Crl. Revision No. 2097 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 2097 of 2009 O&M) Date of decision: February 17, 2010 Waryam Singh ...Petitioner Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. SK Vohra, Advocate, for the petitioner. Mr. APS Brar, Sr. DAG, Punjab. GURDEV SINGH, J. This revision has been preferred by the petitioner/accused,Waryam Singh, against the judgment dated 27.7.2009 passed by Additional Sessions Judge, Ropar, dismissing the appeal filed by the petitioner against the judgment dated 3.10.2006 passed by the Judicial Magistrate Ist Class, Ropar, convicting him for the offences under Sections 406 and 420 IPC and sentencing him to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 2,000/- and in default thereof to undergo further rigorous imprisonment for one month under Section 420 IPC and to undergo rigorous imprisonment for a period of two years under Section 406 IPC. The prosecution story, in brief, is that a written application was given to the SSP, Ropar, by the Manager, Oriental Bank of Commerce, Crl. Revision No. 2097 of 2009 2 Ropar on 13.112.000. It was averred in that application that the petitioner was the proprietor of the firm M/s Amrit Traders, who requested the bank for a cash credit limit, which was sanctioned to the tune of Rs. 3 lakhs. The petitioner executed the loan documents and for securing re-payment of the loan, mortgaged his house bearing No. 7364/5, Gian Colony, Sant Nagar, Lehal, Patiala. At that time he executed an affidavit that the said property was free from all encumbrances and undertook not to sell the same without prior permission of the bank in writing. He also declared that he has not taken any other loan from any other financial institution against that property. He hypothecated the stocks purchased with the help of that loan amount. The hypothecated goods belonged to the bank and were lying with the petitioner as trustee and he was not to sell the same. However, those hypothecated goods consisting of basmati rice, worth Rs. 4 lakhs, were illegally sold by the petitioner for a sum of Rs. 4 lakhs and he failed to deposit that amount with the bank. He misappropriated the sale proceeds thereof. On the basis of that application, FIR was registered. During the investigation, statements of numbers of witnesses were recorded and relevant documents were taken into possession. After completion of the investigation, the challan was presented before the Judicial Magistrate who on the basis of the documents relied upon by the prosecution, came to the conclusion that there were sufficient grounds for presuming that the petitioner committed offences under Sections 420 and 406 IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of the petitioner, the prosecution examined Nardev Raj Mitte (PW-1), Deepak Behal (PW-2), Bhupinder Singh (PW-3), Satinder Kumar (PW-4), Jasbir Singh (PW-5), Nirmal Singh (PW-6), Dr. Crl. Revision No. 2097 of 2009 3 Jasvir Singh (PW-7), Ram Lal Chohan (PW-9), Jagjit Singh (PW-10), Daljit Singh Saini (PW-11), Pritpal Singh (PW-12) and ASI Harji Ram (PW-13). After the prosecution closed its evidence, the petitioner was examined and his statement was recorded under Section 313 of the Criminal Procedure Code (hereinafter referred to as 'the Code'). All the incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his innocence and false implication. He stated that he was the owner in possession of the property which was mortgaged with the bank and the report of the concerned Patwari was also placed on record. The bank officials visited that property and it was only thereafter that loan was sanctioned. He was called upon to enter on his defence but he did not produce any evidence in his defence. After hearing the Additional PP for the State, learned counsel for the accused and going through the record, the Judicial Magistrate Ist Class convicted and sentenced the accused for the offences under Sections 420 and 406 IPC and sentenced him, as aforesaid. He preferred an appeal against that conviction and sentence but the same was dismissed, vide aforesaid judgment. Notice of the appeal was given to the State and the same has been contested on its behalf by Shri APS Brar, Sr. DAG, Punjab. I have heard learned counsel for both the sides. At the time of arguments, learned counsel for the petitioner only assailed the order of sentence. He submits that the petitioner is an old man of 72 years and had no intention to cheat the bank as he has already deposited Rs. 3 lacs rupees with the bank towards the loan amount. He did Crl. Revision No. 2097 of 2009 4 not commit any such offence of criminal mis-appropriation by selling the hypothecated goods. He is not a previous convict. Keeping in view that fact and other circumstances brought on record, he should have been released on probation by the trial court or at least by the appellate court. No reasons have been recorded for refusing that benefit. He prayed that the petitioner be released on probation and in case this Court is not inclined to grant that benefit, then the sentence of imprisonment should be reduced as already undergone. On the other hand, it was contended by the State counsel that the petitioner was convicted for serious offence and he failed to bring on record any mitigating circumstances. Therefore, there was no ground for releasing him on probation. There is also no ground for reducing the sentence so imposed upon him. On the one hand, counsel for the petitioner has not challenged the conviction recorded by the trial court and upheld by the appellate court and on the other hand, he has tried to argue that no offence of criminal misappropriation was committed by the petitioner by selling the hypothecated goods. As he has not challenged the conviction, so that aspect of the case is not to be gone into. It is not the case of the State that the petitioner is a previous convict. He was sentenced for the offences under Sections 420 and 406 IPC, which are punishable with imprisonment for a period of less than seven years. Therefore, the petitioner could have been dealt with under Section 360 of the Code. The Courts were required to record special reason, as required by Section 361 of the Code, for refusing the benefit of probation. The trial court in the order of sentence observed, for refusing that benefit, Crl. Revision No. 2097 of 2009 5 that the offences committed by the petitioner were quite serious in nature and in view of the nature of those offences, he did not deem it fit for granting the concession of probation. It is pertinent to note that the case was of the advancement of the loan. The petitioner did not disclose, at the time of the advancement of the loan, that the property being offered by him as security was already encumbered. He also sold the hypothecated goods. But the fact remains that, at the time of arguments, it was not disputed by the State counsel, that the petitioner is depositing the amount towards the loan so advanced to him. It cannot be said that there was no design on the part of the petitioner to commit aforesaid offences. He was required to give declaration in writing that the property being offered as security for re- payment of the loan was free from all encumbrances. He concealed the fact that he had already mortgaged that property to the other financial institution for securing re-payment of the loan. Though there was pre-design on his part to commit the offence, yet that itself is not a ground for dis-allowing the benefit of probation to him. The fact that the petitioner is an old man of 72 years was not disputed by the State counsel at the time of arguments. It was also not disputed that the loan amount has been repaid by the petitioner. Keeping in view these facts and that the petitioner is not a previous convict, I think it is proper and expedient to release him on probation instead of sentencing him at once to any punishment. Accordingly, he is ordered to be released on probation under Section 360 of the Code on his executing personal bond in the sum of Rs. 10,000/- with a surety in the like amount, to the satisfaction of the trial court, for a period of two years, to appear and receive the sentence as and when called upon to do so during that period and to keep Crl. Revision No. 2097 of 2009 6 peace and be of good behaviour, in the meanwhile. He is directed to pay a sum of Rs. 20,000/- as costs of the prosecution. The fine already deposited shall be adjusted towards that amount. Revision petition is disposed of accordingly. February 17, 2010 (GURDEV SINGH ) prem JUDGE