Varinder Kumar & Anr. v. Mr. Deepak Jindal, Deputy Advocate

Kumar and Hemant Kumar, was named as accused in case FIR No. 819 dated 14.12.1983 registered at Police Station City, Karnal, under Sections 406, 420, 506 and 120-B IPC. Jai Chand Miglani died, and the proceedings were dropped against him on 30.7.1992. The Court of Judicial Magistrate, Karnal, acquitted the petitioners for offence under Section 506 IPC and held them guilty for offence under Sections 406, 420 and 120-B IPC. Both the accused Varinder Kumar and Hemant Kumar were sentenced to undergo Criminal Revision No. 103 of 2000 2 rigorous imprisonment for two years each and pay fine of Rs.2,000/- each for offence under Section 406 IPC. In default of payment of fine, to undergo rigorous imprisonment for one month each. They were also sentenced to undergo rigorous imprisonment for two years each and pay fine of Rs.1,000/- each for commission of offence under Section 420 IPC. In default of payment of fine, to undergo rigorous imprisonment for 15 days each. They were further sentenced to undergo rigorous imprisonment for three months each for offence under Section 120-B IPC and pay fine of Rs.200/- each. In default of payment of fine, to undergo rigorous imprisonment for 15 days each. All the sentences were ordered to run concurrent. Aggrieved against their conviction and sentence, petitioners had filed an appeal. The Court of Additional Sessions Judge, Karnal, found no merit in the appeal, upheld conviction of the accused and maintained the sentence. The appeal was dismissed. Hence, present revision petition. A written complaint Ex.PW.2/A was submitted by Chander Parkash to the Senior Superintendent of Police, Karnal. In the complaint, it was stated that petitioners were running a business of chit fund at their business premises at Kunjpura Road, Karnal, by inviting general public to participate in an open auction of the prize money by subscribing to the chit. The draw of chits was conducted once in a month and the subscriber offering maximum discount was declared as prize winner of the draw. The applicant and many other persons had participated in the chit fund business on the assurance given by the accused that they had the requisite sanction and permission of the Reserve Bank of India, and Criminal Revision No. 103 of 2000 3 the State Government. The accused were running various groups. In one of the group prize money was Rs.30,000/- and besides the complainant Chander Parkash, D.N. Aggarwal, Dharu Kumar alias Pappu Kabari, V.K. Mittal, Parshotam Singh, V.K. Jain, N.D. Chhabra, M.L.Jain, V.K. Sehgal, Swaran Singh, Joginder Dhamija and Sham Sunder Bhatia had participated. It was stated that the accused had misappropriated the amount of prize money of the subscriber for their personal use and gain. Thus, they committed an offence under Section 420, 406 and 120-B IPC. The complainant made a grievance that he had been cheated to the tune of Rs.15,000/- by the accused. From the record, it was stated that accused were running 52 groups of different denomination where contribution was ranging from Rs.2,000/- to Rs.45,000/- per month and each group contained 15 to 20 members. When the fraud played by the accused came to light, a Panchayat was held. The accused Jai Chand Miglani and his sons agreed in the Panchayat to pay the loan to various persons. A writing to this effect was executed by the accused on 23.7.1983 but the accused failed to adhere to the compromise. The matter was investigated and report under Section 173 Cr.P.C. was submitted. Prosecution examined 12 witnesses namely Paramjit Singh as PW.1, Chander Parkash, complainant, as PW.2, Lalitbir as PW.3, Hargovind as PW.4, S.P. Singhla as PW.5, Vipin Kumar as PW.6, Anil Kumar Jain as PW.7, Nirdosh Kumar as PW.8, Virender Jain as PW.9, Maya Devi as PW.10, Parveen Jain as PW.11 and Chunni Lal as PW.12. Criminal Revision No. 103 of 2000 4 Thereafter, the entire incriminating evidence was put to the accused and their statements under Section 313 Cr.P.C. were recorded. They denied the incriminating circumstances and pleaded innocence. The accused had even denied that they were running a chit fund business and had cheated the subscribers. The trial Court rejected the argument that all these 12 witnesses being subscribers were the complainant and no independent corroboration has been coming forward to support the prosecution. The contention that the Investigating Officer was not examined, therefore, a prejudice was caused to the accused, was also rejected. Another submission made that liability, if any, of the accused is of civil nature and no criminal offence has been committed, was not accepted. The Appellate Court also found no merit in the above noted contentions which were repeated, before the Appellate Court after they had found no favour with the trial Court. Mr. V.K. Bali, Advocate, appearing for the petitioners, has submitted that except the oral deposition of the witnesses, prosecution has failed to prove complicity of the accused on basis of any document. Therefore, there is a complete lack of documentary evidence. In these circumstances, no credence should be granted to the testimony of witnesses. Secondly, it was submitted that Ex.P53 Jamanat Nama has been executed by Dhruv Kumar and Suraj Parkash and the accused have not signed the same, therefore, same cannot be taken into consideration to infer the involvement of the accused in the alleged crime. Criminal Revision No. 103 of 2000 5 Thirdly, it was submitted that PW.5 S.P.Singhla had stated that he had contributed various amounts to the chit fund and committee was run by the accused. They had returned the money. Therefore, no amount is due to him from the accused. Counsel has further drawn my attention to testimony of PW.9 Virender Jain who was also declared hostile like PW.5 S.P. Singhla. PW.7 Anil Kumar, PW.8 Nirdosh Kumar and PW.10 Maya Devi had also not supported the prosecution case. Counsel has laid much emphasis on the testimony of PW.10 Maya Devi, who stated that she had become member of the committees run by Jai Chand Miglani who refused to return the amount. This witness had not stated a word against the present petitioners. PW.10 Maya Devi stated that Jai Chand Miglani had died and she is not able to identify his sons. Therefore, counsel for the petitioner has submitted that offence, if any, was committed by the father of the petitioner and not the petitioners. A revisional Court normally desist from re-appreciating the evidence of the witnesses. Re-appraisal of the evidence is not the function of the reversional Court. However, the arguments raised by counsel for the petitioners not only confined to the facts but also to be considered in the light of the question formulated, whether documents are necessary to corroborate the witnesses examined by the prosecution and what is the import of document Ex.P53 and thirdly, if few witnesses do not support the prosecution whether the entire case of the prosecution is to be thrown at the hustings. To answer these questions, this Court has undertaken the exercise, to look and examine the evidence. Criminal Revision No. 103 of 2000 6 PW.1 Paramjit Singh has specifically stated that on the promise extended by the accused he had given six instalments of Rs.3,000/- each to the accused. He further stated that he asked the accused to further return the money but not only they refused but threatened to liquidate him. PW.2 Chander Parkash, complainant, named all the three accused and stated that the accused were running a shop. He had paid 17 instalments towards the committee of Rs.4,000/- per month and had paid 13 instalments of committee of Rs.30,000/- per month. He placed on record compromise Mark A. Even if Mark A is ignored, factum of entrustment and demand to return the amount deposited is proved from the testimony of witnesses. To similar effect is the statement of PW.3 Lalitbir and PW.4 Hargovind. PW.6 Vipin Kumar stated that he contributed Rs.500/- for four months towards instalments. He had been paying the amount to all the three accused. He had paid 13 instalments towards another group, when he demanded return of the amount, accused had refused. PW.11 Parveen Jain and PW.12 Chunni Lal appeared and deposed to the similar effect in the Court. Once the witnesses have stated in categoric terms that they paid the amount on the promise made by the accused, the entrustment is proved, when they demanded the amount back, it was refused. The offence falling under Section 406 IPC is made out against the accused. The witnesses were made to believe about the profit which the scheme could not generate. The witnesses were also made to understand that the scheme was approved by Reserve Bank of India. Thus, ingredients Criminal Revision No. 103 of 2000 7 of offence under Section 420 IPC are also made out. A wrongful loss was caused to the witnesses with dishonest intention on the part of the accused. Once the testimony of witnesses aspire confidence, documents are not necessary for corroboration. The Courts have always insisted for quality of evidence and not quantity of evidence. A few witnesses may have not supported the prosecution. It is not to be inferred that other witnesses whose testimony aspire confidence is to be ignored. Even if document Ex.P53 is taken out of consideration, yet offence is made out against the petitioners. Therefore, there is no merit in the present revision petition and the same is dismissed. Counsel for the petitioner has also made an alternative prayer that in the present case witnesses parted money in the year 1982 and

1983. The FIR was registered in the year 1983. Petitioners have suffered mental pain and agony of the protracted trial. About 27 years are going to elapse. Therefore, reduction in the sentence be considered by this Court. Taking into consideration alternative submission made by counsel for the petitioner, this Court is of the view that ends of justice will be fully met in case sentence of two years awarded for offence under Sections 406 and 420 IPC (on both the counts) is reduced to nine months rigorous imprisonment. However, sentence of fine and default clause is maintained. The sentence of nine months under Sections 406 and 420 IPC shall run concurrent with the sentence awarded under Section 120-B IPC. Criminal Revision No. 103 of 2000 8 With modification in sentence, the present revision petition is dismissed. February 10, 2010 “DK” (Kanwaljit Singh Ahluwalia) Judge