Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1384 (RAJ)

Salim v. State of Rajasthan

2018-06-01

P.K.LOHRA

body2018
JUDGMENT AND ORDER : P.K. Lohra, J. 1. Accused-Petitioner has preferred this revision petition under Section 397/401 Cr.P.C. to assail impugned judgment dated 10th of July, 2017, passed by Additional Sessions Judge No. 5, Jodhpur Metropolitan, Jodhpur (for short ‘learned appellate Court’) qua him, whereby the learned appellate Court has partly allowed his appeal to alter judgment dated 28th of July, 2016, passed by Additional Chief Metropolitan Magistrate (C.B.I. Cases), Jodhpur Metropolitan (for short ‘learned trial Court’). The learned trial Court, upon conclusion of the trial, convicted petitioner for offence under Sections 420/120-B, 467, 468 and 471 IPC and two others, viz. Jitendra Bansal and Gafoor, for offence under Section 420/120-B IPC. 2. Feeling aggrieved, the petitioner as well as Jitendra Bansal and Gafoor preferred three separate appeals before learned appellate Court. The learned appellate Court allowed appeals of Jitendra Bansal and Gafoor facilitating their acquittal for offence under Section 420/120-B IPC by extending benefit of doubt. The appeal filed by petitioner was also partly allowed by the learned appellate Court resulting in annulment of his conviction under Sections 467 and 468 IPC while maintaining conviction for offence under Sections 420/120-B and 471 IPC. The learned appellate Court also maintained the sentences awarded to the petitioner by the learned trial Court qua these offences. 3. In brief, facts of the case are that on 13.04.2012, complainant, Jagdish Singh Panwar, submitted a criminal complaint before Additional Chief Judicial Magistrate No. 2, Jodhpur Metropolitan, alleging, inter-alia, that accused-persons Jitendra Bansal, Ramesh, Gafoor along with the present petitioner came to him on 20.03.2012 and introduced petitioner- Salim as property dealer. The accused persons also apprised the complainant that petitioner wants to sell Plot No. C-49, situated at Aradhana Nagar in Khasra No. 379 of Village Pal, District Jodhpur. On inquiry, as per complainant, accused-petitioner showed him Power of Attorney, Sale-Agreement and Patta issued in the name of one Shanti Devi W/o Dhala Ram. Relying on their version and documents presented before him, complainant agreed to purchase said plot from petitioner for consideration amount of Rs. 4,20,000/- and immediately paid the amount to him in presence of Ummed Singh and Dhirendra Singh. Relying on their version and documents presented before him, complainant agreed to purchase said plot from petitioner for consideration amount of Rs. 4,20,000/- and immediately paid the amount to him in presence of Ummed Singh and Dhirendra Singh. The complaint further unfurls that on 27.03.2017, he received a notice from petitioner informing him that the said Patta is forged and fabricated, and therefore, he (petitioner) is ready and willing to refund a sum of Rs.1, 00, 000/-, which he had received as commission. After receipt of the said information, the complainant inquired about said Patta from JDA as well as Registry Office and came to know that no such Patta was ever issued or registered. 4. The learned Magistrate sent the complaint for investigation to Police Station Pratap Nagar by resorting to sub-section (3) of Section 156 Cr.P.C. and thereupon FIR bearing No. 219/12 against accused persons was registered for offences punishable under Sections 420, 467, 468, 471, 120-B IPC. Upon completion of investigation, police filed charge-sheet against petitioner Salim and other co-accused, viz. Gafoor, Jitendra Bansal and Shivshankar, for offence under Sections 420, 467, 468, 471, 120B IPC and against Praveen Ram Deo for offence under Sections 420, 467, 468, 471, 472 and 120B IPC. The learned trial Court then proceeded to take cognizance of the aforesaid offences against the accused persons. Subsequently, charges were framed against petitioner and other accused persons for the offences and on their denial, they were put on trial. 5. In order to prove charge against accused persons, prosecution examined 17 witnesses and exhibited 42 documents. 6. Subsequently, statements of accused persons were recorded under Section 313 Cr.P.C. Learned trial Court, then, proceeded to hear final arguments and after appreciation of evidence and material available on record, by its verdict dated 28.07.2016, convicted the petitioner for aforesaid offences and other co-accused Gafoor and Jitendra for offence under Section 420/120-B IPC but acquitted Shiv Shankar and Praveen Ramdev of the charged offences. 7. Feeling dismayed with the verdict of learned trial Court, petitioner approached learned appellate Court. The learned appellate Court made sincere endeavour to appreciate evidence available on record and after scrutinizing the entire evidence and other materials available on record, acquitted the petitioner of the offence under Sections 467 and 468 IPC by giving benefit of doubt, however, upheld his conviction under Sections 420/120-B and 471 IPC. The learned appellate Court made sincere endeavour to appreciate evidence available on record and after scrutinizing the entire evidence and other materials available on record, acquitted the petitioner of the offence under Sections 467 and 468 IPC by giving benefit of doubt, however, upheld his conviction under Sections 420/120-B and 471 IPC. The appellate Court also directed the petitioner to deposit fine amount of Rs. 30,000/- with the learned trial Court and ordered to pay Rs. 25,000/- out of said amount to complainant as compensation. It is, in that background, petitioner has invoked revisional jurisdiction of this Court. 8. Mr. Yunus, authorized representative of the petitioner, at the outset, does not challenge his conviction but has urged that keeping in view the fact that petitioner Salim S/o Ehsan Khan has already suffered sentence of more than one year and seven months out of the total maximum sentence of two years, therefore, taking into account the peculiar facts of the case, substantive sentence awarded to the accused-petitioner be reduced to one and half years, which he has already undergone, and additional period of sentence be adjusted for default punishment qua offence under Section 420/120-B IPC. Mr. Yunus has further submitted that looking to the penury condition of the petitioner, the fine imposed by learned trial Court and affirmed by appellate Court vis-a-vis offence under Section 471 IPC may be waived. For authenticating prayer in this behalf, Mr. Yunus has also urged that offence under Section 471 IPC punishable with maximum sentence of two years or with fine or with both, obviously, confers jurisdiction on the appellate Court to waive fine with adequate substantive sentence. 9. Per contra, learned Public Prosecutor has vehemently opposed the prayer of petitioner. Learned Public Prosecutor has urged that both the Courts below have recorded finding of guilt against accused-petitioner, and therefore, it is not desirable to reduce the sentence awarded to him. 10. I have heard petitioner's authorized representative, perused the impugned judgments and thoroughly scanned the entire record. 11. The core issue, which requires judicial scrutiny in this revision petition, lies in narrow compass inasmuch as authorized representative of the petitioner has abandoned challenge to his indictment and conviction for offences under Sections 420/120B and 471 IPC. 10. I have heard petitioner's authorized representative, perused the impugned judgments and thoroughly scanned the entire record. 11. The core issue, which requires judicial scrutiny in this revision petition, lies in narrow compass inasmuch as authorized representative of the petitioner has abandoned challenge to his indictment and conviction for offences under Sections 420/120B and 471 IPC. Now, the only question which requires consideration is the quantum of sentence handed down to the petitioner by the learned trial Court and confirmed by the learned appellate Court in the light of sentence so far suffered by him out of the maximum sentence awarded. In my considered opinion, in the peculiar facts and circumstances of the case when the petitioner has already suffered major part of substantive sentence awarded to him, the ends of justice would be served by reducing the sentence to one and half years for both the offences, which the petitioner had already undergone and remaining 43 days' sentence suffered by him for default of payment of fine qua offence under Section 420/120-B IPC. However, sentence awarded to the petitioner for default of payment of fine vis-a-vis offence under Section 471 IPC is waived looking to the penury condition of the petitioner. 12. The revision petition, thus, deserves to be and is hereby allowed in part. Accordingly, while maintaining the conviction of petitioner for offence under Sections 420/120-B and 471 IPC, as upheld by appellate court, the substantive sentence awarded to the petitioner for offence under these sections is reduced to 1 years, which he has already undergone, and remaining period of sentence of 43 days is treated as sentence in default of payment of fine for offence under Section 420/120-B IPC. The sentence awarded to the petitioner in respect of offence under Section 471 IPC in default of payment of fine is hereby waived. 13. The acceptance of revision petition in part by reducing the substantive sentence for offence under Section 420/120-B IPC upto 1 years and treating 43 days' additional imprisonment of the petitioner as sentence in default of payment of fine vis-a-vis that offence, coupled with waiver of fine for offence under Section 471 IPC, obviously, entails annulment of the direction issued by learned appellate Court against petitioner for deposition of Rs. 30,000/-. 14. The petitioner is in jail, therefore, he may be released forthwith if not wanted in any other case.