Nainital v. State

confirming the conviction and sentence of the appellant U/Ss 406 and 420 I.P.C., passed by the C.J.M. Dehradun, vide judgment dated 13-11-2002, in Case No. 898/2002, whereby the appellant was sentenced to three years R.I. U/S 406 I.P.C. and four years R.I. U/S 420 I.P.C. and fine of Rs. 500/- and in default of payment of further undergo 10 days imprisonment. However, all the sentences were to run concurrently. 2- Brief facts of the case are that the complainant Prem Chand lodged a complaint against the appellant Har pal Singh, and other persons namely Kuldeep Singh, Krishna Chand Ahuja and Smt. Indu Arora with the allegation that on 22.3.1995 he deposited Rs. 10,000/- with Agrarians Field and Forest Limited and the Managing Director of the Company issued receipt and a post-dated cheque No. E. X. 579744 amounting to Rs. 16,850/- dated 22.3.1998 in favour of Oriental Bank of Commerce, Karanpur, Dehradun. After three years the complainant presented the cheque before the bank which was dishounored by the bank. Investigation was conducted and charge sheet was filed against the accused persons. 3- The Chief Judicial Magistrate, Dehradun framed charges U/Ss 420 and 406 I.P.C. against the accused persons, to which they pleaded not guilty and claimed to be tried. 4- In support of the case, prosecution examined P.W.1, Prem Chand, P.W.2 A.K. Jain, P.W.3 Som Prakash Sharma and P.W.4 S.I. P.S. Sharma. 5- P.W.1, Prem Chand is the complainant of the case. He deposed that on 22.3.1995, he deposited Rs. 10,000/- for three years with the Agrarians Field and Forest Ltd. Dehradun which was being run by H.S. Sandhu, K.C. Ahuja, Kuldeep Singh and Indu Arora, the accused persons. He also deposed that a post-dated cheque, Ex. Ka. 1, amounting to Rs. 16,850/- was issued to the complainant in favour of Oriental Bank of Commerce, the maturity date of which was 22.3.1998. When the cheque was presented before the bank for payment, it was dishonoured. He went in the office of the company where accused K.C. Arora and Indu Arora were present. They revalidated the cheque by affixing the stamp on the back side of the cheque from 26.3.98 to 22.6.98. But after the aforesaid revalidated date the payment was not made, hence he filed compliant, Ext. Ka.4. 6- P.W.2, A.K.Jain was the Branch Manager of Oriental Bank of Commerce. This witness has deposed that the impugned cheque was presented in the bank which was dishonoured on 24.3.1998 for want of paucity of funds. 7- P.W.3, S.I. Som Pal Sharma and P.W.4, S.I. P.S. Sharma have investigated the case and after invedstigation charge sheet, Ex. Ka.6 was submitted against the accused persons. 8- The accused Harpal Singh in his statement U/S 313 Cr.P.C. denied the allegations and alleged that he had resigned from the post of Managing director of the company on 9-1-1998, hence he has no any liability with regard to the allegations. Accused Indu Ahuja in her statement U/S 313 Cr.P.C. alleged that she was an employee of the company and she has no liability. The other two accused Krish Chand Ahuja and Kuldeep Singh confessed their guilt during the trial of the case. 9- The trial court on hearing learned counsel for the parties and perusing evidence held accused/appellant Harpal Singh guilty of offences U/Ss 406 and 420 I.P.C. and sentenced him to undergo R.I. for three years and four years respectively. He was also fined for Rs. 500/- U/S 420 I.P.C. and in default of payment of fine to further undergo imprisonment for 10 days. However the accused Smt. Indu Ahuja was acquitted of the charges and the other two accused Krishna Chand Ahuja and Kuldeep Singh confessed their guilt. 10- Against the order of conviction and sentence passed by the trial court, the appeal was preferred b efore the Addl. Sessions Judge / Vth F.T.C., Dehradun and that appeal was dismissed. 11- Feeling aggrieved, the accused/appellant Harpal Singh has filed this appeal before this Court. 12- I have heard learned counsel for the parties and perused the record. 13- Learned counsel for the appellant has firstly argued that the appellant had infact resigned from the Company on 9-1-1998 while the postdated chqeue for 22-3-1998 was issued by the appellant which was dishonoured 24-3-1998. Therefore, accused/appellant was not Managing Director of the Company on 22-3-1998, hence he is not liable for the alleged offence. 14- The record reveals that the complainant Prem Chand, who has been produced as P.W.1 before the trial court, has deposed that he deposited a sum of Rs. 10,000/- on 22-3-1995 for a period of three years on the assurance given by the accused/appellant that on maturity the money will be returned back with handsome interest. The accused/appellant also issued the postdated cheque dated 22-3-1998 for a sum of Rs. 16,850/-. P.W.2, A.K. Jain was the Branch Manager in the Oriental Bank on 22-3-1998 and he has deposed that when the cheque was presented in his Bank on 22- 3-1998 it was dishonoured. It is, therefore, quite clear that the cheque which was issued in favour of the complainant by the accused/appellant bears signature of the accused/appellant who was occupying the post of Managing Director in the Company on the date of issuing the cheque. The accused/appellant being the Managing Director of the Company had occupied the key post and it was only on the basis of the assurance made by him, the complainant invested a sum of Rs. 10,000/- in the Company. Therefore, the argument advanced by the learned counsel for the appellant is of no avail that on 22-3-1998 the accused/appellant was not occupying the post of Managing Director in the Company, hence he is not liable for the alleged offence. 15- Learned counsel for the appellant has cited before me the case of Rajan Kinnerkar Versus Eric Cordeiro and another reported in 1994 (2) Crimes page 259 (Bombay High Court) and has submitted that although the cheque was issued by the accused/appellant as Managing Director of the Company but he ceased to be the Managing Director of the Company by the time the cheque was presented and dishonoured, therefore, he is not liable for the offence. 16- The Ruling cited by the learned counsel for the appellant does not apply to the facts of the present case. This case is not U/S 138 of the Negotiable Instruments Act and the ingredients of Section 406 I.P.C. are clearly attracted in this case. The evidence on record establish that it was the accused/appellant who committed criminal breach of trust. Further the evidence on record also establish the appellant cheated complainant and thereby dishonestly induced him and deceived to deliver a sum of Rs. 10,000/- in the Company. 17- On the basis of the assessment of the evidence, I come to the conclusion that the accused/appellant has been rightly convicted and sentenced by both the courts below. I do not find any infirmity in the impugned judgment and order passed by the courts below. 18- The trial court as well as the lower appellate court have recorded the concurrent finding of fact pertaining to the guilt of the accused/appellant and I do not find any ground to interfere with the concurrent finding of fact recorded by both the courts below. 19- Accordingly the jail appeal lacks merit and is dismissed. (B.C. Kandpal, J.) Dated: July 27, 2006. ISB