Ipc 420, and misuse of company dd's
Sir, i am A1 and recently i got a judgement for three years and A2 to A4 got 1 yr and went to prison for one day and i came out by CT Bail. i made a mistake and realized, Total case detail given below, if it is possible i would like compromise with the complainer, please guide me what i've to do with jail life
1.) The case arises out of Cr No. X of 2006 of PS ,XXX Registered against A1 to A4 for offences under sections 408 and 420 IPC pursuant to report dated XX.XX.XXXX (Ex.P1) lodged by XXXXXXXXXX, Asst Manager( Liasioning) XXX Ltd,
2.) A1 is the real son of A2 and A3. A2 and A3 are Husband and Wife respectively, A4 is the brother of A1.
3.) Ms V. XXXX (P.W.2) is the Managing Partner of M/s XXXXX Inc., which is an outsourcing agency recruiting staff for the purpose of deputation to various organizations, from 2003 to 2005 A1 was deputed by P.W.2 to work in XXXX Ltd, in order to provide coordination services with their bankers. His nature of duty was to identify and prepare the list of vendors of XXX ltd, who were due to pay amounts, finalize the amount, prepare requisition letter addressed to the banker, nakedly, XXXX Bank, and obtain signatures of authorized persons to take demand drafts, in the process of A1 gained confidence of the authorized signatories of the company. Believing the words of A1 and reposing confidence on him authorized signatories of the said company alleged to have subscribed their signatures on requisitions and taking advantage of the same A1 alleged to have taken 4 DD’s for 49,000/-, 30,000/-, 5,95,000/-, 6,25,000/- in the names of A2, A3, A4 respectively and alleged to have misappropriated the said amount of Rs. 12,99,000/-. A1 alleged to have purchased plot in the name of A2, with the said amount, when the company officials approached A1 and his family members they paid Rs.7,69,000/-, and sought time to pay remaining amount of Rs. 5,30,000/- within one week but ultimately they refused to pay which compelled P.W.1 to lodge Ex.P.1 report in police station on the basis of which the present case came to be registered and investigated into.
4.) Cognizance was taken by one of my learned predecessors for offences under sections 408 and 420 IPC
5.) After furnishing copies of relevant documents as required under section 207, A1 to A4 were examined under section 240 Cr.PC on hearing both sides charges under sections 406 and 420 IPC against A1 and charges under sections 406 read with section 109 IPC and 420 read with section 109 IPC against A2 to A4 were framed read over and explained to them. They pleaded not guilty and claimed to be tried.
6.) PWs . 1 to 6 were examined and Exs P1 to P4 were marked on behalf of prosecution, the details of which are mentioned at the appendix of evidence.
7.) A1 to A4 were examined under sec 313 Cr.P.C. Incriminating material available in the evidence of PWs 1 to 6 was put forth to A1 to A4. Their plea was a total denial
8.) Heard Smt. G XXXXX Learned Senior Asst Public Prosecutor for prosecution and Sri M XXXX Learned counsel for A1 to A4
9.) The point that arises for determination is:
Whether prosecution has brought home guilt of A1 of offences under section 406 and 420 and guilt of A2 to A4 for offences under section 406 read with section 109 and 420 read with section 109 beyond reasonable doubt?
10.) POINT: Evidence of PWs.1 and 2 establishes that A1 was appointed initially in the firm of P.W.2 by name XXXXX inc. which is an out sourcing agency and that A1 was deputed to work in XXXXXX ltd, from 2003 to 2005. While P.W.1 is the Asst Manager in XXXX ltd. P.W.2 is the Proprietor of M/s XXXX inc. it is true that no documentary evidence is filed by prosecution to show that A1 was appointed by the firm of P.W.2 and that he was deputed to work in the company of P.W.1. Though there was opportunity for P.W.6 he had not filed any documentary evidence to that effect. Though P.W.1 Deposed that he had handed over agreement entered into between company of P.W.1 and firm of P.W.2 the same was denied by P.W.6. A fact can be proved not only by documentary evidence but also by oral evidence which is admissible under section 59 ot the evidence Act. Court can not reject the oral testimony of PWs.1 and 2. Because they have no enmity with A1 to A4. There will be no reason for PWs 1 and 2 to depose false evidence against A1 to A4.
11.) The main case of prosecution is that A1 having gained confidence of authorized signatories in XXXX Ltd, Prepared requisition letter addressed to XXXX bank, Where the account of the said company is existing and obtained the signatures of authorized signatories and drawn four demand drafts for different amounts in the name of A2 to A4 totaling rs 12,99,000/- during the period from 2005-2005 and got encased the said DD through the bank accounts of A2 to A4, absconded from duty from 2005 and misappropriated the said amount. PW1 has reiterated the contents of Ex. P.1. During initial audit criminal acts of A1 came to light pursuant to which EX.P.1 was lodged. Evidence of PW1 also discloses that when A1 had absconded from duty staff of PW1 were deputed to the house of A1 at which time A2’ relatives paid 5,00,000/- in case. In Ex.P1 it is also mentioned that 2,69,000/- was paid by way of DD drawn on XXXXX Bank, Since the balance amount of 5,30,000/- was not paid by accused despite the promise made by them Ex.P1 had to be lodged in police station.
12.) As rightly contended by learned counsel for accused prosecution has not filed internal audit report, DDs to the tune of 12,99,000/-and requisitions alleged to have been prepared by A1. Though PW1 deposed that he had handed over to police DD requisition Slips for 12,99,000/-, PW 6 denied the same. In the absence of these documents prosecution is relying on evidence of PW4 and EX P.4. It is true that EX P4. Was not confronted to PW4. At the time when she was initially examined. When the court had reopened the case Suo-motu for reframing the charges prosecution has filed CRL MP No XXXX of 2014 seeking recall of PW4 Which was allowed on hearing both sides. Accordingly, PW4 was further examined and Ex.P4 came to be marked.
13.) Ex P4 is a crucial document is this case being relied upon by prosecution . Merely because prosecution has not confronted EXP4 initially to PW4 for the mistake committed by prosecuting agency court can not ignore ExP.4, Particularly as it was filed by PW6 along with charge sheet PW4 is the author of ExP4. PW4 has issued ExP4 pursuant to letter dated [deleted] given by PW6. Merely because there is no date on ExP4 court can not reject the same , particularly as contents of Ex P4 stood legally proved by prosecution by examining PW4.
14.) XXXXXX and XXXXXX are the authorized signatories , whose signatures were stated to have been taken by A1. They were not examined since their whereabouts were not known. Their evidence was closed on filing report by prosecution. PW3 is one of the panch witnesses to confessional statement of A1 dated 16.05.2007. He turned hostile without supporting the case of prosecution. PW5 deposed about the attest of A1 though authorized signatories were not examined and PW3 turned hostile and though the evidence of PW5 is relevant only to the extent of arrest of A1 evidence of PWs 1, 2 and 4 coupled with EX P4 is sufficient to establish guilt of A1 to A4.
15.) A1 is convicted under section 248(2) Cr.P.C for offence under section 406 IPC and sentenced to undergo RIGOROUS IMPRISONMENT for a period of Three years and pay fine Rs 5,000/-, and in default of payment of fine he shall suffer SIMPLE IMPRISONMENT OF SIX MONTHS. A1 is also convicted under section 248(2) Cr. P.C for offence under section 420 IPC and sentenced to undergo RIGOROUS IMPRISONMENT for a period of three years and pay fine 5000/- and default of payment of fine he shall suffer SIMPLE IMPRISONMENT for SIX MONTHS. A2 to A4 are convicted under section 248(2) Cr.PC for offence under section 406 read with section 109 IPC and sentenced to undergo RIGOROUS IMPRISONMENT for a period of ONE YEAR and pay fine 5000/- each and default of payment of fine each of them shall suffer SIMPLE IMPRISONMENT FOR SIX MONTHS. A2 to A4 are also convicted under section 248(2) Cr.PC for offence under section 420 read with section 109 IPC and sentenced to under RIGOROUS IMPRISONMENT for period ONE YEAR and pay fine of 5000/-each and in default of payment of fine each of them shall suffer SIMPLE IMPRISONMENT for SIXMONTHS. Both the substantive sentences of imprisonment imposed against A1 to A4 shall run concurrently. A1 is entired for set of under section 428 Cr.PC for the period for 17.05.2007 to 01.06.2007 bail bonds of A1 to A4 shall stand cancelled forthwith.
PW1. Xxxxxxxx ASST MANAGER (LIASIONING) XXXXX LTD (DEFACTO COMPLAINANT)
PW2. XXXXXXX MANAGING PARTNER OF XXXXX INC
PW3. XXXXXXX( PANCH WITNESS FOR CONFESSIONAL STATEMENT OF A1)
PW4. XXXXXXX OFFICER, CLIENT SERVICES GROUP, XXXXXX BANK
PW5. XXXXXXX PS (APPREHENDED A1)
PW6. XXXXXXX SI OF POLICE ( INVESTIGATION OFFICER)
Ex.P1: REPORT OF PW1 DT. 09.01.2006.
Ex.P2: SIGNATURE OF PW3 ON CONFESSIONAL STATEMENT OF A1 DT 16.05.2007
Ex.P3: ORIGINAL FIR DT . 09.012006
Ex.P4: LETTER DT.NIL ISSUED BY PW4 REGARDING CONFIRMATION OF ENCASHMENT OF DEMAND DRAFTS.