Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 915 OF 2022
(ARISING OUT OF SLP (CRL.) NO.800 OF 2021)
Malkeet Singh Gill .….Appellant
Versus
The State of Chhattisgarh …..Respondent
J U D G M E N T
J.K. Maheshwari, J.
Leave granted.
2. The appellant has filed the present appeal against the
judgment dated 13.02.2020 passed by the High Court of
Chhattisgarh at Bilaspur in Cr. R No. 95 of 2005, whereby the
High Court has upheld the order dated 29.01.2009 passed by
the Additional Sessions Judge, Raipur in Criminal Appeal No.21
of 2004 and the order dated 16.12.2003 passed by the Chief
Judicial Magistrate, Dhamtari in C.C. No.1589 of 2003. While
Signature Not Verified
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2022.07.05
14:29:28 IST
Reason:
convicting the appellant for the charges under Sections 409,
420, 409 read with Section 120B and 420 read with Section
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120B of the Indian Penal Code (in short ‘IPC’), the Trial Court
sentenced them to undergo rigorous imprisonment of 04 years,
07 years, 01 year and 02 years respectively along with fine of
Rs.10,000/, Rs.50,000/, Rs.1,000/ and Rs.2,000/
respectively. The Trial Court and the Appellate Court directed to
serve the sentences one after the other. The High Court while
allowing the Revision in part directed that sentences so awarded
shall run concurrently.
3. The facts briefly put are that, one Ambika Prasad was
the Director of the Company namely Revanchal Vitta and
Commercial Vikas Limited Company (herein after referred to as
‘the Company’) and the appellant/accused No.2 was the Area
Manager of the Company. The Company was engaged in the
activity of collecting money through its agents by deposits like a
Bank and assured to give 8 to 10% annual interest to the
depositors. The passbook and ledger accounts were also kept
and maintained by the Company with respect to deposits. The
money deposit receipts were also given to the depositors. The
depositors have made deposits with intent to earn interest, as
promised. Upon maturity when the return of deposits was asked
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with interest, it was denied and later the Company was closed.
Alleging said fact, the complainant namely Ajay Kumar Meenwal
filed a written complaint on 12.06.1998 against Ambika Prasad
and the appellant/accused No.2 for deceiving him and the
public at large under the guise of wrong information, that their
Company is recognized by Reserve Bank of India. They induced
the depositors offering attractive return, but on taking deposit
the amount of such deposit was not returned at the time of
maturity and their deposit amount is misappropriated. On the
complaint, as per allegations, initially offence under Section 420
of IPC was registered. Upon further investigation, the passbook,
receipt, ledger accounts etc. were seized, statements of
witnesses were recorded and offences under Sections 467, 468,
471, 120B read with Section 34 of IPC were added.
4. The Trial Court framed the charges under Sections
409, 420, 467, 468 read with Section 120B of IPC and
examined 24 prosecution witnesses. After detailed deliberation
and considering the rival contentions of the parties, the Trial
Court convicted the accused persons for the charges under
Sections 409, 420, 409 read with 120B and 420 read with 120
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B of IPC as the charges under Sections 467 and 468 of IPC have
not been proved beyond reasonable doubt. Being aggrieved, the
appellant and other coaccused challenged their conviction
before Additional Sessions Judge, Dhamtari. The Appellate
Court vide judgment dated 29.01.2005 dismissed the appeal
and upheld the order of conviction and sentences as directed by
the Trial Court.
5. Assailing the order passed by the Trial Court and the
Appellate Court, appellant and the other coaccused filed
Criminal Revision Nos.95 of 2005 & 89 of 2006. The High Court
maintained the conviction with the observation that commission
of an offence under Section 409 of IPC has been proved because
the agents were functioning under the instructions of the
appellant. The depositors deposited the amount under a trust
which has been breached by not refunding the same by the
company. Thus, the Court while affirming the finding to prove
the guilt of charge under Section 420 IPC also maintained the
conviction for an offence under Section 409 IPC assigning the
reasons that appellant has failed to show any authorization by
the Reserve Bank of India, and other sanctions required from
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the Finance Department and also of other authorities of Central
Government. However, the High Court while maintaining the
conviction directed that the sentence so awarded shall run
concurrently and the findings of the courts below to such extent
be set aside.
6. Appellant by filing the instant appeal contends, the
charges for an offence under Sections 420 and 409 of IPC are
antithetical to each other, hence the appellant cannot be
convicted for both the charges. It is said the charges under
Section 420 of IPC is not made out since the prosecution has
failed to prove ‘dishonest intention’ of cheating; the appellant
was only an employee and has been made a scapegoat for the
purpose of selective prosecution; the ingredients of Section 409
are not made out since the prosecution has failed to prove that
the amount which was deposited was misappropriated by the
appellant for his own use.
7. Per contra, learned counsel for the respondent has
argued to support the findings recorded in the impugned
judgment and urged the findings of conviction concurrently
recorded by the courts below are neither perverse nor against
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the law and do not warrant interference by this Court. It is said
the ingredients for an offence under Sections 409 and 420 of the
IPC have rightly been proved in the instant case by the courts
below; the argument regarding conviction of Sections 409 and
420 of the IPC both being antithetical was never raised before
the courts below, which cannot be permitted to raise at this
stage.
8. Heard Mr. Awanish Kumar, learned counsel for the
appellant and Mr. Sourav Roy, Deputy Advocate General for the
State of Chhattisgarh and perused the record. Before adverting
to the merits of the contentions, at the outset, it is apt to
mention that there are concurrent findings of conviction arrived
at by two Courts after detailed appreciation of the material and
evidence brought on record. The High Court in criminal revision
against conviction is not supposed to exercise the jurisdiction
alike to the appellate Court and the scope of interference in
revision is extremely narrow. Section 397 of Criminal Procedure
Code (in short ‘CrPC’) vests jurisdiction for the purpose of
satisfying itself or himself as to the correctness, legality or
propriety of any finding, sentence or order, recorded or passed,
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and as to the regularity of any proceedings of such inferior
court. The object of the provision is to set right a patent defect
or an error of jurisdiction or law. There has to be wellfounded
error which is to be determined on the merits of individual case.
It is also well settled that while considering the same, the
revisional Court does not dwell at length upon the facts and
evidence of the case to reverse those findings.
9. This Court in the case of ‘Manju Ram Kalita vs State
, while dealing with the scope of
of Assam (2009) 13 SCC 330’
reappreciation of evidence by higher Court in criminal revision,
observed in paragraphs 9, 10 and 11 of the judgment as under
“9. So far as Issue 1 is concerned i.e. as to whether the
appellant got married with Smt Ranju Sarma, is a pure
question of fact. All the three courts below have given
concurrent finding regarding the factum of marriage
and its validity. It has been held to be a valid
marriage. It is a settled legal proposition that if the
courts below have recorded the finding of fact, the
question of reappreciation of evidence by the third
court does not arise unless it is found to be totally
perverse. The higher court does not sit as a regular
court of appeal. Its function is to ensure that law is
being properly administered. Such a court cannot
embark upon fruitless task of determining the issues
by reappreciating the evidence.
10. This Court would not ordinarily interfere with the
concurrent findings on pure questions of fact and
review the evidence again unless there are exceptional
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| circumstances justifying the departure from the normal<br>practice. | |
|---|---|
| “8. ….The position may undoubtedly be different if<br>the inference is one of law from [the] facts<br>admitted and proved or where the finding of fact<br>is materially affected by violation of any rule of<br>law or procedure.” | |
| 11. Thus, it is evident from the above that this Court being<br>the fourth court should not interfere with the exercise<br>of discretion by the courts below as the said courts<br>have exercised their discretion in good faith giving due<br>weight to relevant material and without being swayed<br>by any irrelevant material. Even if two views are<br>possible on the question of fact, we, being the fourth<br>court, should not interfere even though we may<br>exercise discretion differently had the case come<br>before us initially. In view of the above, we are not<br>inclined to interfere with the finding of fact so far as<br>the issue of bigamy is concerned nor the quantum of<br>punishment on this count is required to be interfered<br>with.” |
10. As per the settled legal position and after conviction by
the Trial Court and the Appellate Court on filing the revision
the High Court maintained the conviction upholding the
findings of the two courts. The High Court found the finding
recorded by the two Courts to serve the sentence consecutively
by the appellant and the other coaccused were not correct,
hence set aside and directed to run such sentence
concurrently. In our considered opinion, the finding of fact as
recorded by the Trial Court and the Appellate Court has rightly
not been interfered while maintaining the conviction against the
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appellant. On the issue of sentence also the direction as issued
by the High Court is in consonance with the provisions of
Section 31 of Cr.P.C which confer full discretion to the Trial
Court as well as Appellate Court to order the sentences to run
concurrently in case of conviction for two or more offences.
11. In light of the above observation made, this Court in
the case of
Sunil Kumar @ Sudhir Kumar & Anr v. The
relied upon
State of Uttar Pradesh (Crl. Appeal 526 of 2021)
the judgment of
O.M. Cherian alias Thankachan v.State of
wherein the Court in
Kerala & Ors. (2015) 2 SCC 501,
paragraphs 20 and 21 held the following:
“20. Under Section 31 CrPC it is left to the full discretion of
the court to order the sentences to run concurrently in case
of conviction for two or more offences. It is difficult to lay
down any straitjacket approach in the matter of exercise of
such discretion by the courts. By and large, trial courts and
appellate courts have invoked and exercised their discretion
to issue directions for concurrent running of sentences,
favouring the benefit to be given to the accused. Whether a
direction for concurrent running of sentences ought to be
issued in a given case would depend upon the nature of the
offence or offences committed and the facts and
circumstances of the case. The discretion has to
be exercised along the judicial lines and not mechanically.”
“21. Accordingly, we answer the reference by holding that
Section 31 CrPC leaves full discretion with the court to order
sentences for two or more offences at one trial to run
concurrently, having regard to the nature of offences and
attendant aggravating or mitigating circumstances. We do
not find any reason to hold that normal rule is to order the
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sentence to be consecutive and exception is to make the
sentences concurrent. Of course, if the court does not order
the sentence to be concurrent, one sentence may run after
the other, in such order as the court may direct. We also do
not find any conflict in the earlier judgment in Mohd. Akhtar
Hussain and Section 31 CrPC.”
12. In our considered opinion, there is no infirmity in the
order passed by the High Court. Accordingly, the appeal is
dismissed.
………………………..J.
(INDIRA BANERJEE)
……........................J.
(J.K. MAHESHWARI)
New Delhi;
July 05, 2022.
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