Radheshyam and Others v. State of Rajasthan and Another) decided on
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 1511 of 2016 Shyamal Pramanik, son of late Hiralal Pramanik, resident of Bhatia Basti, Kadma, P.O. and P.S.- Kadma, Jamshedpur, District-East Singhbhum Petitioner … … Versus 1. The State of Jharkhand 2. Sitaram Agarwal son of Shri Prabhudayal Agarwal, resident of Main Road, Adityapur, P.O. and P.S. Adityapur, District- Seraikella-Kharsawan Opp. Parties … … CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the State For the O.P. No. 2 --- : Mr. A.K. Sahani, Advocate : Mr. Azeemuddin, APP : Mr. J. N. Upadhyay, Advocate --- 08/10.09.2024 Heard the learned counsel for the parties. 2. This Criminal Revision has been filed challenging the order dated 31.08.2016 passed by the learned Additional Sessions Judge-II, Seraikella, in Cr. Appeal No. 8 of 2008 whereby the appeal has been dismissed. 3. The petitioner has been convicted for the offence u/s 406 of Indian Penal Code vide judgment dated 29.02.2008 passed by the learned Sub Divisional Judicial Magistrate, Seraikella in complaint case being C/1 Case No. 92 of 2000 and has been sentenced to undergo rigorous imprisonment for a period of one year. Argument of the petitioner. 4. The learned counsel for the petitioner while assailing the impugned judgement passed by the learned appellate court has submitted that the case was filed in connection with the offence punishable under Section 420/406 of the Indian Penal Code. The learned Trial Court convicted the petitioner for the offence under Sections 406 but acquitted the petitioner under Section 420 IPC by holding that the basic ingredients for offence under Section 420 IPC was not satisfied. The Appellate Court has recorded a finding in para 19 that the accused had dishonest intention since inception but the said finding has been recorded in spite of the fact that the petitioner has been acquitted for the offence punishable under Section 420 of the Indian Penal Code. The opposite party No. 2, the complainant did not file any appeal against the order of acquittal passed by the learned trial court so far as the offence under Section 420 IPC is concerned. The
Legal Reasoning
learned counsel submits that the entire dispute arose out of supply of computer equipments for which it is alleged that advance payment of Rs. 1,55,500/- was given to the petitioner but the petitioner did not supply even one computer. He has referred to the judgment passed by the Hon’ble Supreme Court passed in Criminal Appeal No. 3020 of 2024 (Radheshyam and Others versus State of Rajasthan and Another) decided on 22nd July 2004 and has referred to paragraph 11 and 12 of the said judgment to submit that the case was at best a civil wrong and offence under section 406 of IPC is not made out. Argument of the opposite parties. 5. The learned counsel appearing on behalf of the opposite party- complainant has opposed the prayer and has submitted that the appellate court in paragraph 13 of the judgment has discussed all the materials and has clearly recorded that the complainant in his evidence has specifically stated the part played by the petitioner in misappropriation of the amount which was handed over to him in good faith. He submits that the entire transaction of handing over Rs. 1,55,500/- was through bank which was against the quotation for supply of computers but not even one computer was supplied. He has also submitted that the aforesaid fact regarding transfer of money and quotation is not in dispute in the present case but the evidences have been taken into consideration to convict the petitioner for offence under Section 406 of IPC. The learned counsel submits that merely because there is transaction of money for supply of computers, the same does not mean that no offence under Section 406 IPC can be made out. He has also submitted that there are concurrent findings recorded by both the courts with regards to conviction under section 406 of I.P.C. and therefore the same does not call for any interference in revisional jurisdiction of this court. 2 6. The learned counsel appearing on behalf of the State has advanced his argument on similar lines as that of the complainant /opposite party no.2. Findings of this court. 7. This court finds that the complaint case No. 92 of 2000 was filed by the opposite party No. 2 and it was stated that the quotation dated 17.05.2000 was signed by the accused which was accepted by the complainant and it was agreed that computer equipment will be supplied within 15 days of the payment which was to be in advance. Consequently, payment of Rs. 1,55,500/- was made vide pay order dated 22.05.2000 which was withdrawn by the accused and in-spite of receiving Rs. 1,55,500 the accused did not supply any material and when the complainant approached the petitioner for supply, he turned a deaf ear and his behaviour towards the complainant was harsh. The complainant had no option but to buy material from other company. It was alleged in the complaint petition that the accused had duped and induced the complainant to part with Rs. 1,55,500/- on 27.05.2000 on the basis of pay order and the accused had no intention to supply material and had committed offence under Section 406 and 420 IPC. It was also alleged in the complaint petition that the aforesaid amount of Rs. 1,55,500/- which was entrusted by the complaint to the accused in good faith has been misappropriated by the petitioner for his own benefit and thereby the accused had committed offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code. 8. From the records it appears that the petitioner faced the trial for the offence under Section 406 as well as 420 IPC. On behalf of the prosecution, altogether five witnesses were examined. However, P.W. 3 did not turn up for cross examination after charge evidence and thus the court has not looked into the evidence of P.W. 3. The certificate of Bank of India dated 14th September 2000 with regard to payment was exhibited by the complainant and was marked as Exhibit-1. On behalf of the defence, only one witness was examined. However, no documentary evidence was produced. After the prosecution evidence, the petitioner was also examined under Section 313 of the Cr. P.C. and 3 he denied the entire allegations. The petitioner had stated that in his statement under Section 313 Cr. P.C. the amount was paid to him and he had supplied the equipments. 9. The learned Trial Court after discussing the evidences on record convicted the petitioner for the offence under Section 406 of the Indian Penal Code and acquitted him for offence under Section 420 IPC by holding that the basic ingredients for offence under Section 420 IPC were not satisfied. The appellate court also considered the evidences on record and clearly held that and discussed the various judgments in connection with the offence of criminal breach of trust and recorded its finding in paragraph 13 as follows: - “13. Keeping in to mind the above provisions of law let us go through the oral evidence adduced on behalf of complainant and other witnesses examined on behalf of complainant. First of all, I would like to discuss the evidence of C.W.4 Sitaram Agrawal complainant. He deposed in his evidence that accused company Micro International sent a quotation on 17/05/2000 signed by accused and the quotation was accepted and it was agreed that equipments would be supplied within 15 days and he received R 1.55,000/- sanctioned by Bank of India Adityapur Branch in favour of accused through order no. 284407 on 22/05/2000 and the accused had to supply materials within 15 days but the accused received the amount and did not supplied the equipments and misappropriated the complainant's money. He has stated that he sent a legal notice through his Advocate but no any reply or action taken by the accused therefore complainant lodge the case against the accused. In his cross-examination after charge he denied that any money for supply of materials was due. He has further stated that accused Shyamal Pramanik was owner of Micro International and workers are posted there and performed their duty in the accused company and their name was also registered under the Company Act. He in Para 6 of his cross examination denied that he received any computer items from the accused on credit basis. The only defence of the accused is that he had supplied materials prior to the receiving of money but in this case the accused has not produced any documentary evidence in support of his defence that he had supplied any computer accessories to the complainant The 4 complainant has proved by documentary evidence that through Bank of India he hand over Rs 155,500 and even after receiving of the money the accused does not supply materials. The complainant in his evidence has specifically stated the part played by the accused in misappropriation of the amount hand over to him in good faith. The manner in which the accused received money and did not supply any computer or materials indicates that they had dishonest intention not to supply any material since inception. In during cross examination by the defence counsel nothing has been brought from the mouth of witness so that his evidence could be doubted. Further the evidence of the complainant is based on the documentary evidence and the same can not be doubled. The defence also failed to bring any contradictions to doubt his testimony. According to direction of Hon’ble High Court this case and case number C/1 760 of 2000 be tried together in the same court by the same magistrate. From perusal of record of C/1 case number 760/2008 which was called for in this appeal it appears that the accused appellant was complainant in that case and they had stated about supply of materials but he had not filed any document in support of his evidence. Thus, the evidence of is quite reliable and trustworthy about the fact that the accused received Rs. 155.500 from complainant for supply of computer materials and he dishonestly misappropriated the amount.” (emphasis supplied) the complainant 10. The learned Court thereafter discussed the oral and documentary evidences and further recorded finding in paragraph 17. The defence evidence has been discussed vide paragraph 18 and in paragraph 19 the learned appellate court has recorded that the complainant and other witnesses examined on behalf of the complainant proved the case regarding payment of Rs. 1,55,500/- to the petitioner for supply of computer equipment. The complainant has proved the manner in which not even a single computer was supplied to the complainant after receiving money and has indicated that the accused had dishonest intention since inception. Paragraph 19 of the Appellate Court’s judgment is quoted as under: - “19. On the basis of the evidence of complainant as well as other witnesses examined on his behalf it appears that the 5 complainant has proved his case regarding payment of Rs. 155.500 to accused for supply of computer equipments. The complainant has also proved the fact that the accused received sanction amount of Rs. 155.500/- from him through Bank of India Adityapur Branch. The complainant has proved that the manner in which not even a single computer supplied to the complainant after receiving money clearly indicates that the accused had dishonest intention since inception. Further the manner in which the accused just after receiving the notice instituted false case against complainant at Jamshedpur indicates that he had no intention to supply the computer. It appears that in order of avoid payment the accused without any substance filed false case against the complainant.” 11. This court finds that evidences on record with regard to criminal breach of trust has been duly discussed in paragraph 13 of the appellate court’s judgment. This court has gone through the evidence of the complainant and finds that the complainant had specifically alleged that the amount which was taken by the accused has been misappropriated by the accused. The learned courts have also recorded that although the accused had taken a defence that he had supplied the equipments but not even a chit of paper was submitted by the petitioner with regard to the supply of equipments. The petitioner had also stated in his statement under section 313 Cr. P.C. that he had supplied the materials as per quotation. This court finds that the learned courts have considered the materials on record and have rightly convicted the petitioner under section 406 of IPC. This Court finds no reasons to interfere with the impugned judgment of conviction. 12. So far as the judgment passed by the Hon’ble Supreme Court in the case of Criminal Appeal No. 3020 of 2024 (Radheshyam and Others versus State of Rajasthan and Another) is concerned, the case was arising out of an agreement to sale with regard to the landed property and the grievance was that there was a breach of agreement of sale. The Hon’ble Supreme Court has considered the basic ingredients of offence punishable under Section 406 IPC in paragraph 11 which reads as under: - “11. For an offence punishable under Section 406, IPC, the following ingredients must exist: 6 to their own use i. The accused was entrusted with property, or entrusted with dominion over property; ii. The accused had dishonestly misappropriated or converted that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and iii. Such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.” 13. In paragraph 12 of the said judgment, the Hon’ble Supreme Court observed that the amount paid towards consideration of the landed property and refusing to register the sale deed did not amount to misappropriation of advance payment and there was no entrustment of property. In the judgement passed by the Hon’ble Supreme Court the consideration money was paid but was not misappropriated. 14. The word ‘goods’ as defined under clause (7) of Section 2 of the Sale of Goods Act, 1930, interalia, means any type of moveable property other than ‘actionable claims’ and ‘money’. In Nevada Properties (P) Ltd. v. State of Maharashtra, (2019) 20 SCC 119 it has been held that money is ‘moveable property’ under Cr.P.C. by relying upon section 22 of IPC which defines “movable property” to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth even though the definition ‘goods’ as per clause (7) of Section 2 of the Sale of Goods Act, 1930 does not include ‘money’ . Paragraph 7 of the aforesaid judgement is quoted as under: - “7. Money, as per clause (7) of Section 2 of the Sale of Goods Act, 1930, is neither goods nor movable property, albeit Section 22 IPC defines the term “movable property” to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth. The expression “movable property” has not been specifically defined in the Code. In terms of Section 2(y) of the Code, words and meanings defined in IPC would equally be applicable to the Code. Money, therefore, would be property 7 for the purposes of the Code. Money is not an immovable property.” 15. The aforesaid judgement Radheshyam and Others (supra) does not apply to the facts of this case. In the present case, the complainant deposed in his evidence that accused company Micro International sent a quotation on 17/05/2000 signed by accused and the quotation was accepted and it was agreed that equipments would be supplied within 15 days and he received R 1.55,000/- sanctioned by Bank of India Adityapur Branch in favour of accused through order no. 284407 on 22/05/2000 and the accused had to supply materials within 15 days but the accused received the amount and did not supply the equipments and misappropriated the complainant's money. The evidence of the complainant with regard to misappropriation of money remained intact even though he was thoroughly cross examined. The stand of the defence was that the computer equipments were supplied before payment of money but did not produce any document regarding such supplies. Thus, the evidence of the complainant that the petitioner took money and did not supply even one equipment and misappropriated the complainant's money stood duly proved. On the basis of the aforesaid proved facts on record this court is of the considered view that the basic ingredients for offence under Section 406 IPC was fully satisfied as is apparent from the aforesaid discussions which has been recorded by the learned trial court as well as the appellate court. No ground has been made out by the petitioner to interfere with the impugned judgment of conviction. Accordingly, this revision is hereby dismissed. 16. At this stage, the counsel for the petitioner has strenuously argued there may be some modification of sentence considering the long-drawn litigation and that the petitioner has remained in custody for a period of two months and does not have any criminal antecedent. He has also submitted that 24 years have passed from the date of lodging of the complaint case. 17. The counsel for the opposite party has opposed the prayer. 8 18. However, considering the fact that about 24 years have elapsed from the date of the complaint case and there is no minimum sentence prescribed under Section 406 IPC, this court while considering the strenuous prayer made by the counsel for the petitioner with regard to modification of sentence is of the considered view that for the ends of justice to both the parties will be served if the sentence is modified to some extent and fine is imposed. Accordingly, the sentence of the petitioner is confin-ed to the period already undergone subject to payment of fine of Rs. 1,55,500/- to be deposited by the petitioner before the learned court within a period of two months from the date of communication of this order. If the aforesaid amount is not deposited within two months, the petitioner would serve the sentence as awarded by the learned courts. 19. The aforesaid fine amount be remitted to the complainant upon due identification. 20. This revision is dismissed with modification of sentence. 21. 22. Let this order be communicated to the court concerned through Pending I.A., if any, is closed. FAX. Binit (Anubha Rawat Choudhary, J.) 9