IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No.403 of 2005 Date of decision: March 19, 2010 Roshan Lal and another .. Petitioners Vs. State of Haryana .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Ranjit Saini, Advocate for the petitioners. Mr. Rajiv Malhotra, Addl. A.G. Haryana for the respondent. A.N. Jindal, J Initially, the trial court vide its judgment dated 26.2.2001, convicted and sentenced both the accused petitioners (Roshan Lal and Joginder Singh) to undergo rigorous imprisonment for three years and to pay fine of Rs.2000/- each, whereas, remaining accused/non-petitioners were sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1000/- each under Section 420 read with Section 34 IPC. However, in appeal, vide judgment dated 14.2.2005 the present petitioners were acquitted under Section 420 IPC, but were convicted and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.2000/- each under Section 406 IPC, however, the remaining accused were acquitted. The facts, in the background of the case, are that Ravi Chand Sharma complainant (herein referred as 'the complainant') in his complaint dated 31.10.1991 had disclosed that the accused persons had floated a company in the name and style of M/s Vishw Kiran Saving and Finance Limited, having its head office at S.C.O. No.2433-2434, Sector 22-C, Chandigarh and branch office at village Chhachhrauli. The complainant was induced to open two accounts of his children in the branch office at Chhachhrauli bearing account Nos.2882 and 4120 and to deposit an amount of Rs.3600/- in each account. These accounts were in the name of his daughter Baby Dimple as well as Gulshan Kumar, his son. He further complained that on maturity of the account, he met Brij Bhushan and Raj Kumar Manager of the company for reimbursing him the amount. But, they Criminal Revision No.403 of 2005 -2- *** continued putting off the matter and ultimately they absconded after closing their office. They also played fraud on other people while not returning their amount and mis-appropriating the same. On the basis of the aforesaid complaint, FIR No.171 dated 31.10.1991 was registered against the accused persons. ASI Dharampal conducted the investigation, but later on it was handled by ASI Sham Lal and ASI Babu Ram. Investigating Officer arrested the accused and took into possession the passbooks, ledgers, cash books etc. On completion of the investigation, challan against the accused under Section 420 IPC read with Section 4 of the Prize Chit and Money Circulation Scheme (Banning) Act, 1978 was presented in the court. They were charged under Sections 420 IPC read with Section 4 of the Prize Chit and Money Circulation Scheme (Banning) Act, 1978, (herein referred as 'the Act')to which they pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined Ravi Chand Sharma (PW1), Dharam Singh (PW2), ASI Babu Ram (PW3), Vijay Verma (PW4), Sahi Ram (PW5), ASI Sham Lal (PW6), Lal Chand (PW7), Tirath Singh (PW8), Mam Chand UDC (PW9), HC Ajmer Chand (PW10), C. Jagdev Singh (PW11), Pritam Singh (PW12), Jaswant Singh (PW13), Ramesh Kumar (PW14), Soran Singh (PW15), Tirath Singh (PW16), Krishan Chand (PW17), ASI Dharam Pal (PW18) and Paujdar Singh (PW19). When examined under Section 313 Cr.P.C. all the accused denied the incriminating circumstances appearing against them and pleaded their false implication in the case. They examined Harbans Singh UDC (DW1) in their defence. On appreciation of evidence, the trial court convicted all the accused persons, who preferred two appeals. The First Appellate Court vide its judgment dated 14.2.2005 while accepting the appeal qua Raj Kumar, Jagdish Chand, Brij Bhushan and Iqbal Mohammad, dismissed the appeal of the petitioners with the observations that they had committed an offence under Section 406 IPC and not under Section 420 IPC and ordered them to undergo rigorous imprisonment for two years and to pay fine of Rs.2000/- each under Section 406 IPC. Criminal Revision No.403 of 2005 -3- *** Arguments heard. Record perused. No force could be found in the contention that out of the four directors of the company the complainant had arrayed only two persons as accused and the remaining two persons namely Rajinder Singh and Hakam Singh were not impleaded as accused because two directors are proved to have been actively working for and on behalf of the company and they were the persons responsible for the wrongful act committed by the company. The case was also not liable to fail for not impleading the company as accused because company is not a juristic person and the persons responsible for conducting of the business in the ordinary course of nature were the necessary parties to be impleaded. It has been admitted by Harbans Singh UDC (DW1) as well as Dharam Singh (PW2) that Roshan Lal Saini was appointed as Managing Director on 25.7.1984 and the allegations with regard to embezzlement of the amount deposited by the complainant are after he was appointed as Managing Director. The amount received by the accused through his employees (since acquitted in the case) was with the promise that the same would be returned along with certain benefits but the accused while going against the promise of contract misappropriated the amount thereby cheated the complainant. There is no merit in the contention that the facts which have come in defence could not be used against the accused. The court is to examine the entire evidence led by the rival parties so also the circumstances to reach the truth and to find out if any offence is proved to have been committed by the accused. Both the courts below have reached the right conclusion, on appreciation of evidence, that the accused after inducing the complainant, forced him to part with a sum of Rs.7200/- with a promise to return the same on maturity and not to misappropriate the same, but they misappropriated the said amount, not only of the complainant but the other investors also. I also do not agree with the contention that since no promise was made by the accused at the time of deposit by the complainant, therefore, the question of misappropriation does not arise. But, on examination of the voluminous evidence led by the prosecution, it could well be traced that the accused intentionally opened branch of their firm by making lucrative promises to enhance their money, as such, the investors Criminal Revision No.403 of 2005 -4- *** came to deposit the amount, but ultimately instead of returning the same they misappropriated it for their own use. The people who devise divergent ways to become rich overnight are really a curse to the poor in particular and the society as a whole and they do not deserve any leniency on the quantum of sentence and are to be strictly dealt with. Resultantly, finding no merit in the revision, the same is dismissed. March 19, 2010 (A.N. Jindal) deepak Judge