhopl through its study center available at Ambikapur, which shows that he was not even eligible for the applied post. He further submits that the learned court below has completely overlooked the fact that the applicant has already returned amount of Rs.1,50,000/- to the complainant through demand draft, as has been pointed out by this Court in CRMP No.113/2017 vide order dated 11.08.2017, which was preferred by the complainant, a copy of which is already filed as Annexure-

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A/3. Therefore, the impugned judgments of conviction may kindly be set aside.

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Learned State counsel supports the impugned judgment.

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Heard learned counsel for the parties and perused the material available on record as well as record of CRMP No.113/2017.

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CRMP No.113/2017 has been filed by the complainant Dipak Vishwakarma against the bail order dated 13.06.2016 passed by this Court in MCRC No.2040/2016, whereby this Court granted regular bail to the complainant Vinod Mishra in connection with Crime No.39/2016, registered at Police Station Jashpur for the offence punishable under Section 420 of IPC. The said CRMP was dismissed on the ground that the Draft of Rs.1,50,000/- was already handed over to the complainant Deepak Vishwakarma by the applicant Vinod Kumar Mishra. The order sheet dated 11.08.2017 reads as under:-

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“1. Heard.

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Draft of Rs.1,50,000/- has been handed over to the complainant Deepak Vishwakarma, who has been identified by his counsel.

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In view of the above, learned counsel for the petitioner do not want to press this petition on merits. It is accordingly dismissed.”

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Thus, it is clear from this order sheet that the applicant returned amount to the complainant before this Court. Before the Trial Court, the prosecution has exhibited document (Article-A-1), which shows that the accused Vinod Mishra executed affidavit in favour of the complainant’s father Ramanugrah Vishwakarma

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with regard to acceptance of the loan amount of Rs.1,50,000/from the complainant. Before this Court, the complainant received draft of Rs.1,50,000/- from the applicant and did not press the aforesaid petition bearing CRMP No.113/2017, which was preferred for cancellation of bail granted to the applicant. The complainant also did not disclose this fact before the Trial Court or the Appellate Court and both the courts convicted the applicant only on the oral evidence of the complainant and his mother and father. It is the defence of the applicant/accused that he did not take money for providing job to the complainant and he took the said money as loan amount from him.

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It is well settled principles of law that the prosecution has to prove its case beyond reasonable doubt and the defence has to prove on the probability of his defence and in this case, the defence of accused is proved from the order sheet of this Court dated 11.08.2017 passed in CRMP No.113/2017, where he returned amount of Rs.1,50,000 to the complainant. Both the courts below did not appreciate the documentary evidence and crossexamination of the complainant’s witnesses. The complainant Dipak Vishwakarma admitted this fact in his cross-examination that Article A-1 was executed by the applicant and his father and he also signed in Article-A-1 but this fact has not properly been appreciated by the learned Trial Court and the Appellate Court, as such the findings recorded by the learned Trial Court and the Appellate Court are not based on proper appreciation of oral and

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documentary evidence available on record and perusal of the order sheet of CRMP No.113/2017 makes it clear that the prosecution has failed to prove its case beyond all reasonable doubt, as the prosecution had to prove this fact that the amount of Rs.1,50,000/- taken by the applicant was not a loan amount and the applicant took the said amount by cheating from the complainant.

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In view of the foregoing discussions and considering the facts and circumstances of the case, the judgments passed by the both the courts below are not sustainable. Accordingly, both the judgments dated 06.03.2019 and 05.10.2018 are hereby set aside. The applicant/accused is discharged from the charges punishable under Section 420 of IPC.

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The revision is allowed.

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Sd/Rajani Dubey Judge

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Nirala

Vinod Kumar Mishra v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Vinod Kumar Mishra v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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