IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.1102 of 2018
Arising Out of PS. Case No.-1477 Year-2013 Thana- EAST CHAMPARAN
COMPLAINT District- East Champaran
1. Uma Shankar Mishra, S/o Late Kamod Mishra,
2. Lalit Narayan Mishra S/o Uma Shankar Mishra, Both are R/o Vill.-
Madhuban Chowk, Bajaj Patti, P.S.- Motihari Town, District- East
Champaran.
… … Petitioners
Versus
1. The State of Bihar.
2. Sujan Kumar Rai Verman S/o Late Dhrub Prasad Rai Varman, R/o 913 Hemdah Lane
Verman , Kolkata.
… … Respondents
Appearance :
For the Petitioner/s : M/S Soni Srivastava, Ratanakar Jha, Advocates
For the Respondent/s : Mr. Sri Sunil Kumar Pandey, APP
For Respondent No.2 : M/S D.K.Sinha, Sr.Advocate with Karandeep Kr.
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
CAV JUDGMENT
Date : 12 -12-2018
As both the parties have appeared and lower court records are
available, as such vide order dated 27.11.2018 it has been taken up for final disposal
at the time of admission stage itself and both the parties have been heard.
2. This revision application is directed against the judgment and order
dated 20.8.2018 passed by Sri Sanjay Kumar Singh, Additional Sessions Judge-IX,
East Champaran, Motihari in Cr.Appeal No. 28 of 2018, whereby and whereunder he
has dismissed the appeal filed by the petitioners and affirmed the judgment and order
dated 17.4.2018 passed by the Chief Judicial Magistrate, East Champaran, Motihari
in connection with Complaint Case No. 1477 of 2013, corresponding to T.R.No. 986
of 2016, by which both the petitioners have been held guilty for the offences
punishable under Sections 406/120B of the Indian Penal Code and awarded simple
imprisonment for one year and further held guilty under Section 420 IPC and
awarded simple imprisonment for three and a half years, including a fine of
Rs.10,000/- each and also convicted both the petitioners under Sections 467, 471 and
120B IPC for five years simple imprisonment and a fine of Rs.10,000/- each and
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under Sections 468, 471/120B IPC, S.I. for 3.5 years and fine of Rs.10,000/- each
and all the sentences were directed to run concurrently and the period undergone
during trial and investigation would be set off from the period of quantum of
punishment under the proviso of Section 428 Cr.P.C.
3. Prosecution case, in brief, is that the complainant filed a complaint
petition on the basis of registered power of attorney dated 24.5.2013 (Ext.3/B)
executed by Sri Chitranjan Mukharjee and Swastika Banerjee in favour of the
complainant and on that basis the present case is being filed by complainant. Further
case is that both the Chitranjan Mukharjee and Swastika Banerjee along with
Manjari Mukherjee (since died) were residents of Calcutta (West Bengal) and they
had jointly executed power of attorney on 26.9.2011 (Ext.3) in favour of petitioner
No.1 Uma Shankar Mishra to look after, to manage and to sell the properties of
landlords, i.e., Chitranjan Mukherjee, Swastika Banerjee and Manjari Mukherjee.
Further case is that one of the landlords Manjari Mukherjee has died on 6.12.2018 at
Calcutta and therefore remaining landlords Chitranjan Mukherjee and Swastika
Banerjee executed another registered power of attorney on 21.12.2012 (Ext. 3/A) by
rectifying the previous power of attorney dated 29.6.2011 (Ext.3) in favour of
petitioner No.1 Uma Shankar Mishra whereby the valuable land situated in the
Madhubani Chhawan Chowk, Motihari was handed over to look after, to control and
to right to sell to intending purchaser or purchasers and in paragraph-2 to power of
attorney dated 29.6.2011 and 21.12.2012 it has been specifically described that to
receive from the intending purchaser any earnest amount or only consideration
money by cheque or Bank Draft in their names and deposit the same in their Bank
Account and to give receipt for the same which will protect the purchaser or
purchasers.
4. Further case of the complainant is that thereafter petitioner Uma
Shankar Mishra dishonestly and fraudulently with a view to cheat landlords sold land
of Khata No. 04, Khesra No. 2780, 2781, 2782, area 1 katha to his son Lalit Narayan
Mishra, petitioner No.2 through registered sale deed No. 18513 dated 17.10.2012 and
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petitioner Uma Shankar Mishra again sold land in Khata No.4, Plot No. 2784, area
2.90 decimal, including the house to his son Lalit Narayan Mishra by registered sale
deed No. 22365 dated 28.12.2012 (Ext.5/C) in which Saroj Kumar and Ravi Shankar
Raj were the witnesses and Ras Narayan Jha was the deed writer (since died). It is
also alleged that all the accused persons conspired to each other and created forged
and fabricated sale deed without paying consideration money to the landlord. It is
also the case of the complainant that total consideration money dishonestly utilised
by petitioner Uma Shankar Mishra. It is also the case of the complainant that total
consideration money of the aforesaid two sale deeds Rs.30,55,000/- was grabbed by
both the petitioners-appellants with the help of other accused persons and the market
value of the aforesaid land was Rs.70,00,000/- at that time, when the sale deed was
executed but in the sale deed only Rs.30,55,000/- was shown with a view to grab the
stamp duty and court fee of Bihar Government. It is also the case of the complainant
opposite party No.2 that as soon as the landlords came to know that they have been
cheated, they sent the complainant to Motihari to enquire about the matter and when
he arrived at Motihari registry office he learnt that petitioners, including three others
have cheated the landlords worth Rs.70,00,000/-. It is also the case of the
complainant that thereafter the landlords revoked power of attorney on 4.4.2013
(Ext.4). It is also the case that both the petitioners did not pay single farthing towards
consideration money of the above two sale deeds and then the landlords executed a
general power of attorney on 24.5.2013 (Ext.3/B) in favour of the complainant
opposite party No.2 and thus opposite party No.2 has filed the complaint case.
5. On query summons were issued against the petitioners, charges were
framed against five accused persons, including the petitioners under Sections 419,
420, 406, 467, 468, 471 and 120B/34 IPC.
6. During course of trial one accused Ras Narayan Jha died and
proceeding against him was dropped.
7. During trial two witnesses have been examined on behalf of
complainant opposite party No.2, they are CW 1 Kalyaneshwar Gautam and CW 2
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Sujan Kumar Roy Burman, the complainant. The following documents were
produced and marked Ext.1- certified copy of judgment dated 9.9.2016 passed by
Sub-Judge-I, Motihari in T.S.No. 607 of 2013 (Chittranjan Mukherjee and others,
plaintiff vs. Lalit Narayan Mishra and others, defendants), Ext.2- certified copy of
decree passed by Sub-Judge-I, Motihari in T.S.No. 607 of 2013 whereby sale deeds
dated 17.10.2012 and 28.12.2012 were declared null and void ab-initio, Ext.3-
certified copy of registered power of attorney dated 26.9.2011 executed by land
owner Chittranjan Mukherjee and his two sisters in favour of Uma Shankar Mishra,
petitioner No.1, Ext.3/A- certified copy of registered power of attorney dated
21.12.2012 executed by Chittranjan Mukherjee and his sister Swastika Banerjee in
favour of Uma Shankar Mishra, petitioner No.1, Ext.3/B- certified copy of registered
power of attorney dated 24.5.2013 executed by Chittranjan Mukherjee and Swastika
Banerjee (land owner) in favoour of Sujan Kumar Roy Burman, the complainant,
Ext.4- certified copy of revocation of general power of attorney dated 4.4.2013
executed by Chittranjan Mukherjee and his sister by which Ext.3/A has been
cancelled/revoked, Ext.5- certified copy of registered sale deed dated 12.1.1938
executed by Babu Kanhaiya Lal in favour of Sidheshwar Mukherjee in respect of 1
Bigha 2 Katha 16 Dhurs of land along with house. The vendee of this deed died
leaving behind his son, namely, Chittranjan Mukherjee and two daughters, namely,
Manjari Mukherjee and Swastika Banerjee, Ext.5/A- certified copy of registered sale
deed dated 6.12.2012 executed by petitioner No.1 Uma Shankar Mishra in favour of
Rakesh Ranjan which was registered at Belsand, District Sitamarhi in capacity of
power of attorney, Ext.5/B- certified copy of registered sale deed No. 18513 dated
17.10.2012 executed by petitiioner No.1 Uma Shankar Mishra in favour of his son
Lalit Narayan Mishra, petitioner No.2, which has been declared null and void ab-
initio by Sub-Judge-I, Motihari in T.S.No. 607 of 2013, Ext.5/C- certified copy of
registered sale deed No. 22365 dated 28.12.2012 executed by petitioner No.2 which
has been declared null and void ab-initio by Sub-Judge-I, Motihari in T.S.No. 607 of
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2013 and Ext.6 is certified copy of deposition of Chittranjan Mukherjee adduced in
T.S.No. 607 of 2013.
8. On the other hand, no oral or documentary evidence has been
adduced on behalf the petitioners.
9. Learned Judicial Magistrate on conclusion of trial has convicted the
petitioners under Sections 406, 420, 467, 468, 471 and 120B IPC and sentenced them
as stated above, however acquitted the other remaining accused persons from the
charges levelled against them.
10. Petitioners have preferred an appeal against the judgment and order
passed by trial court and appellate court vide judgment dated 20.8.2018 dismissed
the Cr.Appeal No. 28 of 2018 and confirmed the judgment of conviction and order of
sentence against the petitioners.
11. Being aggrieved by the same, the present revision application has
been preferred by the petitioners.
12. Learned counsel for the petitioners has submitted that even on
consideration of evidence available on record, no offences under Sections 406, 420,
467, 468, 471 and 120B IPC are made out against the petitioners as it is admitted fact
that petitioners have sold the land on the basis of power of attorney executed by the
original landholder and in terms of condition No.1 petitioners were entitled to sell
and purchase of the land of the original landholder, as such it cannot be said that any
forgery has been committed. Hence, the conviction of the petitioners under Sections
467, 468 and 471 IPC is not sustainable in the eye of law. It has further been
submitted that even the offence under Section 420 IPC is not made out as there was
inducement on behalf of petitioners to alienate the property of landholder and there
was also no intention from the beginning to sell the property of the landholder and
as such no offence is made out under Section 420 IPC, at best it is the violation of the
terms and conditions of the power of attorney executed in favoour of petitioner No.1
and hence criminal intention was lacking.
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13. Opposite party No.2 has already appeared and learned counsel for
opposite party No.2 has submitted that there is no illegality and impropriety in the
impugned judgment passed by learned appellate court as well as the original court.
Moreover, the documents made available by opposite party No.2 disclosed that in
Title Suit No. 607 of 2013, sale deed dated 17.10.2012 executed by petitioner No.1
in favour of his son, petitioner No.2 (Ext.5/B) and sale deed dated 28.12.2012
executed by petitioner No.2 have already been declared null and void ab-initio and
Exts. 3 and 3/A are the power of attorney which have been executed in favour of
petitioner No.1 by Chittranjan Mukherjee, Swastika Banerjee and Manjari
Mukherjee and later on, on the death of Manjari Mukherjee another power of
attorney dated 21.12.2012 has been executed (Ext. 3 3/A). On perusal of the same
it clearly appears that sale deed has been executed by petitioner No.1 in violation of
the condition assigned in the power of attorney and, that too, to his own son,
petitioner No.2, as such the aforesaid sale deed was executed in order to get wrongful
gain in favour of petitioner No.1 and wrongful loss to the original landholder and
there is no evidence available on record to show that a single farthing has been paid
to the landlord Chittranjan Mukherjee and Swastika Banerjee, that clearly makes out
a case of cheating as well as criminal breach of trust. However, learned counsel for
opposite party No.2 also cannot bring out any fact to show that the case comes under
the purview of Sections 467, 468, 471 and 120B IPC.
14. Having heard both sides and from perusal of the record it appears
that the parties were heard. Argument of the petitioners has been confined that the
evidence available on record does not make out a case under Sections 406, 420, 467,
468, 471 and 120B IPC. In the background of submission of the parties, on
consideration of the evidence it appears that CW 2, who is the complainant, and a
power of attorney was executed by original landlord Chittranjan Mukherjee and
Swastika Banerjee vide power of attorney dated 24.5.2013 (Ext.3/B) and he has
supported the complaint case and his evidence shows that two sale deeds dated
17.10.2012 and 28.12.2012 (Exts. 5/B and 5/C) have been executed by petitioner
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No.1 in favour of his son, petitioner No.2 and no consideration money has been paid
and further the same has been done in complete violation of terms and conditions
mentioned in the power of attorney executed in favour of petitioner No.1 and in spite
of his cross examination it appears that nothing has come to disbelieve the complaint
case. CW 1 has also supported the case of the complainant. No doubt, in this case
original landholders Chittranjan Mukherjee and Swastika Banerjee have not been
examined but they have executed registered power of attorney in favour of
complainant opposite party No.2, who has deposed in this case as CW 2.
15. It further appears on perusal of the registered power of attorney
dated 26.9.2011 (Ext.3) executed by Chittranjan Mukherjee, Swastika Banerjee and
Manjari Mukherjee in favour of petitioner No.1 on the terms and conditions Nos. 1, 2
and 3, which are as follows :
“1. To negotiate on terms for and to agree to and enter into and
conclude any Agreement or sell of our properties at such price which
our said Attorney in his absolute discretion thinks proper.
2. To receive from the intending Purchasers any earnest amount or full
consideration money either by cheque or Demand Draft in our names
and deposit the same in our Bank account and to give receipt for the
same which will protect the Purchaser or Purchasers.
3. Upon such receipt as aforesaid in our names and as our act and deed,
to sign, execute and deliver any Conveyance or Conveyances of the said
property in favour of the said Purchaser or Purchasers.”
So as per terms and conditions of power of attorney though petitioner
No.1 is entitled to receive from intending purchaser or purchasers either an earnest
money or full consideration money but that has to be in the form of cheque or Bank
Draft in the name of original landholders, Chittranjan Mukherjee, Swastika Banerjee
and Manjari Mukherjee and further they have to deposit the same in their Bank
accoount and give receipt for the same for protection of purchaser or purchasers and
further upon such receipt as aforesaid in their names and as their act and deed, to
sign, execute and deliver any conveyance or conveyances of the said property in
favour of the purchaser or purchasers. Ext.3 and Ext.3/A both disclosed the same. It
further appears that sale deed was executed by petitioner No.1 in favour of petitioner
No.2 by registered sale deed dated 17.10.2012 (Ext.5/B) and registered sale deed
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dated 28.12.2012 (Ext.5/C). As per complaint case and evidence no information was
given to the original land owners nor any consideration money was deposited in their
Bank account nor they have been informed about the same. It further appears from
perusal of the record that sale deeds, Exts. 5/B 5/C, were challenged in Title Suit
No. 607 of 2013 and the same were declared null and void ab-initio by Sub-Judge-1.
Motihari. However, record shows that the same is pending in First Appeal and as
such the matter is sub-judiced. However, what remains on the basis of the documents
available on record that two sale deeds have been executed, one on the basis of first
power of attorney dated 26.9.2011 and on the basis of power of attorney dated
21.12.2012, another sale deed dated 28.12.2012 was executed. Petitioners have not
denied the execution of the aforesaid sale deeds and the aforesaid sale deeds on
contest have been declared null and void and ab-initio and there is case of
complainant that no consideration money has been given to the original land owners
and earnest money or consideration money had to be deposited by way of cheque or
Bank Draft in the name of original land owners but no chit of paper has been
produced as to whether the amount was deposited in cheque or Bank Draft in the
Bank account of original land holders or after that petitioner No.1 executed the sale
deeds. It appears that second sale deed has been executed just after execution of
second power of attorney. No doubt, submission has been made on behalf of
petitioners that in cross examination of CW No.2 disclosed that money has been paid
to the landholders, However, paragraph-14 of the cross examination of CW 2 clearly
disclosed that tehu fcØh dk vuwfpr izfrQy HwLokeh dks ugha fn;k x;k ftldk eSus ;g eqdnek
fd;k gS HwLokeh ds [kkrk fooj.kh dks psd fn;k gS 29-11-2012 dks LokLrhdk cuthZ ds [kkrk esa 3
yk[k :i;k yfyr ukjk;.k feJk }kjk gLrkUrfjr fd;k x;k gS ftldh tkudkjh gS 24-05-2011 dks 7
yk[k] fn0 30-06-2011 dks 5 Ykk[k] 21-01-2012 dks 350000@ :0 fn0 20-11-2012 dks 3 yk[k] 27-11-
12 dks rhu yk[k 17-12-2012 dks 90500@ :0 dqy 305000@ HkwLokeh dks yfyr ukjk;.k feJk }kjk
fn;k x;k ftldh tkudkjh eqs gSA.but CW 2 has not been cross examined on the point that
aforesaid money has been paid in lieu of sale deed executed by petitioner No.1 in
favour of petitioner No.2. Even no suggestion has been given to this witness that
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consideration money has been paid by petitioner No.1. On the other hand, as per
condition of the power of attorney (Ext. 3 3/A), agreement amount has to be paid
in cheque or Bank Draft to be deposited in the Bank account of original land holders
and also receipt has to be filed before executing sale deed.
16. Considering the evidence as discussed above, the following facts
appear to be established : (i) a registered power of attorney has been executed by
original land owners, namely, Chittranjan Mukherjee, Swastika Banerjee and Manjari
Mukherjee in favour of petitioner No.1 for the lands mentioned in the Schedule of
the registered power of attorney, (ii) the power of attorney provides that petitioner
No.1 to negotiate on terms for and to agree to and enter into and conclude any
Agreement or sell of their properties and to receive from the intending purchasers
any earnest amount or full consideration money either by cheque or Demand Draft in
their names and deposit the same in their Bank account and to give receipt for the
same and upon such receipt in their names and as their act and deed, to sign, execute
and deliver any Conveyance or Conveyances of the said property in favour of the
said Purchaser or Purchasers, (iii) after death of Manjari Mukherjee earlier registered
power of attorney dated 29.6.2011(Ext.3) was rectified by registered power of
attorney on 21.12.2012 (Ext.3/A) with the above conditions in favour of petitioner
No.1, (iv) petitioner No.1 sold part of land in favour of his son, petitioner No.2 by
executing sale deed (Ext.5/B), (v) after seven days of the execution of second
registered power of attorney another sale deed was executed on 28.12.2012 (Ext.5/C)
in favour of petitioner No.2 by petitioner No.1, (vi) though in the above sale deed it
is said that consideration money has been paid but there is no evidence to show that
consideration money has been paid by cheque or Bank Draft in the bank account of
the land owners nor there is evidence that cash has been paid by petitioner No.1, (vii)
the evidence disclosed petitioner No.1 in collusion with his son executed sale deeds
in favoour of his son without payment of consideration money and thus converted
the property of the land owners entrusted to him for his own use.
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17. In this case both the petitioners have been convicted under Sections
406/120B, 420, 467, 468, 471/120B IPC and sentenced accordingly.
18. So far Section 406 IPC is concerned, that provides for punishment
for criminal breach of trust and criminal breach of trust has been defined in Section
405 IPC which is as follows :
“S. 405. Whoever, being in any manner entrusted with property,
or with any dominion over property, dishonestly
misappropriates or converts to his own use that property, or
dishonestly uses or disposes of that property in violation of any
direction of law prescribing the mode in which such trust is to
be discharged, or of any legal contract, express or implied,
which he has mde touching the discharge of such trust, or
wilfully suffers any other person so to do, commits “criminal
breach of trust”.”
Illustration (a) A, being executor to the will of a deceased person, dishonestly
disobeys the law which directs him to divide the effects according to the will, and
appropriates them to his own use.
The aforesaid provision clearly shows that in order to constitute offence
of criminal breach of trust it must be established that the accused was entrusted with
the property or power over the property to anyone and that he dishonestly
misappropriated it or converted it to his own use.
19. In the present case also, the evidence as discussed above clearly
makes out a case that property of land owners was entrusted to petitioner No.1 by
registered power of attorney (Exts. 3 3/A) and he dishonestly transferred the same
in the name of his son petitioner No.2 (Exts. 5/B 5/C) and thus converted the same
for his own use. In such view of the matter, it appears that petitioner Nos. 1 and 2
have rightly been convicted under Sections 406/120B IPC.
20. Both the petitioners have also been convicted under Section 420
IPC, i.e., for cheating and thereby dishonestly inducing the person deceived to
deliver any property to any person. Section 415 IPC provides for by deceiving any
person, fraudulently or dishonestly induces the person so deceived to deliver any
property to any person, or to consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do anything which he
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would not do or omit if he were not so deceived, and which act or omission causes or
is likely to cause damage or harm to that person in body, mind reputation or property,
is said to ‘Cheat’.
21. In the present case, the property was entrusted to petitioner No.1 by
executing registered power of attorney (Ext.3 3/A) and by executing two sale
deeds in favour of petitioner No.2 the petitioner No.1 deceives real owners of the
land and thereby induces them for the purpose of wrongful gain for himself and
wrongful loss to the owners and as such this amounts to cheating. Thus, it appears
that prosecution has been able to establish the offence under Section 420 IPC against
petitioner No.1. However, in the facts and circumstances, the petitioner No.2 cannot
be made responsible for the aforesaid cheating and cannot be made liable for the
offence under Section 420 IPC.
22. Both the petitioners have also been convicted under Section 467
IPC, which provides for forgery of document which purports to be a valuable
security or a will, etc. Section 468 IPC provides for committing forgery, intending
that the document or electronic record forged shall be used for the purpose of
cheating. Section 471 IPC provides for fraudulently or dishonestly using as geuine
any document or electronic record. Section 463 IPC provides for making any false
document or false record with intent to cause damage or injury to the public or to any
person or to support any claim or title, or to cause any person to part with property,
or to enter into any express or implied contract, or with intent to commit fraud or that
fraud may be committed, commits forgery. But in the present case there is no
evidence available on record that any fraud document either in part was prepared by
the petitioners in order to commit fraud with the land owners, rather two sale deeds
have been executed (Ext.5/B 5/C) as per terms and conditions of registered power
of attorney (Ext.3 3/A) and petitioner No.1 is entitled to execute sale deed on
behalf of original land owners, only thing is that he has violated the terms and
conditions of the power of attorney. As such, I find that the prosecution has not been
able to establish the offences under Sections 467, 468, 471/120B IPC against the
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petitioners. Learned trial court though discussed the evidence in detail but has not
considered the above aspects of the matter while convicting the petitioners under the
above sections.
23. On the basis of discussions made above, so far conviction of the
petitioners under Section 406/120B IPC is concerned, that appears to be just and
proper. Similarly, conviction of petitioner No.1 under Section 420 IPC is concerned,
the same also appears to be just and proper. However, conviction of petitioner No.2
under Section 420 IPC and both petitioners under Sections 467, 468, 471 and 120B
does not appear to be just and proper.
24. As such the conviction and sentence of petitioner No.2 under
Section 420 IPC and conviction and sentence of both the petitioners under Sections
467, 468, 471/120B IPC are set aside. However, conviction of both petitioners under
Section 406/120B and conviction of petitioner No.1 under Section 420 IPC are
affirmed.
25. Petitioners were sentenced to undergo SI for one year under Section
406/120B and petitioner No.1 was awarded SI for five years and a fine of
Rs.10,000/-.
26. Learned counsel for the petitioners has submitted that at the time of
judgment passed by learned trial court petitioner No.1 was aged about 71 years, i.e.,
on 17.4.2018 and petitioner No.2 was aged about 34 years and apart from them
petitioners have remained in custody for some time, as such, a lenient view may be
taken while considering the sentence.
27. Considering the above facts, so far sentence of both the petitioners
under Section 406/120B IPC is concerned, the same is affirmed. However, so far
conviction of petitioner No.1 under Section 420 IPC is concerned, in the facts and
circumstances of the case and considering the age of petitioner No.1, the same is
reduced from the S.I. for five years to S.I. for three and half years and fine of
Rs.10,000/- is affirmed. However, the period undergone during trial and investigation
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of the case will be set off under proviso of Section 428 of Code of Criminal
Procedure.
28. In the result, this revision application is partly allowed with above
modification in conviction and sentence.
29. Let L.C.R. of both appellate and original court be returned.
(Vinod Kumar Sinha, J)
spal/-
AFR/NAFR
CAV DATE 27.11.2018
Uploading Date 13.12.2018
Transmission Date 13.12.2018