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2013 DIGILAW 734 (PNJ)

Kaushalya Devi v. State of Punjab

2013-05-29

Naresh Kumar Sanghi

body2013
JUDGMENT Mr. Naresh Kumar Sanghi, J.:- Challenge in this Criminal Revision Petition is to the judgment dated 02.11.2012 passed by the learned Additional Sessions Judge, Hoshiarpur, whereby the appeal filed by the petitioner challenging her conviction and sentence for the offence punishable under Section 420, IPC, awarded by the learned Judicial Magistrate Ist Class, Dasuya, was dismissed. 2. When the present Criminal Revision Petition came up for preliminary hearing before this Court, at that time, the learned counsel for the petitioner opted not to challenge the conviction of the petitioner, however, he submitted that the sentence awarded was on higher side, therefore, notice of motion was issued for hearing on the quantum of sentence only. 3. After appearance of the respondent-State, learned counsel for the parties submitted that the present petition be disposed of at this stage. To impart justice and to satisfy the conscience of this court, the material available on record has been re-appraised. 4. Brief facts of the case are that complainant Daljit Singh presented an application before the Senior Superintendent of Police, Hoshiarpur, alleging that Surinder Kaur wife of Swaran Singh had introduced him with Bodh Raj, an agent, for sending his (complainant) son, Harkamal, to England after charging Rs.9,00,000/-. The agent demanded Rs.4,50,000/- which were paid in two instalments and thereafter he assured that the son of the complainant would be sent abroad within 15 days. The son of the complainant was called to Delhi and after keeping him there for a week, he was sent back to his village. Once again, the son of the complainant was called to Delhi and again kept there for a weak. The accused persons forged a visa. They neither sent the son of the complainant to abroad nor returned the amount of Rs.4,50,000/- even after expiry of the period of six months. Panchayat intervened and thereafter, a cheque worth Rs.1,00,000/- drawn to HDFC Bank, Kapurthala, was handed over to the complainant but on inquiry, it was found that the Bank account relating to that cheque had already been closed. The accused persons lingered the matter on one pretext or the other and ultimately refused to return the money received by them. 5. On the basis of the complaint, the impugned FIR was registered. During investigation, accused Bodh Raj and Varinder Singh were declared proclaimed offenders whereas Kaushalya Devi and Surinder Kaur were arrested. The accused persons lingered the matter on one pretext or the other and ultimately refused to return the money received by them. 5. On the basis of the complaint, the impugned FIR was registered. During investigation, accused Bodh Raj and Varinder Singh were declared proclaimed offenders whereas Kaushalya Devi and Surinder Kaur were arrested. After completion of the investigation, the charge sheet under Section 173, Cr.P.C. was presented before the learned Area Judicial Magistrate for the prosecution of the petitioner as well as Surinder Kaur. 6. The petitioner and her co-accused, Surinder Kaur, were charge-sheeted for the offence punishable under Section 420, IPC. In order to substantiate its allegations, the prosecution examined the following witnesses:- PW1 Dajit Singh (complainant); PW2 Bhupinder Singh; PW 3 Mela Singh Sub Inspector; PW4 Naresh Kumar; PW5 Dilbagh Singh; PW6 Kkuldeep Kaur; PW7 Rajinder Singh; PW8 Kali Ram and PW9 Narinder Singh and, thereafter, prosecution evidence was closed by order of the court. 7. On closure of the prosecution evidence, the accused when examined under Section 313, Cr.P.C. and confronted with the incriminating evidence which had come against them, denied the same and pleaded their false implication. In their defence evidence, the accused did not examine any witness except tendering some documents. 8. On conclusion of the trial, the learned trial court acquitted the co-accused, Surinder Kaur, but held the petitioner guilty for the offence punishable under Section 420, IPC, and ordered her to undergo rigorous imprisonment for one year besides the payment of fine of Rs.2,000/- and in default thereof to undergo further simple imprisonment for 15 days. 9. Aggrieved by the judgment of conviction and sentence, the petitioner filed the appeal and that too was dismissed by the learned Additional Sessions Judge, Hoshiarpur, vide judgment dated 02.11.2012. Hence the present Criminal Revision Petition. 10. PW-1 Daljit Singh (complainant) supported the prosecution case and deposed in consonance with the complaint lodged by him. PW2- Bhupinder Singh deposed that Bodh Raj, the husband of the petitioner, had executed an agreement (Ex.PB) dated 05.04.2005 vide which he had agreed to return the amount charged from the complainant. He had deposed that the complainant Daljit Singh had handed over the money to Bodh Raj, his son and his wife (petitioner) on their demand but they did not send the son, of the complainant abroad nor the amount was returned. He had deposed that the complainant Daljit Singh had handed over the money to Bodh Raj, his son and his wife (petitioner) on their demand but they did not send the son, of the complainant abroad nor the amount was returned. PW3- Mela Singh, Sub Inspector, had registered the FIR and partly investigated the case. PW4- Naresh Kumar Clerk of the Bank deposed that Kuldeep Kaur had withdrawn Rs.87000/- on 19.01.2005. PW5- Dilbagh Singh deposed that the complainant narrated to him about the assurance given by Bodh Raj for sending his (complainant ) son to abroad. He further deposed that the amount was paid to the petitioner, her husband and their son in his presence. PW6-Kuldeep Kaur stated that on demand she had paid a sum of Rs.87000/- to her father, Daljit Singh, for further handing over the same to petitioner Surinder Kaur for sending her brother, Harkamal, to England. PW-7 Rajinder Singh also deposed about the handing over of the money in his presence. PW-9 Narinder Singh had produced the records showing that complainant Daljit Singh had obtained a loan of Rs.1,44,000/- on 20.10.2004 and of Rs.1,50,000/- on 27.11.2004. 11. From the above overwhelming evidence, it is very much clear that with an intention to commit cheating with the complainant, the petitioner with the aid of her husband and son charged the money from the complainant on the pretext of sending Harkamal to abroad. Both the courts below had rightly held the petitioner guilty for the offence punishable under Section 420, IPC, and, therefore, the counsel for the petitioner has rightly proposed not to challenge the judgments of conviction passed by both the courts below. 12. So far as the quantum of sentence is concerned, learned counsel for the petitioner submitted that the petitioner is 60 years old widow who has faced the protracted trial and agony of appeal for a period of eight years. She was the first offender and only due to influence of her husband, she involved herself in the nefarious activities. During the pendency of the trial and appeal, she remained on bail and the said concession was not misused. During the pendency of the appeal, she lost her husband on 15.05.2012 and also lost her young son on 30.07.2012. On the strength of the above, he prayed for the release of the petitioner on probation. 13. During the pendency of the trial and appeal, she remained on bail and the said concession was not misused. During the pendency of the appeal, she lost her husband on 15.05.2012 and also lost her young son on 30.07.2012. On the strength of the above, he prayed for the release of the petitioner on probation. 13. Learned counsel for the State has opposed the prayer of the learned counsel for the petitioner to release the petitioner on probation. 14. There appears to be substance in the submissions made by the learned counsel for the petitioner with regard to the reduction of sentence. The petitioner is the first offender; she faced the agony of trial and appeal for approximately eight years; during intervening period she lost her husband and young son; and she is aged about 60 years. As per the affidavit dated 09.05.2013 of Superintendent, Women Jail, Ludhiana, the petitioner had suffered incarceration for six months and six days. The affidavit further reveals that during her incarceration, the petitioner earned the remission of 20 days. It shows that she is maintaining good behaviour in the jail. 15. Keeping in view the totality of the facts the circumstances of the case, this court is of the considered opinion that ends of justice will well meet if the term of the substantive sentence of the petitioner is reduced to the period of seven months. Ordered accordingly. However, there would be no change in the sentence of fine and default clause imposed by the learned trial court. 16. With the above modification in the order of sentence, the present Criminal Revision Petition is partly allowed. --------0.B.S.0------------ —————————