Crl. Revision No. 1238 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 1238 of 2005 Date of decision: March 11, 2011 Pavittar Singh ...Petitioner Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. GN Malik, Advocate, for the petitioner. Mr. PS Bajwa, DAG, Punjab. GURDEV SINGH, J. (Oral) The complainant, Kaki (PW-1), gave written application to the SSP, Sangrur, levelling allegations against the petitioner/accused-Pavittar Singh. She narrated therein that the accused was a travel agent and dishonestly allured her to pay `1.80 lakhs for sending her son Boota Khan abroad, after arranging for a forged ticket. He sent her son, alongwith other boys, to Moscow instead of sending him to Italy. When she accompanied by her daughter Rano, who is married in the village of the accused, went to him to get back that amount, he asked them to come the next day. When they went to him the next day, he forcibly obtained her thumb impression on a pronote. She tried to approach the police but got no help. An inquiry was conducted by DSP, Mehal Kalan. During the inquiry, it was found that the accused received a sum of `3.40 lakhs from the complainant and Suleman Crl. Revision No. 1238 of 2005 2 after extending false promise of sending their sons abroad, but failed to do so and did not return their money. After the opinion of the District Attorney (Legal) was obtained, FIR was registered against the accused. During the investigation, statements of the witnesses were recorded and the copies of the relevant documents were taken into possession. The accused was arrested and after completion of the investigation, challan was put in against him before the JMIC, Barnala, who found sufficient grounds for presuming that he committed offence punishable under Section 420 IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of the accused, the prosecution examined Kaki, complainant (PW-1), Suleman (PW-2), Rahim Din (PW-3), Mamdin (PW-4), Rano (PW- 5), Tara Singh, Deed Writer (PW-6), Rakesh Kumar, Deed Writer (PW-7), Karam Chand SI (PW-8) and Pritpal Singh, DSP (PW-9). After the close of the prosecution evidence, the accused was examined by the trial court and his statement was recorded under Section 313 of Cr.P.C. 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 that he never took any such amount from the complainant. Rather, she had borrowed the amount from him regarding which he filed the suit which was decreed against her on 9.12.1996. He was called upon to enter on his defence but he did not produce any evidence in his defence. After going through the evidence, so produced and hearing Assistant Public Prosecutor for the State and the learned defence counsel for the accused, the JMIC convicted the accused for the offence under Section 420 IPC and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of `2500/- and in Crl. Revision No. 1238 of 2005 3 default thereof, to further undergo rigorous imprisonment for a period of one month. Against that conviction and sentence, the accused preferred an appeal, in which he filed an application under Section 391 of Cr.P.C. for producing additional evidence. The same was allowed and thereafter he tendered in his defence certified copies of the judgment dated 27.7.2004 Ex. DX/1, decree sheet dated 27.7.2004 Ex. DX/2, judgment dated 27.7.2004 Ex. DX/3 and decree sheet dated 27.7.2004 Ex. DX/4. The appeal was dismissed by the Sessions Judge, Barnala, upholding the conviction and sentence of the accused. Now he has preferred the present revision against that conviction and sentence. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the petitioner/accused that the evidence produced on the record by the prosecution was not of such a standard so as to record conviction of the accused. That evidence is inherently infirm and is full of embellishment and does not inspire any confidence. Kaki-complainant (PW-1) and Suleman (PW-3), who are alleged to have given the money to the accused for sending their sons abroad, have not been able to disclose the date, month or the year in which those amounts were given and the statements made by them about the time are full of contradictions. In fact, false application was given by the complainant against the accused in order to wriggle out of her liability to pay the decreetal amount in respect of the decree, which was passed against her in the suit instituted by the accused and about which she had the full knowledge. There is enmity between the parties as father of the accused had filed the suit against Yusaf, brother of the complainant, on the basis of the pronote. There is no question of the complainant or Suleman giving any Crl. Revision No. 1238 of 2005 4 such amount to the accused for sending their sons abroad as those sons were not holding any passports and in the absence of the same there was no possibility of their sons being sent abroad. He also tried to contend that for recovery of the said amount, civil suits were filed by the complainant and Suleman, which were dismissed by the civil court and that finding of the civil court is binding upon the criminal court and that itself is a sufficient ground for acquitting the accused. On the other hand, it was submitted by the learned State counsel that the suits so filed by the complainant and Suleman were dismissed as barred by limitation and no such finding was recorded by the civil court that such amounts were not received by the accused from the complainant and Suleman. He also tried to assert that the date of the payment of amounts in question stands established from the sale deed proved on record by Rakesh Kumar, Deed Writer (PW-7). He has not been able to meet the other arguments advanced by the learned counsel for the accused. Re-appreciation and re-appraisal of the evidence, while exercising revisional jurisdiction, is permissible only in case the conclusion is arrived at that the findings recorded by the trial court or the appellate court are perverse or illegal or based on misreading of evidence. It is a case where re-appraisal of the evidence produced by the prosecution makes it clear that the findings of conviction so recorded by the trial court and upheld by the appellate court are perverse and the same could not have been recorded on the basis of the evidence so produced by the prosecution; which is full of infirmities, contradictions and embellishment. A perusal of the statement of Kaki-complainant (PW-1) and her daughter Rano (PW-5), Crl. Revision No. 1238 of 2005 5 makes it very much clear that neither the son of that complainant nor the son of Suleman were having any such passports on the date the amount is alleged to have been paid to the accused as travel agent. It is highly improbable that they would have parted with such a huge amount knowing fully well that their sons cannot be sent abroad in the absence of any valid passport. Neither these witnesses nor Rahim Din (PW-3) and Mamdin (PW- 4) have been able to pin-point the date or time when the alleged amount was paid to the accused. It was stated by Kaki (PW-1) that this amount was paid by her to the accused about four years back. Her statement was recorded on 12.3.1998. During her cross-examination, she stated that this amount was given somewhere near Lohri festival. Thus, according to her, this amount was given to the accused some where in the month of January, 1994. A perusal of her application given to the police itself shows that, according to her, that amount was given more than two years before the giving of that application. That application was given on 17.5.1995 and thus, as per the contentions made in that application, that amount was given to the accused before 17.5.1993. The evidence produced by the prosecution is also contradictory as to whether the complainant and Suleman had come to know about the accused being a travel agent after they visited Rano in the village of her in-law or Rano had come to them and disclosed that fact and thereafter they had gone to the accused. Both of them have deposed that when they went to meet Rano they were disclosed that there was a travel agent, but Rano came out with a different version by deposing that she had come to these witnesses and disclosed them about that travel agent and thereafter they had come to him. All these witnesses have also made contradictory statements Crl. Revision No. 1238 of 2005 6 about the manner in which these amounts were raised by them. Kaki (PW-1) stated during her examination-in-chief that she had raised that amount by mortgaging her own house. She changed her version during her cross- examination and tried to make a statement that she had borrowed `20,000/- from Dr. Sukhdev Singh and the remaining amount of `1.20 lakhs was raised by mortgaging the house. Regarding those facts, she stands contradicted by Rano (PW-5), as according to her, `20,000/- was obtained from Dr. Sukhdev Singh, `60,000/- was obtained from Gurmail Singh, ` 20,000/- was obtained from Asraf, `10,000/- was raised from a person, resident of Chhapar and `20,000/- was obtained from Mamdin and all those amounts were borrowed on the payment of interest. According to her, those amounts were not returned to those persons and they had not filed suit against them. Had those amounts been borrowed, those persons must have filed suits for recovery of those amounts, as those amounts were not given by way of charity. Learned State counsel has tried to place reliance on the document termed as sale deed PW6/A, which was scribed by Rakesh Kumar Deed Writer (PW-7). In fact, it was only an agreement to sell, which was executed by one Yussi. No evidence has been produced by the complainant as to how she is related to that Yussi. It is pertinent to note that in her application so given before the SSP, she narrated that the persons from whom the amount was obtained by mortgaging the house are pressing that either they should return the borrowed amount or should vacate the house. It is mentioned in the said agreement that possession was delivered to the prospective vendee. If that was so, then where was the question of those persons pressing the complainant to vacate the house. The complainant had a motive to present a false application Crl. Revision No. 1238 of 2005 7 against the accused, who had filed a suit against her for the recovery of ` 37812/- on the basis of the pronote dated 10.4.1994, which was decreed against her. It is not a case where the complainant had no knowledge about the pendency of the suit or the decreeing thereof against her. It was stated by her during her cross-examination that she had the knowledge that the said suit was pending and the same was decreed. She has gone to the extent by deposing that no appeal has been filed against that judgment and decree. Similarly, it was admitted by her during her cross-examination that the suit was filed against her brother Yusaf by Nahar Singh, father of the accused. These facts have to be kept in view, while scrutinizing her statement and the statements of the other prosecution witnesses. Those facts cannot be said to be a false as it was admitted by the complainant, during her cross- examination, that her brother had not returned the amount to Nahar Singh which was borrowed by him on the basis of the pronote and the suit was filed for the recovery thereof. Kaki-complainant and other witnesses examined by the prosecution have tried to make their statements that sum of `1.60 lakhs was given by Suleman to the accused on the same date on which a sum of `1.80 lakhs was given by the complainant to the accused. Had that been the position, the complainant must have stated so in the application so moved by her before the police. It appears that in order to give more weight to the allegations, so made in the application, the other story that Suleman had also given a sum of `1.60 lakhs for sending his son to abroad has been concocted. The complainant and Suleman have tried to maintain that sum of `1.60 lakhs was given by Suleman, but according to Rahim Din (PW-3), it was `2.60 lakhs which was so given by Suleman to the accused and Crl. Revision No. 1238 of 2005 8 Mamdin (PW-4) came out with a different version that Suleman had given `2.80 lakhs to the accused. All these contradictions assume importance, in view of the fact that there was civil litigation between the complainant and her brother on one side and the accused and his father on the other side. In order to wriggle out of her liability to pay the amount so borrowed on the basis of the pronote, the complainant gave a false application against the accused and subsequently joined Suleman, who is closely related to her, with her, by concocting another story of payment of `1.60 lakhs to the accused by that Suleman. The conviction of the accused could not have been recorded on the basis of such like evidence. The findings so recorded by the trial court and upheld by the appellate court are perverse and illegal. In the result, the revision is accepted. The conviction and sentence of the accused is hereby set aside and he is acquitted of the offence. The fine, if already deposited, be refunded to him. Records of the trial court be returned forthwith. March 11, 2011 (GURDEV SINGH ) prem JUDGE