SANCHA BAHADUR SUBBA Vs. RAMESH SHARMA

JUDGEMENT

(1.) Aggrieved by the acquittal of the Respondent No.1 herein, in Criminal Appeal No.01 of 2018, Ramesh Sharma v. State of Sikkim under Sec. 406 and Sec. 420 of the Indian Penal Code, 1860 (for short, the "IPC"), by the Learned Sessions Judge, Special Division-II, Sikkim at Gangtok, vide Judgment dtd. 27/8/2018, having reversed the finding of Conviction of the Learned Judicial Magistrate, Chungthang, North Sikkim, in G.R. Case No.327 of 2015, State of Sikkim v. Ramesh Sharma vide Judgment dtd. 28/12/2017, this Appeal has arisen.

(2.) (i) On 7/1/2015, the Appellant herein lodged Exhibit 16, the First Information Report (for short, the "FIR"), before the Sadar Police Station, which was registered as FIR No.08 of 2015, dtd. 7/1/2015 under Ss. 420 and 406 of the IPC against the Respondent No.1. The Appellant reported that the Respondent No.1, in the month of March, 2013, had informed him that Loan could be availed from the Syndicate Finance Pvt. Ltd., Mumbai, for the incomplete Hotel Project of his son with marginally lower rate of interest than the Nationalized Banks as also liberal moratorium period. The Respondent No.1 being known to the Appellant's close relative and having handled the Hotel Loan Project of his relative's wife, the Appellant agreed to the proposal. Pursuant thereto, for the said purpose the Respondent No.1 took a total sum of Rs.42,70,000.00 (Rupees forty two lakhs and seventy thousand) only, in two tranches by executing two Money Receipts, the first comprising of Rs.12,70,000.00 (Rupees twelve lakhs and seventy thousand) only, in March, 2013, and the second being a sum of Rs.30,00,000.00 (Rupees thirty lakhs) only, in August, 2013 as "Promoter's Capital Contribution." That, the Appellant suspected that the Respondent No.1, instead of investing the money for the required purpose, invested it in "Nirmal Bang Broking House" of which he was a Franchisee, for his personal benefit. Despite repeated requests, the Respondent No.1 refused to return his money. On 4/11/2014, the Appellant warned the Respondent No.1 that should he fail to return his money, he would be compelled to take necessary legal action against him. Thereupon, on 7/11/2014, the Respondent No.1 executed Exhibit 1, an Agreement, wherein he promised to pay the Appellant, the aforestated amount in three installments towards which, he issued three post-dated Cheques, dtd. 30/12/2014, 15/2/2015 and 31/3/2015, drawn on IDBI Bank and AXIS Bank. The first Cheque was deposited by the Appellant in his Account in the Central Bank of India, Gangtok Branch, but the Cheque was dishonoured by the said Bank on account of "insufficiency of funds" in the Respondent No.1's Account, hence the FIR. The matter was endorsed to the Investigating Officer (for short, the "I.O.") P.W.19 for investigation, on completion of which, Charge-Sheet was submitted against the Respondent No.1 under Sec. 420 and Sec. 406 of the IPC.

(3.) (i) It is necessary to clarify at the outset that before the Learned Trial Court, the parties were State of Sikkim v. Ramesh Sharma (the Respondent No.1 herein). In Appeal before the Learned First Appellate Court, the Respondent No.1 herein was the Appellant while the State (the Respondent No.2 herein) was the Respondent. Before this Court, it is the "Complainant" who is the "Appellant" and not the State. It goes without saying that the Complainant was represented by the State in G.R. Case No.327 of 2015, however, in the instant matter, in view of the State- Respondent No.2 not having preferred an Appeal, the Complainant has chosen to file this Appeal. In this context, reference is to be made to the provisions of Sec. 372 of the Code of Criminal Procedure, 1973 (for short, the "Cr.P.C.") which is extracted hereinbelow for easy reference;