- (1.) THE present petition has been directed against judgment dated 23.03.2013, passed by the Additional Sessions Judge, Bhiwani, whereby the appeal preferred by convicts Sushil Kumar and Hari Ram Sharma against judgment of conviction and order of sentence dated 16.05.2011 and 18.05.2011, respectively, passed by the Judicial Magistrate Ist Class, Bhiwani in regard to conviction and sentence of the appellants (respondents No. 2 and 3 herein) for offence punishable under Sections 406, 420 and 120 -B of the Indian Penal Code (in short, 'IPC') was allowed and their conviction and sentence was set aside.
(2.) COUNSEL for the petitioner would contend that the learned Court in appeal has passed the impugned judgment, without scrutinising the evidence with care and as a result, fell into a grave error in reversing the well founded findings recorded by the learned trial Court. It is argued with vehemence that respondents No. 2 and 3 are guilty of committing offence under Sections 406 and 420 IPC as they received various deposits from different persons, who were persuaded by the petitioner to deposit their money in the business, being carried out by the respondents, who had agreed to refund the amount along with interest thereon. It is further argued that due to criminal conduct of the private respondents, the petitioner had to make payment of the maturity amount to the investors to the tune of Rs.4,44,000/ - and the respondents still owe money to various depositors, who deposited the amount with Juno Credit and Investment Private Limited, having its Head Office at Ghaziabad and a branch at Bhiwani.
(3.) I have heard counsel for the petitioner and gone through the case file. It is pertinent to mention that the private respondents were convicted and sentenced for offence punishable under Sections 406 and 420 IPC, which are mutually exclusive. The learned trial Court committed a grave error in convicting and sentencing the respondents for offence of criminal breach of trust as well as offence of cheating, which have entirely different ingredients to constitute the offence. The Court in appeal in para 19 of the judgment has held that the essential ingredients of offence under Sections 420 and 406 IPC are not proved by the prosecution as there was no inducement made by the accused to the complainant and other witnesses examined by the prosecution. It is proved that after retirement from the Company, dispute arose between the complainant and the accused being Directors, it is purely a civil liability and no criminal liability is established. Counsel for the petitioner has failed to convince this Court that the judgment passed by the Court in appeal calls for interference, in exercise of limited revisional jurisdiction keeping in view the provisions of Sections 401 of the Code. Section 401(3) of the Code creates a complete bar that the High Court cannot convert a finding of acquittal into one of conviction in exercise of the powers of revison.;