TMI Blog2021 (11) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... en the Statement of P.W.14 as gospel truth, based on Exhibit 23, the response of P.W.14. Further, no Witness was ever produced from the Syndicate Finance Pvt. Ltd. to prove that the Respondent No.1 had ever deposited or not deposited any amount by way of Promoter s Capital Contribution and no investigation appears to have been conducted on this aspect. The onus would shift on the Respondent No.1 only if the Prosecution had conducted investigation as to whether the money taken by the Respondent No.1 had been deposited and on concluding that no amount was deposited by the Respondent No.1 in any of the Financial Institutions mentioned above, the onus would fall on the Respondent No.1 to prove how he had misappropriated the amount. The Prosecution cannot shirk its burden of proving its case beyond a reasonable doubt nor foist such responsibility on the Accused. Hence, the ingredients of Section 405 of the IPC, have clearly not been established. The entire matter of the Appellant appears to pivot around the dishonouring of the Cheque Exhibit 15, for a sum of ₹ 10,00,000/- only, issued by the Respondent No.1 to the Appellant on 30.12.2014, on the ground of insufficiency of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lose relative and having handled the Hotel Loan Project of his relative s wife, the Appellant agreed to the proposal. Pursuant thereto, for the said purpose the Respondent No.1 took a total sum of ₹ 42,70,000/- (Rupees forty two lakhs and seventy thousand) only, in two tranches by executing two Money Receipts, the first comprising of ₹ 12,70,000/- (Rupees twelve lakhs and seventy thousand) only, in March, 2013, and the second being a sum of ₹ 30,00,000/- (Rupees thirty lakhs) only, in August, 2013 as Promoter s Capital Contribution. That, the Appellant suspected that the Respondent No.1, instead of investing the money for the required purpose, invested it in Nirmal Bang Broking House of which he was a Franchisee, for his personal benefit. Despite repeated requests, the Respondent No.1 refused to return his money. On 04.11.2014, the Appellant warned the Respondent No.1 that should he fail to return his money, he would be compelled to take necessary legal action against him. Thereupon, on 07.11.2014, the Respondent No.1 executed Exhibit 1, an Agreement, wherein he promised to pay the Appellant, the aforestated amount in three installments towards which, he issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue the three Cheques, instead he would have approached the Police Station regarding the threat. Accordingly, it was concluded that the Prosecution had been able to establish the ingredients of the offence under Sections 406 and 420 of the IPC beyond a reasonable doubt. (iv) Dissatisfied with the Judgment of Conviction and Order on Sentence, the Respondent No.1 was before the Learned First Appellate Court, which while reversing the Judgment of the Learned Trial Court, concluded in sum and substance that there was no material evidence on record to prove that the Respondent No.1 had dishonestly misappropriated the money or converted it to his own use or disposed it of in violation of such trust. That, there was no evidence to prove that the Respondent No.1 had dishonestly taken the sum of ₹ 42,70,000/- (Rupees forty two lakhs and seventy thousand) only, from the Appellant. There was no evidence to prove that the Respondent No.1 had invested the amount in Nirmal Bang Broking House apart from which, the I.O. had admitted that such Broking House had closed since 2011. It was also concluded that in the absence of proof that the Respondent No.1 had misused the amount for his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Emphasis supplied] (ii) In Mallikarjun Kodagali (Dead) Represented through Legal Representatives vs. State of Karnataka and Others (2019) 2 SCC 752, a three Judge Bench of the Hon ble Supreme Court, was considering the following; 8. The rights of victims, and indeed victimology, is an evolving jurisprudence and it is more than appropriate to move forward in a positive direction, rather than stand still or worse, take a step backward. A voice has been given to victims of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that it is clearly heard. 9. With this background, we need to consider the questions that arise before us consequent to the introduction of the proviso to Section 372 CrPC with effect from 31-12-2009. The questions are somewhat limited : Whether a victim as defined in CrPC has a right of appeal in view of the proviso to Section 372 CrPC against an order of acquittal in a case where the alleged offence took place prior to 31-12-2009 but the order of acquittal was passed by the trial court after 31-12-2009? Our answer to this question is in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt restored. To further fortify his contentions, succour was drawn from the ratiocination of State of Punjab vs. Pritam Chand and Others (2009) 16 SCC 769 and Sangeetaben Mahendrabhai Patel vs. State of Gujarat and Another (2012) 7 SCC 621. 5. Per contra, Learned Counsel for the Respondent No.1 submitted that the Learned First Appellate Court has rightly set aside the Magisterial Judgment which was bereft of reasons for the conviction of the Respondent No.1. That, the FIR, Exhibit 16, gives a false narrative, as only one Cheque had bounced at the time the FIR was lodged. The G.R. Case is also confined to the bouncing of one Cheque only but there are no supporting documents to show that the Cheque was returned. Although the Prosecution has tried to make out a case of three Cheques being returned, the other two Cheques have not been exhibited. Besides, the matter has already been decided by this Court under Section 138 of the Negotiable Instruments Act, 1881, in Criminal Appeal No.33 of 2018, Criminal Appeal No.34 of 2018 and Criminal Appeal No.35 of 2018. That, the ingredient of Sections 406 and 415 of the IPC have remained unproved. Although Exhibits 12, 13 and 14 may indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust. Explanations 1 and 2 of the provision are not being extracted herein for the reason that it is not necessary for the facts of the instant case. The essential ingredients for an offence under Section 405 of the IPC are as under; 1. A person should have been entrusted with property or entrusted with dominion over property; 2. He should have dishonestly misappropriated or converted to his own use that property, or dishonestly used or disposed off that property or willfully suffered any other person to do so; and 3. Such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 9. Admittedly, money did not change hands on that date, but had been made over in the months of March, 2013 and August, 2013, however, Exhibit 1 the Agreement, clarifies this aspect, inasmuch as it reads inter alia as follows; And whereas, the actual payment of ₹ 10,00,000/- (Rupees Ten Lakhs) only and ₹ 2,70,000/- (Rupees Two Lakhs Seventy Thousand) only was made to the Second party in the month of March, 2013 for the purpose of processing of ₹ 50,000,000/- (Rupees Five Crore) only for said Project Loan. It is further stated that; The Second Party thereafter demanded ₹ 30,00,000/- (Rupees Thirty Lakhs) only from the First party as Promoter s Capital contribution. Since, the proposal brought in was from a reputed institution, the First Party managed ₹ 30,00,000/- (Rupees Thirty Lakhs) only paid the said amount to the Second Party as Promoters Capital Contribution for the Hotel Project loan from ICCI, Kolkata in the name of Shri Tanam Subba, son of Shri Sancha Bdr. Subba (First Party), resident of Middle Burtuk, East Sikkim in the month of August, 2013. These documents thereby establish Entrustment. The decision in State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in the Complaint and material were to be taken on their face value, no such dishonest representation or inducement could be found or inferred. In the matter at hand before this Court, it was not, in fact, a Loan taken by the Respondent No.1 but he had assured the Appellant by placing a proposal before him that he would help him avail Loan for which 2% Processing Fee advance payment for the Loan of Rupee Five Crores was required and thereafter taken a sum of ₹ 42,70,000/- (Rupees forty two lakhs and seventy thousand) only, from the Appellant. No mens rea has been proved on such act of the Respondent No.1. (v) Admittedly, entrustment has been established in the matter at hand, yet it is trite to state that mere entrustment cannot constitute the offence under Section 405 of the IPC. To establish an offence under this Section, the fact of entrustment of the property as well as any or more of the ingredients detailed above have to be established by the Prosecution, the gist being a dishonest intention on the part of the Accused. The burden of proving such dishonest intention is on the Prosecution, which can justifiably be inferred from the attending circumstances, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Bank. It was also not proved by the Prosecution that the Draft Indenture dated 02.12.2013 referred to by the Witness, was prepared by the Respondent No.1. In fact, the Witness has not been able to establish who the parties between whom the Draft Indenture dated 02.12.2013 was executed. According to him, I thereafter, stated to the investigation officer through a letter dated 26.06.2015 that our office had received a draft indenture dated 02.12.2013 executed between the Indian Chamber of Commerce where the address of the office has been mentioned as Cock Burn Lane, Church Road, Kolkotta . I took the same draft and referred/verified it with the business finance leader and Mr. Tanam Subba, proprietor of hotel Basera for authentication. The Witness further stated, ..While going through the draft indenture I had also noticed that the same had been executed between the Chairman of the chamber and Mr. Tanam Subba, Proprietor of hotel Basera. However, there is no Chairman of the chamber as mentioned in the said draft nor has the chamber ever authorized any person to negotiate or execute any such deals with any party under any circumstances whatsoever. The evidence of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat. Explanation .-A dishonest concealment of facts is a deception within the meaning of this section. Section 420 of the IPC reads as under ; 420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The sine qua non for the offence under Section 420 of the IPC is the dishonest intention of the person concerned at the time the money was handed over to him on the inducement made by the Accused. Hence, the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of P.B. Subba and Naina Kumari Subba evidently in the year 2011 and do not bear the name of the Respondent No.1. He has admitted that he did not have any proof that the Respondent No.1 had deposited the money in Nirmal Bang Securities Pvt. Ltd. for his personal benefit. On pain of repetition, it may be stated here that this would have been an impossibility considering that Nirmal Bang Broking House closed down in 2011 while the Appellant had handed over money to the Respondent No.1 in 2013. The entire matter of the Appellant appears to pivot around the dishonouring of the Cheque Exhibit 15, for a sum of ₹ 10,00,000/- (Rupees ten lakhs) only, issued by the Respondent No.1 to the Appellant on 30.12.2014, on the ground of insufficiency of funds in the Account of the Respondent No.1 pursuant to which, he lodged the FIR Exhibit 16. It is worth noting that Exhibit 1 was executed between the parties and mere breach of the terms of Exhibit 1 ipso facto does not constitute the offence either of Criminal breach of trust as provided under Section 405 of the IPC or of cheating under Section 420 of the IPC nor is mens rea deducible. (iv) The Evidence-in-Chief of the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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