Chitraman Chettri v. State of Sikkim

Executive of Shriram Transport Finance Company Limited on 20- 07-2015 and entrusted with the responsibility of collecting Equated Monthly Installment (EMI) from customers who had availed of loan from the said company. On 04-09-2017, one Purna Bahadur Mukhia, Branch Manager, Shriram Transport Finance Company Limited, Jorethang Branch, filed a Complaint, Exhibit – 1, on behalf of the said Company, stating that the Revisionist, a permanent resident of Timburbong, Soreng, an employee of the company had collected EMIs from borrowers, amounting to a sum of ₹ 5,76,780/-(Rupees lakhs, seventy six thousand, seven hundred and eighty) only, but had not deposited the collected amounts at the branch office. The Revisionist had misappropriated the said amount which had been deposited with him by fourteen Crl. Rev. P. No.01 of 2023 2 Chitraman Chettri vs. State of Sikkim customers. Investigation was taken up after registration of the case and on completion of investigation, Charge-Sheet was submitted against the Revisionist under Section 408 of the Indian Penal Code, 1860 (hereinafter, the “IPC”). (i) The Learned Trial Court framed charge against the Revisionist under Section 408 of the IPC, to which he entered a plea of „not guilty‟ and claimed trial. The Prosecution examined twenty-four witnesses including the Investigating Officer (I.O.) to establish their case. This was followed by the examination of the Accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the “Cr.P.C.”), during which he claimed innocence and asserted that he was falsely implicated in the matter. The Court of the Learned Judicial Magistrate, Jorethang Sub-Division, South Sikkim, at Jorethang, on consideration of all the evidence and materials before it convicted the Revisionist under Section 408 of the IPC, vide its Judgment, dated 28-02- 2022, in GR Case No.15 of 2019 (State of Sikkim vs. Chitraman Chettri). He was sentenced to undergo simple imprisonment of one year, with fine of ₹ 5,000/- (Rupees five thousand) only, for the offence under Section 408 of the IPC, with a default clause of imprisonment, vide the Order on Sentence of the same date. (ii) On 24-03-2022 against the said Order of conviction, an Appeal was filed before the Court of the Learned Sessions Judge, at Namchi, Sikkim, being Criminal Appeal No.03 of 2022 (Chitraman Chettri vs. State of Sikkim) and on 28-03-2022, the Revisionist was enlarged on bail. The Court of the Learned Sessions Judge, vide its impugned Judgment, dated 28-02-2023, in Criminal Appeal Case No.03 of 2022 (Chitraman Chettri vs. State of Sikkim) upheld the Crl. Rev. P. No.01 of 2023 3 Chitraman Chettri vs. State of Sikkim Judgment of conviction and Order on Sentence. The prayer for probation, in terms of Section 4 of the Probation of Offenders Act, 1958 (for short “Probation Act”), was however rejected by the Court of the Learned Sessions Judge. Against the said Judgment this Revision has been preferred.

2. Learned Counsel for the Revisionist submits that the only point that he seeks to press in Revision before this Court is that the Revisionist be extended the benefit of Section 4 of the Probation of Offenders Act, 1958. That, he has no criminal antecedents and his aged parents who live in a remote part of Soreng District, Sikkim, are dependent on him for their livelihood which he is presently eking out by selling vegetables. That, he has a wife, who is unemployed and a daughter aged about six years, who are also completely dependent on him. That, incarcerating him would in fact be extending the penalty to the family members as in his absence they would be deprived of their day to day requirements and means of livelihood. That, till date he has returned a sum of ₹ 2,50,000/-(Rupees two lakhs and fifty thousand) only, to the persons from whom he had collected the EMIs. That, should this Court be inclined to consider his prayer for probation, he undertakes to repay the remaining amount within a period of twelve months to the persons from whom he had collected the EMIs.

3. Learned Additional Public Prosecutor for the State- Respondent submits that he has no objection to the prayers put forth, subject to the condition that, the repayment shall be made by the Revisionist within twelve months of this Judgment. Should Crl. Rev. P. No.01 of 2023 4 Chitraman Chettri vs. State of Sikkim he default, then he may be ordered to complete his sentence as pronounced by the Learned Trial Court.

4. Heard the submissions of Learned Counsel for the parties.

5. Section 4 of the Probation Act of Offenders Act, 1958, reads as follows; “4. Power of court to release certain offenders on probation of good conduct.—(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub- section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub- section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.” Crl. Rev. P. No.01 of 2023 5 Chitraman Chettri vs. State of Sikkim

6. The provision is thus applicable where a person is found guilty of having committed an offence but the penalty for the offence committed does not extend to life imprisonment or death. The Court at its discretion may release such a convict on probation of good conduct, on his furnishing a bond as provided in the section. It needs no reiteration here that while invoking the provision, the circumstances of the case, the character of the offender and the nature of the offence have to be taken into consideration.

7. The Supreme Court in Jagat Pal Singh and Others vs. State of Haryana1 extended the benefit of probation while upholding the conviction of the convicts under Section 323, 452 and 506 of the IPC and released them on executing a bond before the Magistrate for maintaining good behaviour and peace for the period of six months. (i) In Sitaram Paswan and Another vs. State of Bihar2, the Supreme Court observed that for exercising the power which is discretionary, the Court has to consider the circumstances of the case, the nature of the offence and the character of the offender. While consideration the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. The benefit available to the Accused under Section 4 of the Probation Act is subject to the limitation embodied in the provisions and the word “may” clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation Act, having regard to the nature of the offence and the