Crl. Revision No. 1228 of 2005 ::1:: In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1228 of 2005 (O&M) Date of Decision: April 05, 2011 Santokh Kaur ---Petitioner versus State of Punjab ---Respondent Coram: HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr.R.S.Athwal, Advocate, for the petitioner Mr. P.S.Paul, Deputy Advocate General, Punjab *** GURDEV SINGH, J. This revision is directed against the conviction and sentence of the petitioner-accused, Santokh Kaur, recorded by the Judicial Magistrate Ist Class, Jalandhar, vide judgment dated 5.9.2003 and upheld in appeal by Additional Sessions Judge, Jalandhar, vide judgment dated 20.5.2005. She was convicted for the offences under Sections 420 and 120-B IPC and was sentenced as under:- Sr.No. Under Section Sentence imposed Fine 1 120-B IPC To undergo rigorous imprisonment for six months - 2 420 IPC To undergo rigorous imprisonment for one year ` 500/- In default of payment of fine to undergo rigorous imprisonment for 15 days. The facts, in brief, are that Gurdial Singh, complainant, PW-3, and Charanjit Singh, PW-4, had been running the shops in village Behram Shahrishta and were interested in going abroad, for which they had a talk with Satpal Singh @ Fauji @ Bagga, accused. That accused told them that some Crl. Revision No. 1228 of 2005 ::2:: visas for Malaysia were available and for sending them to that country, he demanded ` 68,000/- from each of them and asked them to arrange for that amount at some early date. After arranging for that amount, they went to the house of that accused on 16.3.1996, where he was found present along with the present petitioner-accused, who is his wife. Before handing of the amount, they asked both the accused not to cheat them and it was assured by the petitioner-accused that they never cheated any person and they were not going to be cheated being their family members. On that assurance of the accused, they gave ` 68000/- each and their passports to Satpal Singh, in the presence of Babbu and Laddu. Both the accused after counting the currency notes, kept that amount with them. In the meanwhile, Harmesh Lal also came to that place and gave his passport and ` 68000/- to Satpal Singh, who assured to send all of them to Malaysia in few days. After arranging for the air tickets, Satpal Singh made them to board the aeroplane and they were sent to Thailand with one Satish Kumar son of Sh. Dev Raj, who collected ` 700/- each in the form of dollars, from them. Thereafter, he never met them in Thailand. After spending few days in agony in that country, they came back. They demanded back their amount from the accused, but he refused to return the same. About all these facts, the complainant made his statement, EX. P.1, before Shingara Singh, ASI, on 21.10.1997, who after recording his police proceedings, EX. P.2, upon the same, sent that to the police station and on the basis thereof, FIR, Ex. P.1, was recorded against the accused under Sections 406, 420 and 120-B IPC. During the investigation, the ASI recorded the statements of the witnesses under Section 161 Cr.P.C. The petitioner-accused was arrested. Satpal Singh- accused, could not be arrested in spite of issuance of warrants of arrest against him and ultimately proclamation was published against him under Section 82 Cr.P.C. In spite of the publication of that proclamation, he did not appear Crl. Revision No. 1228 of 2005 ::3:: before the Court and was declared as Proclaimed Offender, vide order dated 10.10.1998. After the completion of the investigation, challan was put in before JMIC, who found sufficient grounds for presuming that the petitioner- accused committed offences punishable under Sections 120-B and 420 IPC. She was charged accordingly, to which she pleaded not guilty and claimed trial. To prove her guilt, prosecution examined Faqir Chand, PW-1, Kulwant Singh ASI, PW-2, Gurdial Singh, complainant, PW-3, Charanjit Singh, PW-4, Sukhwinder Singh, PW-5, Mohinder Singh, PW-6, Narinder Pal Singh, PW-7, Galen Singh ASI, PW-8 and Dhani Ram, PW-9. After the close of the prosecution evidence, the accused was examined and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against her in the prosecution evidence were put to her in order to enable her to explain the same. She denied all those circumstances and pleaded that no such money was received by her nor any such money was received by her husband in her presence. Her husband is missing since long. She was called upon to enter on her defence but she did not produce any evidence in her defence. I have heard learned counsel for both the sides. It has been submitted by counsel for the accused that no such evidence was produced by the prosecution that any such money was received by the present accused. In fact that money was received by her husband and it was stated so by the complainant and other witnesses before the police and this accused was falsely involved by taking resort to Section 120-B IPC, but during the trial, the prosecution produced evidence against her as if she was the main accused. No such deception was practiced by the accused upon the complainant and others and if there was any deceiving of those persons, the same was by her husband and she could not have been made liable for the acts Crl. Revision No. 1228 of 2005 ::4:: of her husband. He prayed for her acquittal and in the alternative for the grant of benefit of probation on the ground that she is a woman and is not a previous convict. It was specifically stated by Gurdial Singh, complainant, PW-3, in the Court, that on 16.3.1996, he accompanied by Charanjit Singh, PW-4, had gone to the house of Satpal Singh, where he and his wife met them and they were told that they were not indulging in cheating and it was only thereafter that they had given ` 68,000/- each and their passports to both the accused. He also stated that in the meanwhile, Harmesh Lal came to that place, who also gave ` 68, 000/- and his passport to both the accused. The statement of this complainant was corroborated by Charanjit Singh, PW-4. For further inspiring confidence in the statements of these witnesses, the prosecution examined the persons from whom the complainant and Charanjit Singh had collected the said amount, which was so given to the accused. In view of that evidence, I do not find any merit in the submission made by counsel for the petitioner-accused that she has been made the main accused in place of her husband, who had absconded. But the question arises whether this petitioner- accused also cheated Gurdial Singh, complainant, PW-3, Charanjit Singh, PW- 4 or Harmesh Lal. No such statements were made by Gurdial Singh, PW-3 and Charanjit Singh, PW-4, in the Court. According to them, they were deceived by Satpal Singh. No doubt, according to them, the amount and the passports were received by both the accused and at that time it was represented by them that they do not cheat any person but that will not amount to the exercise of deception by the petitioner-accused. Therefore, it cannot be held that the petitioner-accused cheated the complainant and others and thereby dishonestly induced them to deliver the said amounts. In these circumstances, she could not have been convicted for the offence under Section 420 IPC. She is, Crl. Revision No. 1228 of 2005 ::5:: therefore, acquitted of that offence. The findings recorded by the trial court and upheld by the appellate court that the petitioner-accused committed the offence of criminal conspiracy cannot be said to be perverse or illegal or the result of misreading of the evidence. The amounts and the passports were received by her along with her husband and she had remarked at that time that they do not cheat any person. It can easily be inferred from that evidence that there was an agreement between the accused to commit an illegal act. The ingredients of the offence under Section 120-B IPC stand proved on the record. There is no ground for setting aside the conviction and sentence of the petitioner-accused under Section 120-B IPC, and the same is hereby upheld. The petitioner-accused is stated to be a house hold woman having the responsibility of looking after her children At no stage the prosecution came out with the contention that she is previous convict. Keeping in view all these facts, I think it proper and expedient to release her on probation. Accordingly the sentence so imposed upon her under Section 120-B IPC is set aside and she is ordered to be released on probation under Section 360 Cr.P.C. on her executing personal bond in the sum of ` 10, 000/- with a surety in the like amount for the period of two years, to appear and receive the sentence as and when called upon to do so during that period and to keep peace and be of good behaviour in the meanwhile. The fine, so imposed upon her and, if already deposited, shall be treated as the costs of the prosecution. Revision stands disposed of accordingly. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE April 05, 2011 PARAMJIT