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Uma Shankar Mishra & Anr vs State Of Bihar & Anr on 12 December, 2018

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
Patna High Court CR. REV. No.1102 of 2018 dt.12-12-2018
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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 [email protected] :0 fn0 20-11-2012 dks 3 yk[k] 27-11-

12 dks rhu yk[k 17-12-2012 dks [email protected] :0 dqy [email protected] 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
Patna High Court CR. REV. No.1102 of 2018 dt.12-12-2018
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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
Patna High Court CR. REV. No.1102 of 2018 dt.12-12-2018
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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

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