Mota Ram vs State Of Haryana

2. The facts and circumstances giving rise to this appeal are that the appellant was employed as Ward Servant in Primary Health Center, Jutawali and he used to visit Village Nohgarh where he came in contact with one Om Parkash, complainant PW.4 who had got himself registered in the Employment Exchange in 1982 and had been invited for an interview for the post of Ward Servant scheduled to be held on 19.10.1987 at Civil Hospital, Sirsa. The appellant gave the impression to Om Parkash, PW.4-complainant that he would be able to help him in selection as a Ward Servant provided he make 3 arrangement of Rs.2,000/-. Accordingly, Om Parkash complainant paid a sum of Rs.2,000/- to the appellant at Bus stand, Dabwali. After 2-4 days, the appellant represented to Om Parkash that he could not get his work done with the said amount of Rs.2,000/- and, therefore, he should arrange a further sum of Rs.4,000/-. After 4-5 days, the complainant Om Parkash paid Rs.4,000/- to the appellant at Civil Hospital, Sirsa. The complainant Om Parkash visited Civil Hospital in order to know the result of the selection and came to know that he was not selected. Thus, he contacted the appellant and asked him to return the amount paid for getting the appointment. The appellant continued prolonging the matter for 3-4 months and during this period the appellant sometimes gave Rs.100/- to Om Parkash and sometimes Rs.2,00/- and in this way he paid a sum of Rs.4700/- to him. Appellant refused to return the balance amount of Rs1300/- to the complainant. Thus, the complainant Om Parkash sent application to the Chief Minister, Haryana, through a 4 registered letter raising his grievance. During this period the appellant paid a sum of Rs.1,000/- and subsequently on 30.8.1988 the remaining balance amount of Rs.300/-. For the payment of balance amount of Rs.300/-, the appellant got a receipt executed by the complainant Om Parkash in presence of several witnesses. Though the amount had been paid, however on the complaint sent by the complainant to the Chief Minister of Haryana, investigation was started and appellant was charged under Section 5(2) of the Act and under Section 165 of the IPC.

11. So far as the issue of sentence is concerned, in view of the provisions of Section 5(2) of the Act, the minimum sentence a court could award is one year and it may extend to 7 years and a fine can also be imposed. None of the grounds submitted by learned counsel for the appellant that it was a very old case; appellant had already served about 6 months in jail; Appellant had refunded the amount taken by him from the complainant; the complainant himself had been abettor and could have been a co-accused for an offence punishable under Section 109 IPC, can be the mitigating circumstance for which the Court may reduce the sentence taking into consideration the proviso to Section 5(2) of the Act. As the 10 courts below have awarded the minimum sentence prescribed under the Act, the facts of the case do not warrant any interference with the quantum of sentence also. The appeal lacks merit and is, accordingly, dismissed.

5. Being aggrieved, the appellant preferred an appeal before the High Court which was dismissed after affirming the findings recorded by the trial court. Hence this appeal. 7

10. We do not see any infirmity in the concurrent findings recorded by the courts below and the appeal is liable to be dismissed.

May 28, 2009.

Digital Proforma

1. Case No. : Criminal Appeal No. 1329 of 2003

2. Date of decision : 28.5.2009

5. Date of C.A.V. : 21.5.2009

6. Judgment delivered Hon'ble Dr. Justice B.S. Chauhan by :

7. Nature of judgment : Non-reportable Whether reportable 13 14