Shrikrishna Nagar,T v. Centre, N

Legal Reasoning

1 Cri.Rev.Appln.208-05 & ors.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO.208 OF 20051.Sow. Subhadrabai w/o Raosaheb Pawar,Age 47 years, Occu. Household,R/o H-3/1, Shrikrishna Nagar,T. V. Centre, N-9, Hudco,Aurangabad.2.Raosaheb S/o Shamrao @ Ramrao Pawar,Age 53 years, Occu. Service,R/o As above.… Applicants.VersusThe State of Maharashtra … Respondent.WITHCRIMINAL REVISION APPLICATION NO.214 OF 20051.Hirabai w/o Annasaheb Chavan,Age 44 years, Occu. Household, 2. Annasaheb s/o Jaiwantrao Chavan,Age 47 years, Occu. Service,Both R/o H-24/04, Shrikrishna Nagar,N-9, Hudco, Aurangabad.… Applicants.VersusThe State of Maharashtra … Respondent....Advocate for Applicants in Revn./208/05 : Mr. S. G. Ladda.Advocate for Applicants in Revn./214/05 : Mr. S. S. Jadhav.APP for Respondent/State in both Revn. : Mr. S. P. Sonpawale.… 2 Cri.Rev.Appln.208-05 & ors.odtCORAM : S. G. MEHARE, J.RESERVED ON : 10.09.2024PRONOUNCED ON : 23.09.2024JUDGMENT :- 1.Heard the learned counsels for the respective parties.2.The applicants/accused who have been convicted of theoffences punishable under Sections 420 read with Section 34of the IPC and under Section 3 read with Section 4 of the PrizeChits and Money Circulation Schemes (Banning) Act, 1978(“Act of 1978” for short) have impugned the judgments andorders of the learned Chief Judicial Magistrate, Aurangabadpassed in RCC.No.1719 of 2001, dated 07.04.2005 and thelearned 2nd Additional Sessions Judge, Aurangabad confirmingthe judgment and order of the learned Chief JudicialMagistrate in Criminal Appeal Nos.37 of 2005 and 39 of 2005,dated 05.07.2005. 3.Learned counsels for the applicants have vehementlyargued that both Courts erred in law in holding that both theoffences have been proved beyond a reasonable doubt. Learnedcounsel Mr. Ladda for the applicant Subhadrabai and anotherhave tried to open the case by referring to the evidence. Thelaw is clear that unless the glaring features are brought to the 3 Cri.Rev.Appln.208-05 & ors.odtnotice of the High Court, it cannot re-appreciate the evidencein revision. However, he referred to some facts about theincapacity of the complainants to pay or deposit the money forchit because she or her family had no sufficient income to paysuch instalments. He referred to the judgments and arguedthat Section 420 of the IPC was neither ascribed by the TrialCourt nor the Sessions Court. The so-called notebook seizedfrom the co-accused did not establish the allegations. Hereferred to paragraph No.29 of the judgment and order of thelearned Appellate Court and argued that though the Court wassatisfied that there was no satisfactory documentary evidenceon the point of running the Bhisi by the accused, the incorrectfindings were recorded that it was a case exclusively based onthe oral evidence. He tried to argue that this is prima facieerror of law in recording such findings. He also referred toparagraph No.30 of the judgment of the learned AppellateCourt and vehemently argued that when this notebook Exh.36was not proved, the conviction had been erroneously recorded.He referred to paragraph No.19 of the judgment of the TrialCourt and argued that the evidence on the incapacity of thecomplainant to pay such huge monthly instalments of thedeposits was erroneously discarded. The witness gave amaterial admission that she did not have evidence to prove 4 Cri.Rev.Appln.208-05 & ors.odtthat she withdrew the amount from the bank. There were noelements of cheating. Bare failing to return the money is notcheating. The elements of Section 3 of the Act of 1978 werenot proved. The defence of the applicants was not properlyconsidered that there were enmical term. The collected bondpapers do not refer to the Bhisi. He relied on the case of Stateof West Bengal and others Vs. Swapan Kumar Guha and others; 1982 (1) Supreme Court Cases 561 and argued that therewas absolutely no case to try the accused under the Act of1978. He has referred to a few paragraphs of the saidjudgment and argued that the revision deserves to be allowed.However, in the alternate, he prayed for the benefit of Section4 of the Probation of Offenders Act.4.Learned counsel for the applicants Hirabai and othersadopted the arguments of learned counsel Mr. Ladda on thelaw points. However, he has reiterated the arguments of Mr.Ladda as regards making out the offence under Section 420 ofthe IPC. He argued that the charge under Section 406 of theIPC was not framed. He also prayed for the benefit of theProbation of Offenders Act. 5. Learned APP for the respondent/State argued that itwas established that the witnesses were the members of the 5 Cri.Rev.Appln.208-05 & ors.odtBhisi run and conducted by the accused. The husband ofSubhadrabai was playing an active role in running the scheme.Both Courts have correctly appreciated the evidence, and thereis no miscarriage of justice due to incorrect appreciation ofevidence. The courts have also discussed about the financialcapacity of the complainant to deposit the money. Section 420of the IPC and the offences under the Act of 1978 wereestablished. Therefore, both revision applications deserve to bedismissed.6.The case relied upon by the learned counsel for theapplicants was on the allegations of Prize Chits and MoneyCirculation Schemes as defined in Section 2(c) of the Act 1978.However, the facts of the case and averments in the complaintreveal that it was a “conventional chit” as defined in Section2(a) of the Act 1978. The said definition reads thus ;“2.......(a) “conventional chit” means a transaction whethercalled chit,chit fund, kuri or by any other name by orunder which a person responsible for the conduct ofthe chit enters into an agreement with a specifiednumber of persons that every one of them shallsubscribe a certain sum of money (or certain quantityof grain in stead) by way of periodical instalments fora definite period and that each such subscriber shall,in his turn, as determined by lot or by auction or by 6 Cri.Rev.Appln.208-05 & ors.odttender or in such other manner as may be provided forin the chit agreement, be entitled to a prize amount.”7.It is evident from the facts and the findings recorded bythe respective Courts that the accused were the personsresponsible for the conduct of the chits. There was an auctionpractice, and whatever profit was received after the auction, itwas equally distributed among the members. The memberswho did not purchase the Bhisi in the auction were entitled toreceive the amount as per the scheme when their turn comesby a lot or at the end of the term or period of the Bhisi. It was amonthly subscription by the members. In such a case, thedocumentary evidence is not essential. The oral evidence ofthe witnesses who suffered financial loss due to the acts of theapplicants may be considered if it inspires confidence.Therefore, the Court is of the view that believing the oralversion of the witnesses does not make the case bad-in-law inthe absence of any documentary evidence as such.8.It was a promise made by the applicants that everymember of Bhisi who will subscribed monthly would beentitled to get it returned when they become entitled to by alot or by auction. Normally, the auction is done in such caseswhen the person who is a member of the Bhisi does not get it 7 Cri.Rev.Appln.208-05 & ors.odtby a lot, and if he is in need of money, he purchases the Bhisiat a lesser amount of his subscription. The applicants acceptedthe responsibility for transactions. The applicants werecharging the commission as service charges for managing thetransactions of Bhisi. The applicants had promised and ensuredevery member returning their money as per the scheme. It isjust a scheme wherein a few people come together. Theysubscribed monthly whatsoever the practice they adopted, andthe members were receiving the money in lumpsum by way ofmonthly subscription. The member was to pay or subscribe themoney till the last person received his subscriptions. In simplewords it is a scheme wherein a few persons come together andsubscribe to a certain amount, and by lot or by lottery, they getthe lump sum amount that may help the members meet theirnecessities.9.Section 420 of the IPC is punishable for the offences ofcheating. Section 415 of the IPC define “cheating”. It providesthat whoever, by deceiving any person, fraudulently ordishonestly induces the person so deceived to deliver anyproperty to any person, or to consent that any person shallretain any property or intentionally induces the person sodeceived to do or omit to do anything which he would not do 8 Cri.Rev.Appln.208-05 & ors.odtor omit if he were not so deceived, and which act or omissioncauses or is likely to cause damage or harm to that person inbody, mind, reputation or property. The Explanation to theSection provides that a dishonest concealment of facts is adeception within the meaning of this Section.10.To hold the person guilty of cheating is defined underSection 415 of the I.P.C., it is necessary to show that he had afraudulent and dishonest intention at the time of making thepromise with an intention to return the property. It alsorequires the inducement of such person, delivery of property,the consent of that person to retain any property intentionalinducement that the person to do or omit to do anything whichhe could not do or omit if he were not so deceived and whichact or omission causes or is likely to cause damage or harm tothat person in body, mind, reputation or property. 11.The facts established before the Court by way ofsubstantial evidence reveal that the applicants accepted thecomplainants and other witnesses as members of the Bhisi onthe promise to return their subscription either by way of lotteryor lot or by way of auction. The members were also bound tosubscribe to a monthly subscription till the agreed period ends.So, every member should get the lump sum amount to which 9 Cri.Rev.Appln.208-05 & ors.odtthey had subscribed. Even a person who purchases the Bhisi inthe auction has to continue to pay the remaining monthlysubscription till the last person gets the money for hissubscription. 12.Both Courts have recorded the findings, which clearlyestablished that the intentions of the applicants were dishonestand that with an intention that they returned the money fromthe complainant but did not return their subscription. So, theargument of the learned counsels for the applicants cannot beaccepted that the offence under Section 420 of the IPC., wasnot established.13.As far as the offence punishable under Section 4 of theAct of 1978 is concerned, as discussed above, it wasestablished, and hence, both Courts have correctly recordedthe findings that the applicants were guilty of the offencespunishable under Section 4 of the Act of 1978.There was noerror of law in either of the judgments. The case law reliedupon by the learned counsel for the applicants does not applyas it was dealing with another definition of the moneycirculation scheme. The Court does not find any substance inthe revision applications. 10 Cri.Rev.Appln.208-05 & ors.odt14.The learned counsel for the applicants argued that theapplicants are facing the trial for a long time and are at anadvanced age. Their acts were not intentional. Therefore, thebenefit of the Probation of Offenders Act may be extended tothem. The applicants have been convicted for the offencespunishable under Section 420 of the IPC and Section 4 of theAct of 1978.15.Section 4 of the Probation Act is regarding the power ofthe Court to release certain offenders on the probation of goodconduct. That Section empowers the Court to grant probationfor offences not punishable with death or imprisonment of life.The Court has to consider the circumstances of the case,including the nature of the offence and the character of theoffender. The applicants have been sentenced to suffer R.I. forone year for the offence of Section 420 of the IPC., and Section4 of the Act of 1978.16.The question is whether probation can be granted for theoffences, the accused have been sentenced. The benefit underSection 4 of the Probation of Offenders Act cannot be claimedas a matter of right. The word “may” used in Section 4 of theAct is not to be understood as “must”. 11 Cri.Rev.Appln.208-05 & ors.odt17.The Act of 1978 strictly prohibits chit funds and moneycirculations. Section 4 of the said Act provides that in theabsence of special and adequate reasons to the contrary to bementioned in the judgment of the Court, the imprisonmentshall not be less than one year, and the fine shall not be lessthan one thousand. Even then, the applicants were runningthe chit funds and acting as the persons responsible. Their actswere against the prohibitory law. They have indirectly cheatedthe Government. The Sentencing policy is that the accusedfound guilty should be adequately punished so that it shouldbe an eye opener to the other potential offender so that thesimilar offences are not committed by any other potentialoffenders.18.The facts and circumstances, including the nature of theoffences, indicate that the applicants had ill intention from theinception of the scheme. Cheating is a moral turpitude.Therefore, this Court is of the view that this is not a fit case toextend the benefit of Section 4 of the Probation of OffendersAct.19.The applicants are of advanced age. It seems that theapplicants were from the poor strata of society, and they werefollowing the long-standing practice of Bhisi. These 12 Cri.Rev.Appln.208-05 & ors.odtcircumstances are the adequate reasons to sentence theapplicants for less than a year. The record reveals that theapplicants were behind bars for ten (10) days after taking intocustody by the First Appellate Court. Therefore, consideringthe advanced age of the applicants, their sentence is reduced tothe period they have already undergone. Hence, the followingorder :O R D E R(i)The revision applications are dismissed. (ii)The impugned judgments of the learned ChiefJudicial Magistrate and the First Appellate Courtare confirmed and the sentence is modified. Thecorporal sentence is reduced to the period theapplicants have undergone. (iii)The bail bonds and surety bonds of the applicantsstand cancelled. (iv)The surety stands discharged.(v)Rule stands discharged(vi)R and P should be returned to the concernedCourts. (S. G. MEHARE, J.)...vmk/-