Criminal Revision No. 1599 of 2005 · Punjab And Haryana High Court · 2010

Hoshiarpur. Subject of the application stated that it was submitted against (1) Joy Phillips (2) Karam and Robert, brothers of Joy Phillips and (3) Anju wife of Joy Phillips, residents of Chabbewal, Ludhiana for cheating the applicants of Rs.3.30 lacs on the pretext of sending them abroad. The application when translated into English, reads as under: “Sir, we the undersigned persons respectfully submit as under: Criminal Revision No.1599 of 2005 2

1. That about one and a half year ago the above said persons, for sending us to Sweden, obtained Rs.3.30 lacs (from Santokh Singh Rs.75,000/-; Manjit Singh Rs.75,000/-; Harvinder Singh Rs.75,000/-; Mangat Singh Rs.75,000/- and from Gurvinder Singh Rs.30,000/-). This amount was received by them at the house of Amrik Singh, where they were residing. The amount was entrusted to them in the presence of Gurmel Singh Sarpanch, resident of Bham; Harbhajan Singh son of Hari Ram Singh, resident of Nidalo and Gurdev Singh son of Mohan Singh, resident of Chuhrowali, District Jalandhar. They had assured that within three months they will send us abroad. But a sufficient time has elapsed, neither they have sent us abroad nor have returned our money. We have met them a number of times but they have been making excuses and putting us off on one pretext or the other. Now they have bluntly refused to pay back. Rather they have given us threats that in case the money is demanded back, we will have to suffer bad consequences. We are harassed and are in grief.

2. We are poor persons and are unable to bear such a heavy loss. We have given the amount with great difficulty, after taking a loan. These persons have committed fraud and cheated us. It is therefore, requested that taking the above circumstances into consideration, the matter be immediately investigated and appropriate legal action be taken against them and Rs.3.30 lacs given by us be got returned. We pray for justice. Thanking you,

23.02.1998 Sd/-

1. Santokh Singh son of Kartar Singh

2. Majit Singh son of Jagat Singh

3. Mangat Singh son of Joginder Singh

4. Harvinder Singh son of Resham Singh

5. Gurvidner Singh son of Dhanna Singh Encls.: Along with this application, agreements signed by the accused are also enclosed.” Criminal Revision No.1599 of 2005 3 The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted. The Court of Additional Chief Judicial Magistrate, Hoshiarpur framed charge against the petitioners. The charge stated that on 28th July, 1996 at about 4.30 p.m. in the area of Chabbewal, Joy Phillips, Anju, Robert and Karam, in order to commit deceit, cheated Santokh Singh, Manjit Singh, Mangat Singh, Harvinder Singh and Gurvinder Singh and committed an offence punishable under Section 120-B IPC. Secondly, Santokh Singh, Manjit Singh, Mangat Singh and Harvinder Singh gave Rs.75,000/- each and Gurvinder Singh Rs.30,000/-, which the accused had refused to return and thus, they committed offence under Section 406 IPC. Furthermore, the accused have converted this amount to their own use by causing wrongful loss to the complainants, thus committed an offence under Section 420 IPC. The accused pleaded not guilty and claimed trial. Prosecution examined Santokh Singh as PW-1, Manjit Singh as PW-2, Gurvinder Singh as PW-3 and Harvinder Singh as PW-4. ASI Rajinder Singh PW-5 had partly investigated the case. ASI Ravinder Singh PW-6 was the Investigating Officer. Harbhajan Singh PW-7 and Gurmel Singh PW-9 stated that in their presence, the accused had received the amount from the victims. Constable Gurjit Singh PW-8 proved formal registration of the FIR Ex.PW8/A. The trial Court acquitted Robert and Karam accused, however it found the accused Joy Phillips and his wife Anju guilty of the offence punishable under Section 420, 120-B IPC and sentenced them as under: Sr. No. Name of convict Under Section Sentence awarded Criminal Revision No.1599 of 2005 4

1. Joy Phillips 420 IPC To undergo rigorous imprisonment for a period of one year and to pay a

2. Anju fine of Rs.1500/- in default further undergo RI for a period of three months. 120-B To undergo rigorous imprisonment IPC for a period of three months and to pay a fine of Rs.500/-, in default to further undergo RI for a period of one month. To undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1000/- in default further undergo RI for a period of two months. To undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.500/-, in default to further undergo RI for a period of one month. 420 IPC 120-B IPC All the sentences of imprisonment were ordered to run concurrently. Aggrieved against the same, petitioners had filed an appeal. The same was dismissed, as the appellate Court upheld the conviction and maintained the sentence awarded to the petitioners. Mr.J.B.S. Gill, Advocate appearing for the petitioners, has submitted that both the courts below have wrongly relied upon the compromise Ex.PA. It has been submitted that in Ex.PA, no allegation surfaces against petitioner No.2 Anju alias Bholi. Counsel has further submitted that on behalf of the petitioners, a Habeas Corpus petition was preferred and Anju alias Bholi along with her children was recovered from the illegal custody of Santokh Singh. Furthermore, it has been submitted that there is no documentary evidence with the prosecution to prove that the accused had received the amount. Both the courts below have placed implicit reliance upon the testimonies of the victims, i.e. Santokh Singh PW-1, Manjit Singh PW-2, Criminal Revision No.1599 of 2005 5 Gurvinder Singh PW-3 and Harvinder Singh PW-4 as their testimonies have been duly corroborated by Harbhajan Singh PW-7 and Gurmel Singh PW-9. I have perused the testimonies of these witnesses. It is not only one person, to whom the petitioners have deceived but they are five persons. Santokh Singh, Manjit Singh and Gurvinder Singh belong to village Bham whereas Mangat Singh and Harvinder Singh belong to different villages. It is nowhere the case of the accused that they have been falsely implicated due to inimical relations. Counsel for the petitioners has failed to point out any patent illegality or irregularity in the judgments of two Courts below. It is not necessary that where innocent persons part money for going abroad, a receipt is executed or a document is prepared. Therefore, the oral assertion of the witnesses, which is duly corroborated by the independent witnesses, cannot be discarded. Furthermore, this Court while exercising revisional jurisdiction, will not re-appreciate or do re- appraisal of the evidence, when both the courts below have held that the testimonies of the witnesses aspire confidence. Faced with this situation, Mr.Gill has stated that the occurrence, in the present case, pertains to the year 1996. The petitioners have already suffered mental pain and agony of a protracted trial for about 14 years. It is further submitted that at the time of occurrence, petitioner Joy Phillips was aged about 39 years and he is the sole breadwinner of his family, therefore, these mitigating circumstances be considered for taking a lenient view in reducing their quantum of sentence. I have given my thoughtful consideration to the submissions made by counsel for the petitioners. Anju alias Bholi is a woman, therefore, this Court is of the opinion that she can be released on probation. Accordingly, she is ordered to be released on probation under Probation of Offenders Act, 1958 for a period of one year on furnishing personal/surety bonds to this effect to the satisfaction of the trial Court with an undertaking Criminal Revision No.1599 of 2005 6 to maintain peace, good conduct and behaviour during the period of probation. In case she commits breach of any of the terms and conditions of the bonds, she will be called upon by the trial Court to undergo the sentence awarded. Though Joy Phillips has cheated five innocent villagers, but due to mitigating circumstances spelt above, the sentence awarded to him is reduced from one year to nine months rigorous imprisonment. With the observations made above, present revision petition is disposed of. March 9, 2010 [KANWALJIT SINGH AHLUWALIA] JUDGE