RAJAPPAN ASSARI Vs. STATE OF KERALA

JUDGEMENT

(1.) This revision is by accused No.1, who was convicted for the offence under Sec. 406 IPC by both the trial Magistrate and the first appellate court.

(2.) The prosecution case is that the accused No.1 along with other accused were conducting a partnership business in the name of M/s Rajappan Achary and had accepted fixed deposit from different persons offering high interest @ 24% and after getting the deposit, misappropriated the same for their own use. PW3 is one among the victim, who set the criminal law in motion on the allegation of misappropriation of a deposit of Rs.1,54,345.00. It is the pensionary benefit received by PW3 on his retirement. Ext.P4 and P5 are the passbook and Ext.P6 and P7 are the photocopies of the cheques, whereby the abovesaid amount was deposited. He was paid an amount of Rs.3,300.00 towards interest. The principal amount and the interest accrued thereafter was not paid as agreed. Both the courts below found that the accused No.1/appellant is guilty of offence punishable under Sec. 406 IPC and convicted thereunder and sentenced to undergo rigorous imprisonment for a period of three years by the trial Magistrate. But it was modified by the first appellate court by imposing a lesser sentence of fine of Rs.1,75,000.00, in default, to undergo simple imprisonment for six months. Both the trial court and the first appellate court acquitted accused No.1 of the offences punishable under Sec. 420 and 120B IPC. It is against the concurrent finding of conviction of accused No.1 for the offence punishable under Sec. 406 IPC and the sentence imposed, he came up in revision.

(3.) The material question raised is pertaining to the criminal liability that can be extended under Sec. 406 IPC when there is neither express nor implied trust and whether both the courts below are justified in convicting the accused for the said offence without satisfying the existence of either express or implied trust.