- (1.) Heard learned counsel for the informant petitioner and learned A.P.P. for the State.
(2.) THE petitioner is aggrieved by Judgment dated 27th September 2012 passed by the learned Addl. Sessions Judge -V, Dhanbad, in Cr. Appeal No. 35 of 2012, whereby the appeal filed against the Judgment of conviction and Order of sentence dated 21st December 2011 passed by Sri Manoj Chandra Jha, learned Judicial Magistrate 1st Class, Dhanbad, in G.R. No. 295 of 2008 / T.R. No. 214 of 2011 arising out of Bhagmara P.S. Case no. 28 of 2008, has been allowed by the learned Appellate Court below, setting aside the conviction and sentence of the accused -opposite parties Nos. 2 to 3. From perusal of the Judgments passed by both the Courts below, it is apparent that the accused -opposite parties had put proposal before the informant and asked him to arrange funds for erection of towers of BSNL and TATA Indcom and promised the informant and his friends good returns. It is alleged that money was collected and given to the accused persons, but the tower was not erected. When the informant and his friends, who had advanced heavy amount of money to the accused persons, demanded back the money, cheques were issued by the accused persons in their favour, which were presented in the Bank for encashment, but they bounced. With these allegations, police case was instituted on the basis of the information given by the informant, for the offences under Sections 406, 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. After investigation, the police submitted charge sheet for the said offences and charges were also framed against the accused -opposite parties for the same, and they were put to trial. It appears that in course of trial, nine witnesses were examined by the prosecution. All of them, supported the prosecution case that money was taken from the informant and the other witnesses by the accused persons, but the towers were not erected and when the money was demanded back, cheques were issued in their favour, which bounced.
(3.) FROM the Judgment of the Trial Court, it appears that no cheque was seized by the Investigating Officer nor produced by the prosecution and even the dishonour of the alleged cheques were not proved by the prosecution. As the main ingredients for the offence under Section 138 of the Negotiable Instruments Act could not be proved, the accused -opposite parties were acquitted for the said offence. On the question of entrustment of money to the accused persons, the Court below found that the prosecution had failed to prove the entrustment of money to the accused persons and accordingly, acquitted them for the offence under Section 406 of the Indian Penal Code also, but finding that ingredients of cheating was made out, the accused opposite parties were convicted for the offence under Section 420 of the Indian Penal Code and sentenced for the same.;