Crl. Rev. No.553 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Rev. No.553 of 2009 Date of decision: 30.5.2009 Jasbir Singh ….. Petitioner Versus State of Punjab ….. Respondent Present: Mr. N.S. Sodhi, Advocate for the petitioner. Mr. Sudhir Nehra, Addl. A.G., Punjab. **** S.S. SARON, J. This revision petition has been filed against the order dated 16.2.2009 passed by the learned Sessions Judge, Kapurthala, whereby the appeal of the petitioner against the judgment and order of conviction and sentence dated 15.12.2007 passed by the learned Additional Chief Judicial Magistrate, Kapurthala convicting the petitioner for the offences under Sections 420 Indian Penal Code (“IPC” – for short) and Section 24 of the Immigration Act, 1985 and sentencing him to undergo rigorous imprisonment for a period of 2 years, besides, pay a fine in the sum of Rs.1,000/- and in default thereof, to undergo rigorous imprisonment for a period of 20 days for the offence under Section 420 IPC and to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 24 Crl. Rev. No.553 of 2009 -2- of the Immigration Act with direction that the sentences shall run concurrently, has been dismissed. Balbir Singh son of Sant Singh lodged a complaint with the Senior Superintendent of Police, Kapurthala alleging that the petitioner had assured that he can send the son of the complainant to Italy. The petitioner had stated that he would receive the money after the son of the complainant reached Italy. The deal was settled for Rs.2,75,000/-. The petitioner in a clever manner took Rs.50,000/- and the passport of Parwinder Singh son of the complainant. The remaining amount was to be given to the petitioner after Visa for Parwinder Singh son of the complainant was obtained. The petitioner then took an amount of Rs.1,50,000/- from the complainant on 24.6.1998 in the presence of Buta Singh son of Karam Singh and Makhan Singh son of Piara Singh residents of Begowal. Thereafter, the petitioner kept Parwinder Singh son of the complainant for one month without any reason. Till the filing of the complaint neither the son of the complainant was sent abroad nor he returned the money to the complainant. Rather the petitioner held out threats that he had no fear of anyone and nothing could be done to him. When other persons came to know about the said facts they asked the petitioner to return the money to the complainant. However, instead of returning the money, the petitioner filed a suit against the complainant. On these allegations, FIR for the offences under Sections 406, 420 and 506 IPC was registered. The investigations in the case were conducted and the petitioner was arrested. On completion of investigation, charge report (challan) was filed. The learned Chief Judicial Magistrate, Kapurthala charge-sheeted the petitioner for the offences under Sections 420 and 406 IPC. Besides, Section 24 of the Immigration Act. The prosecution in order to establish its case examined the complainant Balbir Singh (PW1), Buta Singh (PW2), Baljit Kaur (PW3), Bachan Kaur (PW4), Balwant Singh (PW5), DSP Tarlochan Singh (PW6) and Sham Singh (PW7). Besides, Crl. Rev. No.553 of 2009 -3- documents were tendered in evidence. The statement of the petitioner in terms of Section 313 of the Code of Criminal Procedure (“CrPC” – for short) was recorded and the evidence appearing against him was put to him. The petitioner denied the allegations and pleaded his false implication in the case. The learned Additional Chief Judicial Magistrate, Kapurthala vide her order dated 15.12.2007 held the petitioner guilty for the offences under Sections 420 IPC and Section 24 of the Immigration Act. Accordingly, he was convicted for the said offences. However, he was acquitted of the charge under Section 406 IPC. Accordingly, he was sentenced to rigorous imprisonment for two years, besides to pay a fine in the sum of Rs.1000/- and in default of payment of fine, to undergo further imprisonment for a period of 20 days for the offence punishable under Section 420 IPC. The petitioner was also sentenced to rigorous imprisonment for six months for the offence punishable under Section 24 of the Immigration Act. Both the sentences were ordered to run concurrently. The petitioner aggrieved against the same filed an appeal before the learned Sessions Judge, Kapurthala which has been dismissed by the impugned order dated 16.2.2009. Aggrieved against the same, the petitioner has preferred the present revision petition. Learned counsel appearing for the petitioner submitted that there is nothing to show that the amounts as have been alleged by the complainant to have been given to the petitioner is established. It is submitted that the complainant had no source of income to make arrangement for paying the same and it is merely alleged that the complainant had borrowed Rs.50,000/- from Balwant Singh and Rs.1 lac from Buta Singh. However, in cross-examination it is stated by the complainant Balbir Singh (PW1) that he had taken Rs.50,000/- from Balwant Singh and Rs.1 lac from Buta Singh. But he did not know whether in his complaint (Ex. PA) he had mentioned that he took the said amounts from Buta Singh and Balwant Singh. It is also deposed that if it is mentioned that the accused had come to his village on 24th Crl. Rev. No.553 of 2009 -4- June to take the money, it has been wrongly mentioned. Learned counsel submits that admittedly the son of the complainant at present is abroad since the last two years and the complainant is stating that the petitioner has not returned the passport of his son. A reference has also been made to the statement of Buta Singh (PW2) who has stated that he alone along with the complainant allegedly made payment to the petitioner amounting to Rs.1,50,000/-. It has also been stated by Buta Singh (PW2) that the complainant is the son of his wife sister’s husband (Saddu) and that he had not made any payment to the complainant and that if any payment has been made then it is by his son and he was only helping him being a relative. It is also submitted that there are discrepancies in the statements of Baljit Kaur (PW3) and Bachan Kaur (PW4) who are the neighbour and the wife respectively of the complainant Balbir Singh. Baljit Kaur (PW3), it is submitted, has stated that she also made payment of Rs.50,000/- to Balbir Singh for sending his son abroad through an agent. It is submitted that the money was given by Balbir Singh – complainant to an agent by calling him home but she did not recognize the agent. Bachan Kaur (PW4) states that on 13.6.1998, the accused (petitioner) came to their house and he was paid Rs.50,000/- and at that time she and her husband were present and that she does not any know any Buta Singh, whereas Baljit Kaur ( PW3) has stated that at the time of giving money there were three persons i.e. the complainant, his wife and she herself. Therefore, it is submitted that no amount was paid by the complainant to the petitioner and, if any, amount has been paid then the complainant might have directly paid it to Sucha Singh – the other agent and not to the petitioner. Besides, if the petitioner says that he knows Sucha Singh then that does not mean that the petitioner is a travel agent and deals in the work of travel agency. It is submitted that the son of the complainant had planned to go abroad in the year 1997 through travel agent Sucha Singh of Barha village District Jalandhar and an amount of Rs.2 lacs per persons was settled and one Panchi Kumar son of Karam Singh was the other persons Crl. Rev. No.553 of 2009 -5- who was to be sent abroad. Then with the assistances of Sucha Singh; Panchi Kumar, Sonu @ ParwinderSingh (son of the complainant) and Pardeep Kumar were sent to Moscow from where Sonu went to Belgium. But due to non-availability of Visa of Jasbir Singh to America, he came back from Delhi. Therefore, it is submitted that petitioner is in no manner at fault. In the alternative, it is submitted that the petitioner is retired from the Army and has led a spotless life and there is no other case against him prior to the present FIR. The petitioner is facing the heat of the litigation since 22.1.2002 for the last more than 8 years. Therefore, the sentence of imprisonment is liable to be reduced to that already undergone. In response, learned counsel appearing for the State submits that the petitioner is clearly involved in the present case. The findings of both the Courts below have clearly held that the petitioner is guilty of the offences under Sections 420 IPC and Section 24 of the Immigration Act. This Court in exercise of its revisional jurisdiction, it is submitted, is not to re-appreciate the evidence and come to a finding different from that recorded by the learned Courts below. Therefore it is submitted that the petition may be dismissed. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the parties and have gone through the records. Both the Courts below have held the petitioner to be guilty of the offences under Section 420 IPC and Section 24 of the Immigration Act. It may be noticed that Balbir Singh complainant (PW1) in his deposition in Court has reiterated the version as submitted by him in his complaint (Ex.PA). The learned trial Magistrate noticed that Balbir Singh (PW1) in his statement stated that the petitioner had induced him to deliver Rs.50,000/- out of the amount of Rs.2,75,000/- when he informed that the VISA of his son Parwinder Singh has been sanctioned. The petitioner had induced the complainant to deliver the amount when he had represented that his son Parwinder Singh would be sent to Italy and the balance amount would be received when his son Crl. Rev. No.553 of 2009 -6- reaches Italy and he makes a telephone call that he has reached there. After receiving the amount of Rs.50,000/-, the petitioner took another sum of Rs.1,50,000/- on 24.6.1998 in the presence of Buta Singh and Makhan Singh. In cross-examination Balbir Singh (PW1) admitted that his son had gone abroad through an agent of New Delhi. The learned trial Court held that there was cogent and convincing evidence and material on record to hold the delivery of Rs.50,000/- on 13.6.1998 at Begowal and Rs.1,50,000/- on 24.6.1998 was established. A reference was made to the deposition of DSP Tarlochan Singh (PW6) who in his inquiry report (Ex.P6) had clearly established this fact. The discrepancies which were raised by the learned counsel for the petitioner regarding the presence of the persons while giving the amount to the accused, it was observed that these were minor in nature as its stood proved that Balbir Singh complainant and Buta Singh had gone to give the amount to the petitioner and in this regard an inquiry was conducted by the DSP Tarlochan Singh (PW6) who gave his inquiry report (Ex.P6). It was also observed that the complainant is an illiterate person and he would not take a receipt from the person who is retired from the Army as per his own statement. Besides, there was no enmity between the complainant and the petitioner for the complainant to falsely implicate the petitioner and no suggestion of false implication was put to the prosecution witness in this regard. The petitioner in fact had admitted in the inquiry before DSP Tarlochan Singh (PW6) that he had dealings with Sucha Singh, Agent when he had gone to the Embassy to obtain Visa for America. Besides, the learned Lower Appellate Court again considered the material on record. The evidence of Balbir Singh (PW1) was considered. It was observed that the learned counsel for the petitioner could not highlight any serious ambiguity in the cross-examination of Balbir Singh (PW-1) which could be detrimental to the interest of the prosecution. Rather the complainant had clearly given out the manner in which the petitioner had induced the complainant to part with his money and played deception upon him. Crl. Rev. No.553 of 2009 -7- Buta Singh (PW2) it was observed had materially corroborated the allegations in the complaint and it was before him that an amount of Rs.1,50,000/- was paid to the accused (petitioner). The facts highlighted by the counsel for the petitioner were considered and it was observed that the fact that the complainant had admitted that no receipt was issued was of no consequence. Baljit Kaur (PW3) is a neighbour of the complainant and she was observed to be a natural witness. She had categorically stated that in her presence Balbir Singh complainant paid the money to the accused (petitioner). The contention that Baljit Kaur (PW3) had stated that the complainant and wife of the complainant were present and that this excludes the other witnesses to the fact of handing over the money, it was observed was of not much consequence. Bachan Kaur (PW4) wife of the complainant had also materially corroborated the allegations of the prosecution case. Besides, DSP Tarlochan Singh (PW6) had also corroborated the prosecution case. It was observed that the stand of the prosecution was only of denial and the offences as alleged were clearly made out. The discrepancies now raised by the learned counsel for the petitioner, therefore, indeed are not of much significance as these have been considered by the Courts below and have been held to be minor. It is to be kept in mind that the complainant is an illiterate villager and was wanting to send his son abroad. He was induced into handing over the money to the petitioner for the said purpose. The fact that the money was given for the purpose of sending the son of the complainant abroad is established on the basis of evidence on record. The discrepancies which have been raised by the learned counsel for the petitioner do occur as money was given in good faith and the memory of witnesses fade with time. One of the witness is Baljit Kaur (PW3) who is a neighbour of the complainant and the other is Bachan Kaur (PW4) who is the wife of the complainant. It may be noticed that Tarlochan Singh DSP (PW6) conducted an inquiry into the entire matter and he in his inquiry report (Ex.P6) has held that an amount of Rs.50,000/- was taken from the Crl. Rev. No.553 of 2009 -8- complainant on 13.6.1998 at Begowal and Rs.1,50,000/- on 26.4.1998 at Bholath. DSP Tarlochan Singh (PW6) had no reason to conduct a false inquiry. Besides, he was subjected to cross-examine and nothing could be brought out that the inquiry conducted by him was in any manner improper. In the facts and circumstances, this Court in exercise of its revisional jurisdiction is not to dislodge the concurrent findings and conclusions reached at by the Courts below on the basis of evidence and material on record. The revisional jurisdiction of this Court is not to be considered akin to with an appellate jurisdiction and evidence and material on record is not normally to be re-appreciated unless it is shown that it has resulted in gross miscarriage of justice. The revisional jurisdiction of this Court is supervisory in nature which is to be exercised for correcting miscarriage of justice. No such glaring feature has been brought to the notice of this Court from which it can be said that there has been gross-miscarriage of justice in the passing of the impugned orders. Therefore, the findings and conclusions reached at by the Courts in convicting the petitioner warrant no interference in exercise of the revisional jurisdiction of this Court. As regards the sentence, it may be noticed that the petitioner has pleaded that he is an Ex-Army man and except for the present case, there is no other case against him. He has been convicted for two years. It has been stated by the petitioner that out of the sentence of two years, he has undergone one year of imprisonment. As per the custody certificate dated 20.2.2009 submitted by the Superintendent District Jail, Kapurthala has undergone eight months and sixteen days of imprisonment till 20.2.2009. Therefore, as on date he has undergone about one year of imprisonment. Besides, as per the said certificate there is no other conviction or pending case against the petitioner. Keeping in view the fact that the petitioner is an Ex-Army man and he has faced the litigation since 22.1.2002 for more than eight years and no other case is Crl. Rev. No.553 of 2009 -9- pending against him as per the Custody Certificate dated 20.2.2009 submitted by the Superintendent District Jail, Kapurthala, it would be just and expedient that the sentence of imprisonment is reduced to that already undergone. Accordingly, while maintaining the order of conviction, the sentence of imprisonment for 2 years for the offence under Section 420 IPC is reduced to that already undergone. The sentence of imprisonment for six months for the offence under Section 24 of the Immigration Act is kept intact. However, the two sentences shall run concurrently. The petitioner, therefore, if not wanted in any other case, be released from custody by reducing the sentence to that already undergone. Accordingly, the Crl. Revision petition is disposed of. (S.S. SARON) JUDGE May 30, 2009 amit