Kishan Chand vs State of Haryana

M.L. Singhal, J.

Vide order dated 13.2.1996 Deep Chand alias Deepa and Kishan Chand were convicted under Section 410/34 of the Indian Penal Code. Kishan Chand was sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 800/ or in default of payment of fine to undergo further rigorous imprisonment for two months, while Deep Chand alias Deepa was sentenced to rigorous imprisonment for a period of one month and to pay fine of Rs. 200/ or in default of payment of fine to undergo further rigorous imprisonment for a period of one week under Section 420/34 of the Indian Penal Code by Judicial Magistrate Ist Class, Guhla.

On appeal to the Court of Session, learned Additional Sessions Judge, acquitted Deep Chand alias Deepa and appeal of Kishan Chand was dismissed in toto and sentence passed upon him by the learned Magistrate was up held.

Prosecution case in brief is that Ram Kishan made complaint to SHO Police Station, Pundri wherein he alleged that he was owning 12 acres of land in his cultivation. About 11/2 months prior to 11.6.1983 he had applied for a loan of Rs. 10,000/ for the purchase of motor, thresher from the Land Mortgage Bank Pundri through accused Kishan Chand and Hari Ram. Kishan Chand and Hari Ram were jointly running a shop under the name and style of M/s Krishna Traders, Pundri. Deep Chand used to assist and help Kishan Chand and Hari Ram in the supply of goods being sold by the firm M/s Krishna Traders, Pundri. Accused assured Ram Kishan and other loanees regarding the sanction of the loan. Loan was duly sanctioned and cheques for the amount of Rs. 10,000/, Rs. 9,000/, Rs. 10,000/ Rs. 10,000/ and Rs. 10,000/ were handed over to accused Kishan Chand as partner of M/s Krishna Traders, Pundri against authority letter issued by the loanees and the receipts executed by the loanees and by Kishan Chand. All the accused jointly kept the loan amounts with them. Amount of loan was not paid to Ram Kishan and others by the said firm. Accused jointly received the amounts by dishonestly inducing the bank into the belief that they had supplied threshers and electric motors to Ram Kishan etc. Accused jointly received an amount of Rs. 10,000/ each from the said bank by way of cheating in the name of Ajmer Singh son of Bakhtawar Singh, Bakhtawar Singh son of Tota Ram and Nirmal Singh son of Singh Ram. It was alleged that accused had also cheated Ram Singh, Multan Singh and Smt. Jaswinder Kaur. On this complaint case FIR 236 dated 11.6.1983 under Sections 420/34 of the Indian Penal Code was registered at Police Station, Pundri against Deep Chand alias Deepa, Kishan Chand and Hari Ram son of Lakhpat. Case was investigated. After investigation, Deep Chand alias Deepa, Kishan Chand and Hari Ram were challaned.

Hari Ram became proclaimed offender during the trial. Deep Chand alias Deepa and Kishan Chand were charged under Section 420/34 of the Indian Penal Code. They pleaded not guilty to the charge and claimed trial.

On the conclusion of the trial, learned Judicial Magistrate Ist Class, Guhla found the charge under Section 420/34 of the Indian Penal Code proved against Deep Chand alias Deepa and Kishan Chand. He accordingly convicted them thereunder and sentenced them as indicated above. Appeal was accepted by the learned Additional Sessions Judge, Kaithal qua Deep Chand alias Deepa while qua Kishan Chand appeal was dismissed.

Not satisfied with the decision of the two Courts below, Kishan Chand has come up in revision to this Court.

In my opinion, finding of guilt returned by the two Courts below concurrently on appreciation of evidence, which cannot be said to be unjust does not call for any interference in revision by this Court. So, conviction of Kishan Chand recorded by the two Courts below is maintained.

Learned counsel for the petitioner did not seriously contest the finding of guilt arrived at by the two Courts below and in my opinion rightly so. Smt. Jaswinder Kaur PW1 stated that for the purchase of thresher and electric motor, she applied for loan of Rs. 9,000/ in the Land Mortgage Bank, Pundri through accused Deep Chand, Kishan Chand and Hari Ram. She stated that loan of Rs. 9,000/ was sanctioned and the cheque for that amount was received by the accused and after obtaining her thumb impression assured her that thresher and electric motor shall be supplied to her after withdrawal of that amount of Rs. 9,000/ from the bank. She further stated that despite the accused having withdrawn the said amount of Rs. 9,000/ from the bank, they did not supply her thresher and electric motor nor was the amount paid to her. Accused cheated her and misappropriated the said amount. Nirmal Singh PW3 stated that accused Deepa, and Kishan Chand induced him and received amount of Rs. 10,000/ on his behalf but failed to deliver thresher and electric motor nor was the amount of Rs. 10,000/ returned to him. Accused misappropriated the said amount of Rs. 10,000/ and thus cheated him. Ram Singh PW4 is another loanee on whose application amount of Rs. 10,000/ was sanctioned as loan but the same was misappropriated by the accused as electric motor or thresher was not delivered to him nor the amount was returned to him. Multan Singh PW5 is another loanee who corroborated the version of Jaswinder Kaur and other PWs and stated that accused misappropriated amount of Rs. 10,000/. Ram Kishan PW9 also stated that amount of Rs. 10,000/ was sanctioned in his favour by the bank but the accused neither paid the said amount nor delivered the electric motor and thresher, but misappropriated the amount by cheating him. Girdawar Singh PW2 stated that on the application of loanees namely Ajmer Singh, Bakhtawar Singh and Nirmal Singh loan of Rs. 10,000/ each was sanctioned in their favour for the purchase of thresher and electric motor and the payments were made to accused Kishan Chand, proprietor of M/s Krishna Traders, Pundri vide receipts which find mention in his statement. Shamsher Singh PW10 stated that on the application of Jaswinder Kaur loan to the tune of Rs. 9,000/ was sanctioned in her favour for the purchase of electric motor and thresher through M/s Krishna Traders, Pundri. He further stated that on the basis of authority letter, the amount was paid to Kishan Chand of M/s Krishna Traders, Pundri. It is, thus, clear that electric motors and threshers were not supplied to the loanees by the firm M/s Krishna Traders, Pundri, although they had received the amount from the Land Mortgage Bank on behalf of the loanees for being utilised for supplying electric motors and threshers to them.

Faced with this position, learned counsel for the petitioner submitted that the case was registered in the year, 1983. Challan was put in Court in the year, 1985. We are now in the year, 1998. Petitioner has faced vagaries of criminal trial for about 15 years. This criminal trial has been hanging on his head like a damoclean sword for about 15 years. He has submitted what will be the recompense to the petitioner if he is not compensated for the mental agony he has suffered during all these years. He has submitted that the petitioner should be released on probation of good conduct. In my opinion, accused should be released on probation of good conduct. In Dalip Singh v. State of Haryana, 1997(2) RCR 506 , petitioner was a servant of a cooperative Society. He had been receiving amount from the loanees and the shareholders but not depositing with the society. Accused was put up on trial under Sections 408/409 Indian Penal Code. Trial took 17/18 years long. Accused faced mental agony and uncertainty. It was held that it would not be just to send the accused to jail. Conviction was upheld but sentence of imprisonment was set aside and the accused was directed to deposit the embezzled amount with society in instalments and the accused was released on probation. In Ranjha Ram v. State of Punjab, 1986(2) RCR (Criminal) 106 this Court allowed the benefit of the provisions of Probation of Offenders Act, 1958 to Ranjha Ram when Ranjha Ram who was SecretarycumSalesman of the Cooperative Agricultural Service Society, had embezzled the amount of Rs. 15,000/ belonging to the Society by directing him to pay Rs. 15,000/ as compensation to the Society. In the case in hand also the petitioner mis appropriated the amount belonging to Ram Kishan, Jaswinder Kaur, Nirmal Singh, Ran Singh and Multan Singh PWs. Ram Kishan etc. had raised loan from the Land Mortgage Bank for the purchase of electric motors and threshers. Firm M/s Krishna Traders, Pundri of which Kishan Chand was one of the partners was to supply electric motors and threshers to them for the said amounts. M/s Krishna Traders, Pundri of which petitioner was partner misappropriated that amount and did not supply threshers and electric motors. Sentence of imprisonment passed upon the petitioner is set aside and he is ordered to be released on probation of good conduct on his furnishing personal bond in the sum of Rs. 5,000/ together with surety bond in the like amount for a period of two years. During this period he shall keep the peace and be of good behaviour. During this period, he shall appear before the Court to receive the sentence passed upon him as and when he is called upon. He shall execute these bonds before the Judicial Magistrate Ist Class, Guhla forthwith. In addition, he shall pay Rs. 30,000/ as compensation to Ram Kishan, Jaswinder Kaur, Ran Singh, Nirmal Singh and Multan Singh PWs. Rs. 30,000/ shall be shared by them equally. Release of the petitioner on probation of good conduct plus the sentence which he has already undergo will adequately meet the ends of justice. The amount of Rs. 30,000/ shall be deposited by Kishan Chand in the court of Judicial Magistrate Ist Class, Guhla within two months from today. On the execution of the bonds as ordered above, petitioner shall be released forthwith.

Subject to the modification in the sentence, this revision fails and is dismissed.

Revision dismissed.