SURENDER Kl\-IAR GARG

STATE OF UTTAR PRADESH

MAY 14, 1993

[DR. A.S. ANAND AND N.P. SINGH, JJ.]

Indian Penal Code-Sections .+19, 420, .+68 and 471-0.ffence 11nder-Red11ction of sentence upon repayment of amount.

The appellant was charged with cheating the U.P. Industrial Corporation of Rs. 39,352.50 by registering a take concern, and taking in its name.

Three courts concurrent!)' found the charges against him established.

On the question of sentence, it was contended that more than 20 )'Cars had elapsed; the amount imohcd was not excessive and other mitigating circumstances were placed on the record.

Partly allowing the appeal, this Court

HELD : 1. The appellant had deposited Rs. 40,000/- (the loan amount) as directed. (901-G)

2. In the peculiar fact'i and circumstances of the c;; ase, conviction maintained but sentence of imprisonment reduced to the period alread)' undergone, and a fine of Rs. 2,000/-, or one month R.I. in lieu thereof.

(902-B)

CRTh11NAL APPELLATE JURISDICTION : Criminal Appeal No. 830 ur 1985.

From the Judgment and Order dated 30.7.85 of the Allahabad High Court in Crl. Revision No. 1937 of 1983.

M.S. Gujral. A.K. Srivastava and Serva Mitter for the Appellant.

R.C. Vem1a and A.S. Pundit.for the Respondent.

The Judgment of the Court was delivered by ' 900

S. KUMAR, .. STA TE OF lJTfAR PRADESH [N.P. SINGH. J) 901

N.P. SINGH . .J. The appellant, was convicted under Sections 120-B, 419, A 420, 468, and 471 of the Penal Code. He was sentenced to undergo rigorous imprisonments for different periods under the aforesaid Sections. The appeal filed on behalf of the appellant was dis.missed by the learned Additional Sessions Judge, Ghaziabad. The High Court, on revision application being filed on behalf of the appellant set-aside his conviction under Section 120-B. but the conviction and sentence under other Sections mentioned above passed by the Trial Court were B affirmed.

According to the prosecution case, the appellant, established a firm by the name of Seemak Industrial Corporat)on . at Ghaziabad. The account in the bank was opened in the name of bne Vijai Kumar and the aforesaid Industrial Corporation was registered in the Sales Tax Department. The appellant applied for loan before the U.P. Small Industries Corporation and got a sum of Rs. 39,352.50, in the name of Seemak Industrial Corporation. Later it was discovered that the aforesaid Seemak Industrial Corporation. was a fake concern and the appellant had cheated, even the U.P. Small Industries Corporation, in respect of the amount advanced by them. The Trial Court, the Appellate Court as well as the High Court have gone into details of the materials on record for purpose of holding that the charges framed against the appellant had been established and as such there was no occasion to interfere with the conviction and sentence passed against him.

So far the present appeal is concerned, leave was granted as early as in the year 1985 by this Court, but it has been listed for hearing after about 8 years. The learned Counsel, appearing for the appellant, after some arguments on merit confined his submissions to the question of sentence only. He pointed out that offences aforesaid had been committed by the appellant, as early as in the year 1973, more than 20 years from nl)W and as such a compassionate view should be taken of the whole matter especially when the amount in respect of which the offences are alleged to have been committed is not excessive. He pointed out that the appellant has remained in jail for some time, in pursuance of the order of conviction and sentence and as such he need not be sent to jail again. An affidavit detailing the mitigating circumstances has also been filed by the appellant befare us. Taking all facts and circumstances into consideration, by our Order dated 26th April, 1993 we directed the appellant to first deposit an amount of Rs. 40,000 (the loan amount) with the U.P. Small Industries Corporation Ltd. Pursuant to that Order Rs. 40.000 has been deposited with the U.P. Small Industries Corporation

Ltd., on 4-5-1993 and original receipt granted by the Manager of the said Corporation was produced before us. The zerox copy of the said original receipt

has been kept on record and the original returned to the learned counsel for the appellant. An aflidavit has also been filed on behalf or the appellant stating about H

SUPRE~JE COURT REPORTS

(1993) 3 S.C.R.

the aforesaid deposit.

In the peculiar facts and circumstances of the case while maintaining the conviction of the appellant, we reduce the sentence of imprisonment under different Sections mentioned above to the period already undergone by him. The appellant. shall hl)Wen:r. pay a fine of Rs. 2,000 and in default of payment thereof, B he shall undergo rigorous imprisonment for a period of one month. The appeal is

allowed in part. ·

The deposit of Rs. 40,000 made by the appellant with the U.P. Small Industries Corporation Ltd., shall be adjusted towards the amount advanced by the said Corporathm to the appellant. The Corporation shall of course he at liberty to take steps for realisation of any further sum. which may he due. against the appellant.

U.R.

Appeal partly allowed.


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