(In Jail) v. State of Chhattisgarh

HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Revision No.84 oF 2003 APPLICANT: (In Jail) Ganesh Giri Versus NON-APPLICANT: State of Chhattisgarh {Criminal revision under Section 397 & 401 oF the Criminal Procedure Code} Present: Mr. Basanl: Dewangan, counsel For the applicanL Mr. U.K.S. Chandel, Panel Lawyer for the State. Sinale Bench: Hon'ble Mr. T.P. Sharma. J ORDER (12-12-2013)

Heard.

By this revision, the applicant has challenged legality & propriety oF the judgment dated 15-2-2003 passed by the Additional Sessions Judge, Rajnandgaon in Criminal Appeal No.36/2000, aFfirming the judgment oF conviction & order oF sentence dated 15-2-2000 passed by the Judicial Magistrate First Class, Rajnandgaon in Criminal Case No.674/1998, whereby & whereunder the trial Court has convicted the applicant under Sections 418 & 420 oF the IPC and sentenced him 1:0 undergo Rl for one year & pay fine of Rs.200/-, in default additional Rl Forone month, on both counts.

Judgments and records oF both the Courts below perused.

As per case oF the prosecution, the complainant contacted the applicant For Fitting oF shutter in his house, aFter examination oF shutter, the applicant in Formed the complainanl: that spring is not Fastened with the shutter and spring would be required, thereafter, at his instance, the applicant purchased springs and completed the work. The applicant demanded labour charges and cosl: oF springs i.e. Rs.2,800/- for 8 springs at the rate oF Rs.350/- per piece which was paid by the complainant through cheque. The complainant enquired about the cost oF springs and noticed that cost oF spring was not then he demanded money. Rs.350/-, but Rs.90/- per piece, applicant was ready to pay, but thereafter, he reFused to pay. Finally, report was lodged. AFter investigation, charge sheet was Filed. In order to prove the prosecution examined as many as seven the guilt oF the applicant, Initially, ^ /'/ ^' '"v..; .y :^:-s^^ ^^./ -4-" !*^^i'' h"'^' .-•l 'vss-^^g^.^>'~ Page 2 oF 3 Cr.Rev. No.84/2003 witnesses. Theaccused wasexamined under Section 313 oFthe CrPC. After providing opportunity oF hearing, the trial Court has convicted and sentenced the applicant as aForesaid, same has been afFirmed by the appellateCourt

Leamed counsel for the applicant submits that the applicant is a mechanic, as requested by the complainant:, he completed thejob of Fitting oFshutter. He also informed the complainant that eight springs would be required For fitting the shutter. He purchased springs and aFter fitting oF shutter, he demanded the cost oF springs and labour charge. Leamed counsel further submits that the applicantis not seller oF springs, he has nob cheated the complainant and at the instance of the complainant, he has purchased springs from outside. As per statement of the complainant, he enquired about cost of spring which was Rs.90/- per piece, but he has not examined any witness or shop keeper to prove aForesaid Fact that cost oF spring was Rs.90/- and not Rs.350/-, inter alia, the the spring costing about Rs.90/- and the spring which the applicant has Fastened were one and same. In absence oF aForesaid facts by convicting and sentencing the applicant, both the Courts below have committed illegality.

On the other hand, leamed State counsel opposes the revision and submits that the applicant was bound to protect the interest oF the complainanb, but instead of protecting the interest oF the complainant, the applicant has cheated the complainant and thereby caused wrongFul loss to the complainant to the tune of Rs.2,200/-. On the basis of aForesaid evidence, by convicting and sentencing the applicant, the Courts below have not committed any illegality.

As per evidence of witnesses, the applicant: who is a mechanic/Fitter was engaged by the complainant For FitUng oF shutter, he in Formed the complainant about: the requirement oF 8 springs and on the direction oF the complainant, he purchased springs and compleked the job oF Fitting oF shutter. The applicant demanded cost of springs and labour charge From the complainantwhich was paid by the complainant. Complainant Dr. R.N. Netam (PW-2) has deposed that afterwards, he enquired about the cost oF spring and Found that cost oF spring was about Rs.90/- per piece. The prosecution has examined seven witnesses, but has not examined any witness or shop '^ keeper to show the exact cost oF spring. The prosecution has not compared the spring used by the applicant in Fitting of shutter with the spring costing '^\ • ''';^-.-. '^ . Soma Cr.Rev. No.84/2003 Rs.90/-. In absence of such prooF, it would be diFFicult to hold that cost of spring that too applied by the applicant in fitting of shutter was Rs.90/- and not Rs.350/-. In absence of such prooF, by convicting and sentencing the applicant both the Courts below have committed illegality.

Consequently, the revision deserves to be allowed and is hereby allowed. Conviction & sentence oF the applicant under SecUons 418 & 420 oF the IPC are hereby set aside and he is acquitted oF the said charges. He be set at liberty at once. Fine, if paid, shall be reFunded to the applicant. Sd/- T.P. Sharma Judge