In a revision under Section 378 Cr.P.C. against an acquittal of criminal breach of trust, the High Court held that without legal infirmity or dishonest intention, mere failure to repay does not constitute an offence under Section 406 IPC, dismissing the application.
Application for leave to appeal against acquittal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CRM A-1017-MA of 2011
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM -A 1017-MA of 2011 (O&M) Date of Decision: November 15, 2012
Sunder Lal
... Petitioner
Versus
Ashok Kumar and others.
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: Mr. J.S. Hooda, Advocate, for the petitioner.
Paramjeet Singh, J.
CRM No. 68129 of 2012
For the reasons indicated in the Crl. Misc. application, the same is allowed. Delay of 58 days in filing the appeal is condoned.
CRM A-1017-MA of 2011
The instant application has been filed under Section 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 20.05.2011 passed by the learned Addl. Sessions Judge, Palwal, whereby respondent Nos.1 and 2 have been acquitted of the charges framed against them.
CRM A-1017-MA of 2011 2
Brief facts of the case are that a complaint was filed by the complainant against respondent Nos. 1 and 2 alleging that the complainant used to deposit Rs.100/- per month with a society run by respondent Nos. 1 and 2 from January, 1998 onwards. At that time, accused had induced them that they would get interest on the amount deposited @ 12%. The accused also issued passbooks in which they used to make entry regarding receipt of money. When the complainant asked for return of the money, the accused refused and thus committed criminal breach of trust. On the basis of the complaint, an FIR was registered against the accused. After completion of investigation, challan was presented against respondent nos.1 and 2 in the Court. Thereafter, charge was framed against the accused to which the accused pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, examined PW1 Reghubir, PW2 Sunder, PW3 Rajinder and PW4 Kanwar Singh. Thereafter, the evidence of the prosecution was closed by Court order on 27.10.2009. Thereafter, statements of the accused were recorded under Section 313 Cr.P.C. All the incriminating circumstances were put to the accused. They denied the same and pleaded innocence.
The learned Trial Court, after trial, convicted respondent No.1 and 2 under Section 406 IPC and sentenced them to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1000/-. In default, to further undergo simple imprisonment for fifteen days vide judgment of conviction dated 05.05.2010 and order of setence dated 07.05.2010. Aggrieved against the same, respondent Nos. 1 and 2
CRM A-1017-MA of 2011
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preferred an appeal which was accepted by the learned Additional Sessions Judge, Palwal and respondent Nos.1 and 2 were acquitted of the charges levelled against them vide judgment dated 20.05.2011. Hence, this application for grant of leave to appeal.
I have heard learned counsel for the petitioner and gone through the impugned judgment also.
The learned Additional Sessions Judge , after appreciating the evidence on record, observed as under:-
“15. I am of the considered opinion that giving a particular amount of money to some body for a particular purpose for certain time is not entrustment of money with a particular direction that the money would be demanded back by the complainant pre-maturally. Failure to pay back loan or debt or any money does not amount to dishonest mis-appropriation of money or dishonest conversion of the amount towards his own use. In this case the accused were demanding money so that it may be invested to a particular period of 3 years and, therefore, they could have been able to pay back 12% interest to the complainant. Therefore, if after 2-1/2 years the accused have shown inability on their part to pay back the amount deposited pre-maturally that does not amount to dishonest misappropriation. Therefore, no offence under Section 406 IPC is made out.
16. As considering the allegations of the accused at its face value to be true no offence under Section 406 IPC is made out.
17. I am of the considered opinion that dishonest intention is gist of the offence and all breaches of trust is
CRM A-1017-MA of 2011
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not an offence. In this case also it would have been a natural desire of the complainant to seek speedy justice by having recourse to criminal law so that the amount deposited by them with the accused may be recovered and in such type of cases the Magistrate should be over cautions to see the mensrea. I am also of the considered opinion that there must be some dishonest intention at the time of delivery of property. In this case both the ingredients were lacking.
18. Resultantly, I do not find concurrence with the findings of learned Trial Court which is not based on correct appreciation of proposition of law.”
The learned counsel for the petitioner has not been able to
point out any infirmity or illegality in the impugned judgment either on facts or on law which would call for interference by this Court.
The scope of revision against acquittal has been well discussed by the Hon'ble Apex Court in a judgment rendered in Bindeshwari Prasad Singh alias R.P. Singh and others versus State of Bihar (now Jharkhand) and another, 2002(4) R.C.R. (Criminal) 61 (SC), wherein the Hon'ble Apex Court has observed that in the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has been further observed that the High Court should not re-appreciate the evidence to reach a finding different than the one arrived at by the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. It has also been further observed that in
CRM A-1017-MA of 2011 5
exercise of revisional jurisdiction against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and it should not constitute itself into an appellate court which has a much wider jurisdiction to go into questions of facts and law and to convert an order of acquittal into one of conviction. It cannot lose sight of the fact that when a re-trial is ordered, the dice is heavily loaded against the accused, and that itself must caution the court exercising revisional jurisdiction.
Taking into consideration the facts of the case in hand and following the ratio of judgment of the Hon'ble Apex Court, rendered in Bindeshwari Prasad Singh's case (supra), the appellant has no case. As such, this application for leave to appeal is dismissed.
November 15, 2012 [Paramjeet Singh] vkd Judge
3 issues framed by the court
Whether the High Court can interfere under Section 378 Cr.P.C. in the absence of legal infirmity in the trial or conduct of the proceedings.
Whether mere non-return of deposited funds amounts to dishonest misappropriation without proof of dishonest intention.
Whether the revisional court should act as an appellate court and re-appreciate evidence in an appeal against acquittal.
Colour shows how this judgement treated each authority
Bindeshwari Prasad Singh alias R.P. Singh and others versus State of BiharReferred¶38
Bindeshwari Prasad Singh alias R.P. Singh and others versus State of Bihar (now Jharkhand) and another, 2002(4) R.C.R. (Criminal) 61 (SC)
2 provisions across 2 enactments
Sunder Lal
Ashok Kumar
Paramjeet Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
