S.N. Deedwania, J.
1. Petitioner Shrinath has filed these three criminal revisions against the judgments of learned Additional Sessions Judge No. 2, Jodhpur, whereby conviction and sentence awarded to him by learned Assistant Sessions Judge, Jodhpur in these cases were affirmed as described below:
Particulars of cases Sentence affirmed by the Addl. SessionsJudge1. S.B. Cr. Rev No. 452/75 Under Sections 420, 465, 467, 468 & 472 IPC 6 mon-Shrinath v. State ths R.I. and a fine of Rs. 500/* on eachcount and in default of payment offine further 6 months R.I. vide judg-ment dated 12-12-1975 in Cr. AppealNo. 6/1972.2. S.B. Cr. Rev. No. 453/75 Under Sections 420, 465, 467, 468 & 472 IPC 6Shrinath v. State months R.I. and fine of Rs. 500/- oneach count and in default of paymentof fine further 6 months R.I. videjudgment dated 12-12-75 in Cr. AppealNo. 7/1972.3. S.B. Cr. Rev. No. 451/75 Under Sections 420, 465, 467, 468 & 472 IPC 6Shrinath v. State months R.I. and a fine of Rs. 500/-on each count and in default of pay-ment of fine further 6 months R.I.vide judgment dated 12-12-75 in cr.appeal no. 8/1972
These three revisions are disposed of by this order as they involved common questions of law and facts and also the relevant evidence in all the three trials were similar. The case according to the prosecution relating to criminal revision No. 452 was this. The petitioner was the Secretary of Bilara Dudh Utpadak Sahkari Samiti, Bilara in the year 1963. In the month of February 1963, he published an advertisement in India Express inviting applications for 91 posts for the Samiti. The applications were to be submitted on prescribed form obtainable from the office of the Samiti on payment of fees. Ishwarlal Garg of Kota applied for the post of Steno-typist. The Petitioner informed him that the Samiti had decided to call only those persons who would deposit Rs. 100/- and asked him to send the same before 15-3-1963. It was given to understand that this amount was refundable. On 13-3-1963 the petitioner sent him another letter to remit the money at the Bombay address because the executive body of the Samiti was proceeding there to purchase machinery. Ishwarlal Garg, consequently sent money order of Rs. 100/- to the petitioner at Bombay and was duly acknowledged by him vide his letter dated March 31,1963 from Jodhpur. It is further alleged by the prosecution that on 4-3-1963, the services of the petitioner had been dispensed with and he had no concern with the Samiti. Thereafter the petitioner shifted to Jodhpur and got prepared Various seals of the Samiti and got some stationery printed in the name of the Samiti. The petitioner then started running office at Jodhpur as if he was running the Office of the Samiti Thereafter he took into his head to advertise 91 posts for the purpose of taking deposit monev and security amount from various applicants with a view to cheat them. Ishwarlal Garg did not hear anything from the petitioner and, therefore, he pressed the petitioner for further action and refund of Rs. 100/-. The petitioner called Ishwarlal Garg for interview on 15-5-63. Ishwarlal appeared for interview and also asked for refund of the money. However, the money was not returned to Ishwarlal and also any employment was not given to him. On 10-7-1963, Ishwarlal made a report in the police station, Sardarpura at Jodhpur under Sections 465 and 467 IPC and after usual investigations, a challan was presented against the petitioner who was duly committed and then tried by the Assistant Sessions Judge, Jodhpur and convicted in the manner indicated above
2. The facts in criminal revision No. 451/- of 1975 Shrinath v. State are that the complainant was one Sohagsingh. He was also made to part with the security amount of Rs. 100/- and he worked as an employee of the Samiti for about a month. The petitioner failed to pay him any salary and to reund Rs. 100/-.
3. The facts in criminal revision No. 453 of 1975 Shrinath v. State are that the complainant was one Ghera and Rs. 250/- were taken from him. The general allegation in all the three cases was that the petitioner had cheated by the aforesaid device several persons. It may however, be stated that in criminal case No. 108/65 relating to the complaint of Ishwarlal Garg, the amount cheated was Rs 100/-. In the case relating to the complaint of Vedprakash, charge was also only in respect of Rs. 100/- alleged to have been cheated from him. The third case related to the complaint of Ghera and the amount of Rs 1000/- was alleged to have been cheated from various applicants including Ghera.
4. I have heard learned Counsel for the petitioner and Public Prosecutor for the State and perused the record of the cases carefully. From the facts as alleged by the prosecution it appears that the pivot of the prosecution case in all the three trials was that the petitioner was removed from the Secretaryship of the Samiti on 4-3-1963 and yet thereafter continued to give out that he was the Secretary of the Samiti and was acting on its behalf with a view to cheat various persons applying for the jobs under the Samiti in persuance of the advertisement published in the Indian Express. The petitioner could not have published the advertisement in the Indian Express as so many appointments were not to be made in the Samiti. The petitioner did so for cheating the various applicants by taking from them the security money. This pivot of the prosecution ease was disbelieved by both the courts below. It was thus observed by the appellate court in criminal appeal No. 6/1972 from which criminal revision No. 454/75 arises:
The resolution Ex. P. 1 by which the accused was removed from service on 4-3-1963, is of course a false resolution. It is signed by Indernath while the other member who had put their signatures on it were not even present at the time of the passing of the resolution. Rajuram signed it on 24-6-1962 and has clearly admitted that he was not present when the resolution was passed. Inder Nath himself has admitted those facts. The minute book, in which the resolution was passed, remained in the custody of Indernath in his office as is admitted by the witness and he could have written anything in it and got some members to sign lateron. To my mind there is no sancitity of this resolution which was passed by Indernath most properly in an effort to protect himself when this case came to light and throw the entire blame on the accused.
The appellate court maintained the conviction of the petitioner on the ground that the circumstances indicate that it was a conspiracy between Indernath and the petitioner to cheat the people. It was thus observed by the appellate court in the aforesaid judgment:
To my mind these facts do not bring any protection to the accused and on the contrary they indicate that it was a conspiracy between Indernath and the accused to cheat the people and both of them worked with each other and hatched out the present plan to earn money by illegal means.
The admitted facts in all the three cases are these.
(i) Petitioner published the advertisement in the Indian Expess in the month of February, 1963 inviting applications for 91 jobs under the Samiti.
(ii) Indernath was the President of the Samiti.
(iii) The settled position is that the petitioner continued as the Secretary of the Samiti and he was never removed by any resolution like Ex. P. 1
(iv) The petitioner got prepared various seals of the Samiti and other articles and stationery.
(v) He also established an office in Jodhpur.
(vi) Numerous applications were received by the petitioner and he received some amount by way of deposit and in any case he received the amount by way of deposit by various applicants as specially alleged by the prosecution as indicated in three cases.
5. The defence of the petitioner was that in fact the Samiti decided to extend its business activities to Jodhpur and he was entrusted with this job. He had no intention to cheat any body & his actions were bonafide as he was trying to establish the business on behalf of Samiti under its instructions. In substance the defence of the petitioner is that he had no dishonest intention and has not deceived any person fraudulently or dishonestly to part with any money to him. The petitioner produced resolution Ex. D. 2 dated 4-1-1963 by which the Samiti resolved that the office be shifted 10 Jodhpur which had a better market and he was asked to arrange for accommodation. He has also produced Ex. A dated 30-4-1963 and another letter Ex. 13. The appellate court did not believe the defence disclosed in these letters on the ground that they were not received in the office of the Registrar. I am of the opinion that there was no material on the record of the case to indicate that these two letters were not written to the Assistant Registrar, Co-operative Societies. In these letters the progress of the activities of the Samiti with regard to the establishment of the business at Jodhpur is indicated. Another letter Ex. C dated 22-3-1963 was written to the Vikas Adhikari, Panchayat Samiti, Bilara informing him that the petitioner and Indernath had placed an order for machinary which would be supplied by the end of July, 1963 and requested him to arrange for certain facilities for establishing an office at Jodhpur. The petitioner in his statement under Section 342 Cr. P.C. (old) stated that he went to Bombay along with Indernath for purchasing the machinery. Indernath said that he did go to Bombay along with the petitioner but could not say for what purpose. The statement of Indernath is obviously false in view of the letter dated dated 22-3-1963 Ex. C Resolution Ex. D. 2 dated 4-2-1963 of the Samiti is relevant in this respect as by this resolution, two members of the Samiti were directed to go to Bombay for training etc. The stay of the petitioner Indernath at Bombay is further proved by the testimony of Bhopatram. The appellate court in these circumstances rightly posed the question that when the petitioner was working in pursuance of resolution Ex. D. 2 and under the instructions of Indernath, could it be said that he had any wrong motive. The appellate court yet came to the decision as to the dishonest intention of the petitioner on certain facts which in my opinion do not conclusively lead to this inference. The appellate court observed that the advertisement was for as many as 91 posts and their monthly wage bill would come to Rs. 5000/- per month. According to the appellate court this itself showed the dishonest intention of the petitioner. I am not inclined to agree with this view. There is no evidence on the record of the case to indicate that immediate appointments to all the 91 posts were proposed to be given. It is further observed by the appellate court that a resolution Ex. D. 2 merely authorised the accused to arrange for some accommodation for Samiti Office and the petitioner had no authority to actually establish the office and make appointments and take security deposits from them In my opinion the appellate court placed too narrow a constructionon Ex. D. 2 and completely lost sight of the fact that the petitioner was informing his activities from time to time to the Block Development Officer, Panchayat Samiti Bilara and to the Assistant Registrar, Cooperative Societies, at Jodhpur. It is also no where in evidence that these actions of the petitioner were not within the knowledge of the Samiti. Even at the best it may be a case of acting in excess of the authority but by any stretch of imagination from these acts it could not be inferred that from the very inception the petitioner had any dishonest intention to deceive the various applicants in parting with their money by way of deposits. The appellate court was in error in observing that the letters written from Bombay by Indernath showing that the Samiti intended to start factory at Jodhpur are of no help to the petitioner as the former was an accomplice. It may be stated that Indernath was an accomplice of the petitioner in this project for the purpose of deceiving people with dishonest intention to induce various applicants to part with their money was never the case of the prosecution. There is not an iota of evidence on the record of the case to show that Indernath was an accomplice of the petitioner or both of them had entered into a conspiracy to cheat various applicants.
6. The appellate court further observed that the Samiti had no capital to start the factory at Jodhpur on such a large scale. There is no evidence on the record of the case about the working capital of the Samiti or how the Samiti was likely to raise the working capital. At the best it can be said that the Samiti, Indernath and the petitioner started on a fool hardy venture without the requisite resources at their disposal. Their act was the result of some indiscretion but from this alone it is not possible to attribute any scheme of cheating to petitioner and Indernath. The appellate court without evidence on the record has observed that petitioner published the advertisement, received the applications and started on such a venture without consent of the Samiti. It was for the prosecution to prove that this venture of the petitioner had not the blessings of the Samiti. The learned appellate court has made extensive references to the cash book maintained by the petitioner at Jodhpur office to indicate that he had no capital at his disposal to under take such a venture. However, the prosecution did not dare to lead any evidence to indicate that any of the entries made in the cash book Ex. X was false. The only lacuna found in the cash book was that an entry relating to Rs. 2,000,- which were advanced to the petitioner by the Samiti by way of initial expences was not written in it. In my opinion it was of little consequence but the fact remains that the petitioner maintainyd true account of the amount received by him. For all these reasons I am of the view that there is no evidence on the record of all the three cases to indicate that the petitioner had cheated anyone. In this view the charges against the petitioner in all the three cases under Sections 465, 467, 468 and 473 I.P.C. also fail through.
7. In the result, all the three revision petitions are accepted, and the petitioner is acquitted of all the charges for which he was convicted and sentenced. The petitioner is on bail and need not surrender to his bail bonds, which are hereby cancelled. The record of the Samiti and the various articles recoverd from the possession of the petitioner during the course of investigation be returned to the Samiti.