IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No.819 of 2000 Date of decision: May 13, 2010 Balbir Singh and another .. Petitioners Vs. State of Punjab .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Anmol Partap Singh Mann, Advocate for the petitioners. Mr. C.S. Brar, DAG, Punjab for the respondent. A.N. Jindal, J Having been slapped with concurrent findings returned by both the courts below, convicting the accused-petitioners (herein referred as 'the petitioner') under Section 420 read with Section 34 IPC and sentencing them undergo rigorous imprisonment for 1- ½ years and to pay fine of Rs.500/- each, the petitioners have come up in appeal. The allegations against the petitioners relate to the alluring of two innocent persons thereby inducing them to part with Rs.12 lacs on the false promise that they will be sent abroad. Briefly stated, the facts of the case are that Faqir Singh had a son namely Balwinder Singh and Balbir Singh had a son namely Surinder Kumar. Both of them were anxious to send their sons abroad. Manjit Kaur accused while coming to know about their anxiety contacted Faqir Singh that his husband Balbir Singh accused had got two visas and if he wanted to send his son abroad, then he could arrange Rs.6 lacs. Such persuasion was also made upon Jugal Kishore for sending his son Surinder Kumar abroad. Thereafter, both Faqir Singh and Jugal Kishore in the company of Baldev Singh and Surat Singh went to the house of the accused and handed over Rs.12 lacs. Surat Singh sought assurance from the accused that they should not be cheated, upon which Manjit Kaur petitioner told that they own a house worth Rs.15-20 lacs and they could indemnify them by the sale of the said house and further assured that their sons would reach America within 2-3 months. She also received passports of Balwinder Singh and Surinder Criminal Revision No.819 of 2000 -2- *** Kumar for further necessary action. However, they neither sent them abroad nor returned the money, rather they after leaving the village shifted to Delhi. On the application Ex.PA moved by Faqir Singh, a case was registered against the accused. The accused were arrested. Passport of Surinder Kumar was taken into possession from the accused Balbir Singh, vide memo Ex.PC/1. On completion of the investigation, report under Section 173 Cr.P.C. was submitted against both the accused. Ultimately they were charged under Section 420/34 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined Faqir Singh (PW1), Kanta Rani (PW2), HC Sham Singh (PW3), Baldev Singh (PW4) and ASI Gurmukh Singh (PW5). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. However, no evidence was led in defence. The trial ended in conviction. The appeal preferred by them also failed. Arguments heard. Record perused. Learned counsel for the petitioners has sought this court to re- examine and re-appreciate the evidence stating that the evidence is lacking to prove if there was any undertaking on the part of the accused to send the boys abroad or that the accused had received a sum of Rs.12 lacs. No witness much less receipt with regard to receiving of amount has been produced. It was further contended that there is delay in lodging the FIR and they have been involved in the false case due to the village rivalry. Having pondered over the contentions, the same lack merit. A reference to the statement of Baldev Singh (PW4) reveals that since both Faqir Singh and Jugal Kishore were anxious to send their sons to abroad and they had paid the money to both the accused and both the accused had assured for sending their sons abroad, but they were not sent. No doubt Baldev Singh (PW4) has admitted that sons of Faqir Singh and Jugal Kishore are already in the foreign country yet, this piece of evidence does not exonerate the accused from the commission of the crime. The accused Criminal Revision No.819 of 2000 -3- *** were handed over money on 8.9.1995. Faqir Singh (PW1) has categorically stated that he had paid Rs.6 lacs on 8.9.1995. Similarly, Jugal Kishore also parted with the amount on the same day in their presence. Their testimonies stand supported by Kanta Rani (PW2) that boys were not sent abroad. However, if they had gone abroad at their own level some time after, in the year 1998 before the statement of Baldev Singh was recorded, then the offence of cheating is not vanished. As regards the chain of evidence which goes to prove the offence is that passport of Surinder Kumar Ex.PE was got recovered by the accused Balbir Singh pursuant to his disclosure statement Ex.PB from his residential premises. Passport was taken into possession vide recovery memo Ex.PC/1. As regards the source of money collected by Faqir Sigh for payment to the accused, the prosecution has proved two sale deed Ex.P1 dated 5.5.1995 executed by Faqir Singh for which he took Rs.1.90 lacs; another agreement to sell dated 5.9.1995 Ex.P2 executed by him vide which he received a sum of Rs.2 lacs and another agreement dated 5.5.1995 Ex.P3 vide which Kanta Rani received a sum of Rs.1.20 lacs as an earnest money. Baldev Singh Municipal Commissioner an independent and respectable witness has supported this fact. There is nothing on the record to establish that the accused ever returned the amount received by them from Faqir Singh and Jugal Kishore. As regards the delay in lodging the FIR, the amount was paid on 8.9.1995. Thereafter, the complainant and Jugal Kishore waited for some time so that their dreams for sending their sons abroad turn into reality, however, when they failed in their efforts and also when they were not returned the amount, the FIR was lodged on 23.11.1996. Thus, the delay, if any, stands duly explained. As regards the issuance of the receipt by the accused, with regard to receipt of the amount, it is observed that such payments are made on mutual trust. It was the trust which the complainant party reposed in the accused and on breach thereof, the cause of action arose. Actually, the petitioners were not the travel agents or professionals, as such they believed the representation made by both the accused. The accused being their co- Criminal Revision No.819 of 2000 -4- *** villagers could not be doubted at that stage. As such, the question of issuing the receipt with regard to receiving of Rs.12 lacs did not arise. Even otherwise, there are concurrent findings of both the courts below regarding the guilt of the accused. The trial court as well as the first appellate court have dealt with the issue very elaborately. No illegality much less irregularity or perversity has been detected warranting interference by this Court. Resultantly, finding no merit in the appeal the same is dismissed. May 13, 2010 (A.N. Jindal) deepak Judge