Pramod Kumar Srivastava v. State Of Jharkhand

Rongon Mukhopadhyay. J. - Heard Mr. Rajesh Kumar, learned counsel for the petitioner and Mrs. Laxmi Murmu, learned A.P.P. for the State.

2. This application is directed against the judgment dated 04.02.2008 passed by the learned 6th Additional Sessions Judge, Dhanbad in Criminal Appeal No. 47/2006, whereby and whereunder the judgment and order of conviction and sentence dated 18.02.2006 passed by the learned Judicial Magistrate, Ist Class, Dhanbad, in Jorapokhar P.S. Case No. 59/98, corresponding to G.R. Case No. 1108/1998 (T.R. No. 185/2006), convicting the petitioner for the offences punishable under Sections 420 and 406 of the Indian Penal Code and sentencing him to undergo R.I. for 2 years and 1 year respectively along with a fine of Rs. 1500/- has been affirmed.

3. The prosecution story in brief is that the petitioner had induced the delivery of Rs. 7000/- from the informant on the assurance that he shall make arrangements with the authorities concerned for releasing the loan under the P.M.R.Y., Scheme. It has been alleged that after the said amount was given the petitioner started avoiding the informant and the informant later on came to know that several persons were duped by the petitioner. It has also been alleged that the informant failed to get back the amount in spite of the best efforts made by him and his father.

4. Initially a complainant case was instituted which on being sent to the Police under Section 156(3) Cr.P.C., was registered as Jorapokhar P.S. Case No. 59/98. Investigation resulted in culmination of charge-sheet and after cognizance was taken charge was framed under Sections 420, 406 and 506 of the Indian Penal Code.

5. In course of trial seven witnesses were examined on behalf of the prosecution. P.W.1 (Santosh Kumar Burnwal) is the informant who has stated that on 18.08.1997 he was in his Betel shop when the petitioner approached the informant and assured that P.M.R.Y., Loan shall be sanctioned if Rs. 7000/- is provided to him. He has stated that believing on the assurance of the petitioner Rs. 7000/- was paid by the informant which was in the knowledge of Manoj Kumar, Saroj, Asit Sarkar, Kishori Sao, Amid Ansary and Naresh Kr. Arya. It has further been stated that even after expiry of two and a half years the loan was not provided to the informant and when the matter was informed to his father he had also gone but was misguided by the petitioner. This witness has proved his signature in the complaint petition which has been marked as Exhibit-1. P.W.2 (Asit Kumar Sarkar) has stated that the petitioner had taken Rs. 7000/- from the informant for providing him loan under the P.M.R.Y., Scheme. He has stated that on demand the petitioner did not return the amount. He has further stated that the petitioner had taken Rs. 4400/- from his sister Anju for providing service in a girls school. P.W.3 (Ram chandra Baitha) is the Investigating Officer of the case who has stated that after Jorapokhar P.S. Case No. 59/98 was instituted investigation was handed over to him. This witness had taken the restatement of the informant and had also visited the place of occurrence which is a Betel Shop situated in Jitpur Co-operative Colony. This witness has recorded the statement of several persons and on completion of investigation charge-sheet was submitted. P.W.4 (Nizamuddin) has supported the allegation although the amount of Rs. 7000/- was not given in his presence. This witness has stated that the petitioner has also taken money from him. P.W.5 (Binda Lal Burnwal) has deposed that the petitioner had taken Rs. 7000/- from him for providing him with a loan of Rs. 1,00,000/-. He has stated the amount was never returned. He has further stated that the petitioner has duped several persons. P.W.6 (Naresh Kumar) has supported the occurrence and has further stated that the petitioner had also taken Rs. 16,000/- from him in connection with Gas Testing Examination. He has stated that in spite of paying the amount he did not succeed in the examination. P.W.7 (Kishori Sao) has also supported the prosecution case.

6. The defence had examined the petitioner as a witness. D.W.1 (Pramod Kumar Srivastava) has stated that he had lodged a complaint against the informant before the Deputy Commissioner as Rs. 3000/- which was taken by the informant on the pretext of his mothers illness was never returned to him. He has proved the receipt of such complaint which was marked as Exhibit-A. He has further stated that on 19.12.1997 the informant and Others had threatened him to withdraw the complaint made before the Deputy Commissioner. He has also stated that the complaint was made to Jorapokhar P.S. This witness has also proved various documents to suggest his innocence.

7. It has been submitted by the learned counsel for the petitioner that the petitioner has falsely been implicated in the present case only as a retaliation to the case instituted by the petitioner. Learned counsel for the petitioner submits that there is no eye witness to the occurrence save and except the informant.

8. Learned A.P.P., for the State has opposed the prayer made by the petitioner.

9. It appears from the evidence of the witnesses that the petitioner has a habit of taking loan on one pretext or the other but thereafter does not return the amount taken as is the case with the informant also. The informant has disclosed about handing over of Rs. 7000/- to the petitioner on his promise that the loan under the P.M.R.Y., Scheme shall be sanctioned and this fact was known to several close associates of the informant who having been examined as witnesses have also supported the said fact. In fact some of the witnesses have also disclosed about their experience with the petitioner and as to how the petitioner had duped them by divesting them of a certain amount of money. The assemblage of several persons in the house of the petitioner as per his own evidence appears to be a tacit admission on the part of the petitioner that the aggrieved persons had approached him for repayment of the loan. The defence version for such gathering appears to be unjustified and unbelievable. The petitioner who has been examined as D.W.1 has tried to prove his innocence by weaving an altogether new story but it appears that the petitioner in the face of an impending complaint has created a defence which gets obliterated due to the cogent and reliable evidence adduced on behalf of the prosecution. The circumstances narrated above therefore clearly reveals about the complicity of the petitioner in committing the offence and the learned trial court was therefore justified in convicting the petitioner for the offences punishable under Sections 420 and 406 of the Indian Penal Code. The same is hereby affirmed.

10. However, with respect to the sentence which has been imposed upon the petitioner it appears that the petitioner is facing the rigors of the prosecution case since the last two decades and has also remained in custody for sometime. On consideration of such facts as well as the nature of the offence the sentence imposed upon the petitioner is modified to the period already undergone.

11. This application stands dismissed with the aforesaid modification in the period of sentence.