State of Punjab vs Mohan Singh and anr.

S.S. Rathor,J.

Present respondents Mohan Singh and Chajju Ram were prosecuted for offence under Section 420 of the Indian Penal Code on the allegations as contained in the FIR No. 211 dated 28.10.1982, lodged with Police Station Sirhind by Kuldip Kumar (PW19). The allegations in the FIR are that the accused floated a Janta Bhalai Scheme at Sirhind under which the General Public was induced to deposit with them money with the promise that after lapse of three months, the depositor would be entitled to the supply of goods of the value of three times of the amount deposited. The said scheme was given due publicity by way of circulation of pamphlets and proclamation through loud speakers. On such representations, the complainant and many others deposited lacs of rupees with the accused but without fulfilling their promise, they ran away with the money. On such like allegations in writing (Ex. PW19/A) the complainant approached the police who lodged the formal FIR (Ext. PW19/B).

The police investigated the case. All the records in the possession of the accused were taken into possession alongwith the goods lying in their shops. It is relevant to mention that most of the persons who had paid any money to the accused, were examined by the Investigating Officer under section 161 Cr.P.C. After collection of documentary and oral evidence, in the present case challan was put in Court against both the present accused respondents for offences under Sections 406/420 of the Indian Penal Code.

When they appeared before the trial court, after complying with the formalities on furnishing of relevant documents, the trial Court framed a charge against the accused under Section 420 of the Indian Penal Code vide order dated 27.10.1984 and the charge so framed runs as under :

"That during the month of August/September and October, 1982 you both the accused formed a Public Bhalai Scheme and you cheated Kuldip Kumar, Kehar Singh, Santokh Singh, Gurdev Singh, Jugesh Kumar, Gurumukh Singh, Subash Chand, Kuldip Kumar s/o Kundan Lal, Karam Singh for Rs. 800, 560/, 560/,480, 760, 160, 3840, 1800/ respectively and number of other persons to the tune of Rs. 35 lacs dishonestly inducing them to deliver the above said money you both and which was the property of abovesaid money you both and which was the property of abovesaid persons and you both thereby committed an offence punishable under section 420 of the IPC and within my cognizance."

During the trial, the prosecution examined as many as 19 witnesses namely; Nirmal Singh (PW1), Ram Singh PW2, Rama Kanta PW3, Bakshish Singh, PW 4, Chand Singh PW5, Kulwant Kaur Pw6, Manjit Kaur PW7, Angrej Kaur PW8, Kapur Singh PW9, Joinder Singh PW10, Kartar Kaur PW11, Baldev Singh PW12, Baldev Singh s/o Pakher Singh PW13, Sham Lal PW14, Jagjit Singh PW15, Karnail Singh PW16, Karam Singh PW17, Santokh Singh PW18, and complainant Kuldeep Kumar PW19 who had lodged the FIR in question. The Investigating Officer has not been examined by the prosecution inspite of numerous opportunities granted by the trial Court. It is pertinent to mention here that only three persons namely, Karam Singh PW17, Santokh Singh PW18 and Kuldeep Singh PW19 have been examined in the court out of the persons whose names are mentioned in the aforesaid charge framed on 27.10.1984. In other words, the trial court framed no charge against the accused qua the amount deposited by PW1 to PW16. In the absence of any charge regarding the amount paid by PW 1 to 16, their statements in the court are of no evidentiary value. It is quite surprising that the charge has been framed in a cryptic manner. The conduct of prosecution is equally astonishing as to why statements of PW1 to PW16 were got recorded without any charge covering the amount deposited by these prosecution witnesses. It is cardinal principle of criminal law that charge has to be specific in nature particularly when entrustment of money which is embezzled and breach of trust is involved in the case.

Ignoring this aspect of the matter, the trial Court recorded the statements of the aforesaid 19 witnesses and thereafter prosecution closed its evidence. When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances and the evidence of the prosecution against them and made their specific defence statements individually.

The version given by Mohan Singh accused runs as under :

"We used to run shops and sell commodities to the people at less price. Commodities worth Rs. 10/11 lakh were lying in our shops. On 18.9.1982 i.e. Saturday at 4 p.m. some mischievous persons attacked our shops and looted the goods. The police arrested 11 persons vide FIR No. 190 dated 18.9.1982 and recovered goods worth Rs. 89000/. We remained in police custody from 18.9.1982, till were enlarged on bail. We did not run. Sh. Tara Singh, S.H.O. Police Station Sirhind constituted a 5 member committee sold goods lying in our godown and collected Rs. 4,11,000/. In this way, we suffered a great loss. Amount of Rs. 368380/ was distributed amongst the people by the police and a member of the committee namely Surta Singh M.C. After selling the valuable domestic articles of my house and that of Chhaju Ram Rs. 68149/ in my name and Rs. 49106 in the name of Chhaju Ram total being Rs. 1,17,255/ were deposited as per orders of the court vide challan number 843 CPV 18 dated 2351983. A telephone security is deposited in my name. I am quite innocent".

To the same effect is the statement of Chhaju Ram under Section 313 Cr.P.C. In support of their defence, they have examined DW1 Bhagwan Dass, DW2 Mewa Singh, an Assistant in the Sub treasury at Sirhind,DW3 Subhag Singh MHC Police Station Sirhind, DW4 Surinder Mohan and Mohan Singh accused himself as DW5. DW1 and DW4 have deposed that they were members of the committee constituted by the SHO Sirhind. They corroborated the fact that the shops of the accused were looted by the miscreants and goods worth more than Rs. 90,000/ were recovered from those persons which are lying with the Police Station concerned. Surta Singh, another member of the committee has since died. They have also deposed that being the members of the committee constituted by the SHO, articles removed from the shops of the accused, were sold in the market and money was distributed among the people. Money lying with the Bank in the name of the accused was also withdrawn and distributed to the people concerned. They also deposed that sum of Rs. 1,17,255/ was deposited by them in the Bank through treasury under the orders of the Court after selling the goods lying in the godowns of the accused. DW3 Subhag Singh, A/MHC Police Station Sirhind has proved that entry regarding deposit of Rs. 1,17,255/ was made by Tara Singh, SHO Sirhind in the case bearing FIR No. 211, dated 28101982. Similarly PW2 Mewa Singh, an Assistant in the Office of Sub treasury, Sirhind has proved the factum that under the orders of the Court, a sum of Rs. 1,73,255/ was deposited in the Sub treasury Bassi Pathanan vide C.D. No. 18 dated 23.5.1983. Accused Mohan Singh while appearing as DW5 has admitted that he and Chhaju Ram were running the scheme and they had promised to deliver the goods to the depositors of the value three times of the money deposited but after three months. Before expiry of the period of three months, the miscreants looted their shops and ruined them, completely incapacitating them to fulfill the promise made to the depositors of the money. In nutshell, statement by the accused Mohan Singh(DW5) was made to corroborate the statements of other defence witnesses based on record as well as statement of Chhaju Ram accused under Section 313 Cr.P.C.

After appraisal of the prosecution evidence on record, the trial court passed the impugned order of acquittal in favour of the accused holding that the essential ingredients under Section 420 of the Indian Penal Code have not been proved inasmuch as the prosecution had failed to prove that the accused had induced the witnesses to deposit the money with them and after receiving the money, they dishonestly misappropriated the amount of the depositors and that money was deposited on false representations/inducement. The trial court disbelieved the oral statements of the witnesses of having deposited the amount in the abscence of duly proved receipts. The trial court also took note of the serious lapse on the part of the prosecution, for not examining the Investigating Officer who, as per the facts of the case was a very material witness.

Against the said impugned order of the acquittal, the state has come up in appeal which is being disposed of by this judgment.

Statements of the prosecution witnesses and record of the case has been thoroghly scanned with the assistance of learned counsel for the parties. At the cost of repitition, it is made clear that the statements of PW1 to 16 have to be ignored as there is no charge against the accused person qua the amount alleged to have been deposited by them with the accused. In the absence of charge, their statements cannot be termed as incriminating piece of evidence. We are left only with the statement of PW17 Karam Singh, PW18 Santokh Singh and PW19 Kuldip Kumar, complainant. Statement of PW17 Karam Singh has also to be ignored due to material defect in the charge. A perusal of the charge sheet shows that the names of nine depositors who are said to have been cheated by the accused, are mentioned therein. However, only details of eight deposits have been given. If these amounts were deposited by the various persons respectively as mentioned in the order, then it seems that the charge does not contain the amount so deposited by Karam Singh. Be that as it may, a bare reading of the charge sheet shows non application of mind to the facts of the case at the time of framing the charge. Still PW17 has stated that he deposited a sum of Rs. 120/ with the accused vide slip Ext. PW 17/A, PW17/B and PW 17/C. This witness has specifically admitted in examination in chief itself that the accused had told him that he could get back the money but when he went to get back money, they said that the date was not due. The amount of this prosecution witness is shown to have been deposited on 10.8.1982 and three months had to expire on 9.11.82. There is no dispute that shops of the accused were looted by the miscreants on 18.9.1982. DW18 Santokh Singh has stated that he deposited Rs. 400/ vide slips Exts. PW18/1 to PW18/10 i.e. of the value of Rs. 40/ each.He has stated that representation made to him was that be shall get 21/2 times of the deposit after 21/2 months. He has also admitted that no such conditions were printed on the form issued to him. PW19 Kuldip Kumar, who lodged the FIR stated in the Court that he deposited Rs. 800/ vide slips Exts. PW 19/10 to PW19/20. He has admitted that he had not himself written the application PW19/A on the basis of which FIR Ext. PW 19/B was lodged by the police. In fact, he had just appended his signatures on the application not written in his hand. He has also admitted that about 7 receipts do not have the signatures of the accused. The witness has admitted the defence version to the effect that some persons attacked and looted the shops of the accused. The police intervened and got recovered the looted property. He also admitted that the goods recovered were deposited in the Police Station. It is also admitted by him that the goods not looted by the miscreants were taken into possession by the Police. He has further admitted that the due date for return of the goods after three months had not yet arrived before he lodged the FIR on the day, the shops of the accused were looted.

The statements of these three prosecution witnesses are not enough and reliable piece of evidence to prove the case of the prosecution against the accused. As admitted by these prosecution witnesses, the accused had floated a scheme after wide publicity by pasting posters in the city and proclamation made by beat of drum. No poster alleged to have been published or circulated has been produced on record by the prosecution. Best evidence has been withheld. Accused might have secured the services of some labourer to effect Munadi in the city. Generally, Munadi is done by known persons of the city for this purpose. No such person has been examined. In view of this ocular statements of prosecution witnesses cannot be safely relied upon as to the nature of representations having been made by the accused. If the prosecution is found failing on this material aspect of the case, essential ingredients of offence under Section 420 of the IPC are not fulfilled.

We have gone through the record of the trial Court. It reveals that the Investigating Officer had recorded the statements under Section 161 Cr.P.C. of a hundred of persons. The record allegedly maintained by the accused was also taken into possession. A perusal of the file shows that the SHO Investigating Officer, had sold the goods of the accused and deposited the money in the Sub treasury under the orders of the court. Numerous documents pertaining to FIR No. 190 dated 18.9.1982 lodged by the accused person against some miscreants are also there on the record of the case and necessary investigation of that case connected with the facts of this case was also conducted by the Investigating Officer.A perusal of the report under Section 173 Cr.P.C. also has given full details of the investigation done by the Investigating Officer and conclusions drawn by him before lodging a report before the court for initiation of proceedings. Under these circumstances, non examination of the Investigating Officer is not excusable. The accused persons have been deprived of their valuable right to effectively cross examine the said witness to shatter the prosecution cases and also bring out material on record in support of their defence.

Even if it is presumed that the accused had taken the money with a promise to deliver the goods worth 21/2 times or three times of the amount deposited, after expiry of three months, this period of three months had not expired at the time of registeration of the case. The dates shown on the receipts are not prior to 10.8.1982. The present FIR is dated 28.10.1982. It is noteworthy that this First Information Report came into existence much after the incident date 18.9.1982, when many miscreants allegedly looted the shops of the accused resulting in lodging of FIR No. 190 dated 18.9.1982. Under these circumstances, nothing can be said that the accused persons had made false representations, rather they were rendered incapacitated to fulfill the alleged promises made to the depositors.

In view of the detailed discussion of the evidence on record and inherent and incurable infirmities in the prosecution case, we have no option but to endorse the view of the trial court of according acquittal to the accused. The trial court has taken correct and just view of the whole evidence on record and the conclusions arrived at are without any legal fault. Finding no scope of interfering with the order of the trial court, the State appeal is ordered to be dismissed.