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Mahendra Prasad Yadav vs The State Of Bihar And Ors on 25 September, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.779 of 2016
Arising Out of PS. Case No.-56 Year-2008 Thana- BIHPUR District- Bhagalpur

Mahendra Prasad Yadav, son of Kritee Prasad Yadav, resident of village
Narayanpur, P. S. Bihpur (Bhawanipur), District Bhagalpur

… … Petitioner/s
Versus
1. The State of Bihar
2. Sant Lal Mandal, son of Late Makko Mandal
3. Sanjay Mandal, son of Sant Lal Mandal
4. Pradip Mandal, son of Late Deo Narain Mandal, all residents of village
Shahpur, P.S. Bihpur (Bhawanipur), District Bhagalpur

… … Appellants/Opposite Parties

Appearance :
For the Petitioner/s : Mr.Amrendra Kumar, Advocate
For the Respondent/s : Mr.Jitendra Kumar Singh, APP
For O.P. Nos. 2 to 4 : Mr. Shivesh Chandra Mishra, Advocate

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL ORDER

7 25-09-2019 This revision application has been filed by the

petitioner-informant for setting aside the judgment and order

dated 23.12.2015 (amended as per order dated 22.2.2016),

passed in Cr. Appeal No. 46 of 2014 by 4 th Additional District

and Sessions Judge, Naugachia, Bhagalpur, whereby and

whereunder learned District and Sessions Judge has been

pleased to acquit the accused opposite party Nos. 2 to 4, who

have been convicted by judgment dated 10.4.2014 passed by

S.D.J.M,, Naugachia in Bihpur (Bhawanipur) in Trial No. 499

of 2014, arising out of P. S. Case No. 56 of 2008, corresponding

to G.R. No. 202 and sentenced by order dated 15.4.2014 to

undergo R.I. for three years with fine of Rs.3000/- under
Patna High Court CR. REV. No.779 of 2016(7) dt.25-09-2019
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Section 420 IPC and in default of payment of fine they shall

undergo three months R.I. and also sentenced them to undergo

R.I. for three years under Section 406 IPC in additional to

compensation of Rs. 7,19,865/- which will be payable in favour

of petitioner-informant by the accused persons, O.P. Nos. 2 to 4

within three months and in default of payment they shall

undergo three months, three months and two months simple

imprisonment respectively and both the sentences were directed

to run concurrently.

Prosecution case, in short, is that the informant-

petitioner was serving in the Eastern Railway and he retired on

1.4.2005. Accused No.1 was friend of the informant and was

running Sathi Bank, accused No.2 was Manager of the Sathi

Bank and accused No.3 was the Cashier of the said Bank. These

accused persons were running the said Bank with the co-

operation of other accused persons. The informant seeing the

transaction at the rate of 3% per month in the said Bank, he

withdrew Rs.4 lac from the U.C.O. Bank, Narayanpur and

deposited the entire amount in the Sathi Bank, Sahpur. It is

further alleged that after opening of Account No. 375/05, the

informant handed over the said money in the hands of accused

Sanjay Mandal. The informant-petitioner further claimed that he
Patna High Court CR. REV. No.779 of 2016(7) dt.25-09-2019
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had deposited total amount of Rs.7,19,965/- till 6.6.2007 in the

Bank of accused persons and a Pass Book was issued in his

name. It is further case of petitioner that when he demanded the

money from the accused persons, they closed the said Bank and

started doing other employment with the help of money

deposited by the informant. Accused Nos. 1 and 2 purchased

truck and also started running brick kiln and after having this

information the son of informant started Satyagrah (Anshan) at

the house of accused No.1 and for that accused No.1 gave

assurance to pay Rs.50,000/- per month to the informant but

they did not return the said money deposited by him in Sathi

Bank of the accused persons. Ultimately, the petitioner-

informant lodged Complaint Case No. 42 of 2008 which was

registered as Bihpur (Bhawanipur) P. S. Case No. 56 of 2008

and after completion of investigation charge sheet has been

submitted under Sections 323, Section406, Section420, Section504 IPC and Section 76

of Chit Fund Act.

It appears that after submission of charge sheet

cognizance was taken and during trial charges were framed

against the opposite party Nos. 2 to 4 under Sections 323, Section406,

Section420, Section504 IPC and Section 76 of Chit Fund Act and altogether

eight witnesses have been examined on behalf of prosecution
Patna High Court CR. REV. No.779 of 2016(7) dt.25-09-2019
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and Pass Book of the informant was produced and marked as

Ext.1.

Learned trial court after conclusion of trial has

convicted the opposite party Nos. 2 to 4 and other accused

persons under Sections 420, Section406 read with Section 34 IPC,

acquitting other accused persons, and sentenced them as stated

above.

Being aggrieved by the judgment and order of learned

trial court, the accused opposite party Nos. 2 to 4 preferred

Cr.Appeal No. 46 of 2014 before learned Sessions Judge, who

by the order dated 23.12.2015 set aside the judgment and order

passed by learned trial court and acquitted opposite party Nos. 2

to 4.

Being aggrieved by the order of learned appellate

court, this revision has been preferred before this Court against

acquittal.

The ground taken by the petitioner-informant is that

learned appellate court without appreciating the evidence

available on the record and only on discussion of the evidence

of I.O. set aside the judgment and order of learned trial court

and submission of learned counsel for the petitioner is that

there is no discussion of the entire evidence in the order of
Patna High Court CR. REV. No.779 of 2016(7) dt.25-09-2019
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learned appellate court, rather after discussing the evidence of

I.O. the judgment and order of learned trial court has been set

aside considering the case being civil in nature, which is not just

and proper, as such the order of learned appellate court is not

sustainable in the eye of law.

On the other hand, learned APP and learned counsel

for the opposite party Nos. 2 to 4 have tried to defend the order

of learned appellate court but after some argument, they also

appreciate that none of the evidence of witnesses has been

considered nor they have been discussed nor narrated by

appellate court.

Heard both sides.

On perusal of the record it appears that learned

appellate court, considering the submission of appellants

(opposite party Nos. 2 to 4 here) and the evidence of I.O. has

passed the order of acquittal setting aside the judgment of

conviction and order of sentence of learned trial court. There

appears no appreciation of evidence of witnesses nor of

documentary evidence, though being appellate court it has to

critically analyze the evidence available on the record. In such

view of the matter, the impugned order cannot be sustained. At

the same time, it is made clear that this Court does not make any
Patna High Court CR. REV. No.779 of 2016(7) dt.25-09-2019
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comment on the evidence available on the record.

Accordingly, the order dated 23.12.2015 and the

amended order dated 22.2.2016 are set aside and the matter is

remitted back to learned 4th Additional District and Sessions

Judge, Naugachia, Bhagalpur for considering it afresh after

hearing both the parties and for passing fresh order in

accordance with law.

Hence, the revision application is allowed to the

extent indicated above.

Let lower court records be sent back to learned

appellate court at once.

(Vinod Kumar Sinha, J)
spal/-

U T

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