Dharam Pal vs State of Haryana

M.L. Singhal, J.H.

In case FIR No. 217 dated 1.7.1978 under Sections 420/467/468/471 of Indian Penal Code of Police Station, Thanesar, vide order dated 5.3.1987 passed by the Chief Judicial Magistrate, Kurukshetra, Gurcharan Singh, Daljit Singh, Lakhbir Singh and Dharampal were convicted under Sections 420/467/471 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for one year each under Section 420 of the Indian Penal Code. They were sentenced to undergo rigorous imprisonment for one year each under section 467 of the Indian Penal Code. They were sentenced to undergo rigorous imprisonment for one year under Section 471 of the Indian Penal Code. They were sentenced to pay fine of Rs. 500/ each under Section 420 of the Indian Penal Code. Substantive sentences of imprisonment were ordered to run concurrently. Prosecution case unfolded at the trial runs as under :

In the year, 1976, Gurcharan Singh was working as salesman of Hansala Agricultural Services Cooperative Society Limited. His son Daljit Singh was the cashier of the society, while Dharmapal accused was the Secretary and Lakhbir Singhaccused was the Assistant Secretary. Daya Sagar was the member of the society. He made no application for taking loan from the society. Demand was raised against him and he moved application to the society that he had never applied for loan to the society nor even took any laon from the society and that if any loan was shown outstanding against him to the society that must have been in consequence of some forgery committed in the records of the society and consequential fraud upon him by the officebearers of the society. On the complaint of Daya Saga, Sh. Chaman Lal, Inspector Cooperative Societies, Thanesar was deputed to hold enquiry. Enquiry revealed that loan of Rs. 3000/ on 30.1.1976 and Rs. 2000/ on 13.2.1996 was shown to have been sanctioned/advanced to Daya Sagar in the record of the society. In fact, he never applied for the loan nor any loan was advanced to him. Loan documents did not bear the signatures of Daya Sagar. His signatures on the documents were false and forged. Disputed amount was misappropriated with the connivance of Gurcharan Singh, Daljit Singh, Lakhbir Singh and Dharmpal. During enquiry, Gurcharan Singh admitted his liability to the tune of Rs. 5000/. He had given writing to this effect to Daya Sagar where he undertook that he would pay the said amount with interest upto 20.9.1977 to the society. Gurcharan Singh, however, deposited only Rs. 1460/ as principal and Rs. 1040/ as interest in the bank. The remaining principal amount of Rs. 3540/ and the remaining amount of interest was not deposited by Gurcharan Singh. Notice was sent to all the accused for depositing the amount in the bank but to no effect. Sh. Maha Singh, Assistant Registrar, Cooperative Societies, Kurukshetra wrote letter Ex. PA dated 9.6.1978 to the Superintendent of Police, Kurukshetra. Case FIR No. 217 dated 1.7.1978 was registered at Police Station, Thanesar under Sections 420/467/468/471 of the Indian Penal Code against Gurcharan Singh, Daljit Singh, Lakhbir Singh and Dharampal. During investigation, it transpired that Daljit Singh cashier was authorised to distribute the LPO as per proceedings book and Dharampal secretary was authorised to scribe the proceedings. Tamasakhs (bonds) were found to have been scribed by Lakhbir Singh. Daya Sagar produced writing given by Gurcharan Singh under his signatures in the presence of Jarnail Singh whereby he undertook the liability of the disputed amount. After investigation, accused were challaned.

Accused were tried on charge under Sections 420/467/471 of the Indian Penal Code by the Chief Judicial Magistrate, Kurukshetra who vide order dated 5.3.1987 found the charge under sections 420/467/471 of the Indian Penal Code proved against each of the accused. He accordingly convicted and sentenced them thereunder as indicated above.

Gurcharan Singh and Daljit Singh challenged their conviction and sentence through criminal appeal No. 13 of 1987 in the Court of Sessions. Similarly Dharampal and Lakhbir Singh challenged their conviction and sentence in the Court of Session through criminal appeal No. 12 of 1987. Learned Additional Sessions, Kurukshetra vide order dated 27.10.1987 recorded in criminal appeal No. 12 of 1987 ibid disposed of the two appeals. Qua Daljit Singh appeal was accepted and he was acquitted while Gurcharan Singh''s appeal was dismissed. Qua Lakhbir Singh, appeal was accepted and he was acquitted, while Dharampal''s appeal was dismissed.

Dismissal of the appeals of Gurcharan Singh and Dharampal has not dampened their spirits and they have come up in separate criminal revisions to this Court, namely Crl. Revision No. 1044 of 1987 filed by Gurcharan Singh and Crl. Revision No. 1043 of 1997 filed by Dharampal. Both these criminal revisions will be disposed of through this common judgment as they arise from the same order of conviction and sentence.

I have heard Sh. R.S. Cheema, learned Senior Advocate and Sh. S.S. Pattar, learned AAG Haryana in both the revisions and have gone through the record.

The fact that Gurcharan Singh was salesman of the society and Dharampal was its Secretary is not in dispute. Daljit Singh was the cashier and Lakhbir Singh was Assistant Secretary of the society is also not in dispute. Daya Sagar PW.5 stated that he did not take loan whatsoever from the society. Resolution Ex.PC/2 and forms ''E'', Ex.PW.6/A and Ex.PW.6/B show that Daya Sagar''s name was used for obtaining loan from the society. On one occasion i.e. 30.1.1976 Rs. 3000/ was taken on and on another occasion i.e. 13.2.1976 Rs. 2000/ was taken. Gurcharan Singh gave receipt Ex.P.1 admitting that he had taken fertilizers in the name of Daya Sagar and that he would repay the amount as per documents Ex.PW.10/E and Ex.PW.10/D. Rs. 2500/ and Rs. 3950/ were deposited by Gurcharan Singh in the khata of Daya Sagar. Dharampal scribed resolutions Ex.PC/1 and Ex.PC/2 in the resolution book Ex.PC in his capacity as Secretary of the society. It was his duty to maintain the records of the society correctly and faithfully. Gurcharan Singh had played fraud inasmuch as he took fertilizers in the name of Daya Sagar and allowed the amount of loan 2500/ and Rs. 3950/ to be debited to the account of Daya Sagar. Dharampal played fraud insasmuch as in his capacity as Secretary of the society he connived what Gurcharan Singh had done and he scribed resolutions Ex.PC/1 and Ex.PC/2 in the resolution book of the society. It was submitted by the learned Senior Counsel that the statement of Daya Sagar PW.5 is deficient inasmuch as the same does not point out that the resolutions Ex.PC/1 and Ex.PC/2 and the relevant forms Ex.PW.6/A and Ex.PW.6/B were not signed by him. It was submitted that the prosecution did not examine any handwriting expert to show that the signatures purporting to be that of Daya Sagar were not his signatures.

In my opinion this argument suffers from a grave fallacy inasmuch as Daya Sagar has clearly stated that he never made any application to the society for obtaining loan for the purchase of fertilizers. When demand was raised against him, he accompanied by the Sarpanch approached Gurcharan Singh who gave him writing Ex.P.1 wherethrough he admitted his liability and undertook to repay the amount to the society. Raj Kumar PW.9 and Ram Chander PW.10 proved vouchers Ex.PW.10/E and Ex.PW.10/D. Raj Kumar PW.9 has stated that amount shown in these vouchers was deposited by Gurcharan Singh. Raj Kumar and Ram Chander PW.9 and PW.10 respectively were not crossexamined so far as these vouchers are concerned. When Gurcharan Singh did not dispute the deposit of Rs.2500/ and Rs. 3950/ in the account of Daya Sagar with the society vide vouchers Ex.PW.10/E and Ex.PW.10/D, the omission on the part of Daya Sagar that he never signed Ex.PW.6/A and PW.6/B is not material. If Daya sagar had obtained loan of Rs. 5000/ from the society, why Gurcharan Singh should have given writing Ex.P.1 that he would pay this amount to the society and that he was owing this liability to the society. Gurcharan Singh and Dharampal were officebearers of the society. They did not take up specific plea that Daya Sagar had made an application for obtaining loan and that he had actually obtained loan and signed the loan documents. It was not suggested by the accused that the signatures purporting to be signatures of Daya Sagar on the documents were really his signatures. Gurcharan Singhaccused did not make any effort to show that writing Ex.P.1 was not signed by him. All that he was harping upon was that Jarnail Singh who attested Ex.P.1 was inimical toward him as he had appeared as witness in a murder case against Jarnail Singh. Suffice it to say, Jarnail Singh was not to be the recipient of the amount. Recipient of the amount was the society and therefore it is of no consequence even if we assume that Jarnail Singh was inimical towards Gurcharan Singh. It would bear repetition that Gurcharan Singh ought to have shown that he never signed writing Ex.P.1. Moreover, Daya Sagar PW.5 also adverted to writing Ex.P.1 in his statement and proved it. Dharampal was the secretary of the society. He forged the resolutions of the society and forms ''E'' by indicating Daya Sagar as one of the loanees. This was false as Daya Sagar had never applied for loan to the society. He never approached the society nor he signed the forms ''E''. It was the duty of the Secretary of the society to maintain records of the society faithfully as is enjoined upon him by the byelaws of the society namely Ex.PW.12/9. Kundan Singh PW.3 and Santa Singh PW.5 stated that Dharampal used to scribe proceedings of the society in its proceedings book and also the loan documents etc. The duty of the salesman of the society was to disburse fertilizers to the members of the society to whom laon was sanctioned. No fertilizers was drawn in the name of Daya Sagar by Gurcharan Singh when Daya Sagar was not the loanee. Fertilizers in the name of Daya Sagar was drawn by Gurcharan Singh and the price of the fertilizers was debited to the account of Daya Sagar. Later on Gurcharan Singh deposited some amount with the society in the account of Daya Sagar. Dharampal and Gurcharan Singh were thus justifiably held liable for forging the record of the society and cheating Daya Sagar of the amount of loan debited to his account which was in fact never taken by him. In view of this state of evidence their conviction was justified.

Faced with this position, learned senior counsel for the petitioners submitted that the loan amount relates to the year 1976. FIR was registered in the year 1978. Gurcharan Singh and Dharampal have been facing agony of the criminal trial for the last about 20 years. Criminal trial has been hanging on their head like a Damocle''s sword for the last 20 years. Ends of justice would be adequately met, if they are let off with the sentence already undergone by them. Gurcharan Singh was 70 yeard old in 1987 when his statement under Section 313 Cr.P.C. was recorded and Dharampal was 35/40 years old. Both of them were first offenders. Their character and antecedents were clean. Gurcharan Singh and Dharampal were allowed anticipatory bail by the learned Additional Sessions Judge, Kurukshetra vide order dated 24.2.1979. As such, they did not go in jail at all. Offence falling within the mischief of Section 467 of the Indian Penal Code is punishable with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and also fine. So, the question of release of Gurcharan Singh and Dharampal on probation cannot arise. This criminal case has been hanging fire on Gurcharan Singh and Dharampal for the last 20 years. I think some leniency should be shown to them in the matter of sentence. Sentence imposed upon them is slashed and instead they shall undergo rigorous imprisonment for 4 months each on each count. Sentence of fine is raised to Rs. 5000/ each in place of Rs. 500/ imposed by the learned Magistrate. The entire amount of fine will be paid to the society, which will go towards discharging the loan amount lying debited to the account of Daya Sagar. Substantive sentences shall run concurrently. In case amount of fine is not paid, they shall undergo rigorous imprisonment for one and half months each.

These criminal petitions succeed and are accepted but only respecting quantum of sentence as indicated above.