Joginder Singh vs State of Haryana

R.L. Anand, J.

This criminal revision filed by Joginder Singh has been directed against the judgment dated 21st February, 1997 passed by the Additional Sessions Judge, Hisar, who convicted the petitioner under Section 418, Indian Penal Code, instead of Section 420, Indian Penal Code, while the petitioner was convicted and sentenced under the latter section by the Court of Judicial Magistrate 1st Class, Siwani.

Brief facts of the case are that Shri Raj Singh Beniwal, Junior Engineer, informed the S.D.O. to the effect that Umed Singh, coaccused of the petitioner, had deposited a security of Rs. 85/ on 17th April, 1990 for obtaining electric connection. In January, 1991, Raj Singh Beniwal, Junior Engineer, in pursuance of this application sent the estimate through Shri Dhanpat, who was employed on daily wages, but he was informed that there was already installed a meter in the house of Umed Singh and the description of the meter was given on the file. On 6th June, 1991, Shri Raj Singh Beniwal intimated the office of the S.D.O. for inquiry into the matter and consequently on 20th June, 1991 on checking, it was found that without any sanction, there was installed a meter of Jaipur 1020 Amp. No. 10027060 and Shri Umed Singh told the S.D.O. that Joginder Singh, who is posted as Assistant Lineman, had installed this meter after obtaining a sum of Rs. 275/ from him. Joginder Singh accused had also attested the security file as per account No. S609, while it was found that it was consumer number of one Lakhi Ram. On this report of the S.D.O., case was registered and investigated. The meter, electric wires etc. were taken into possession. On completion of the investigation, challan was put up.

To the charge framed under Sections 39/39A of the Indian Electricity Act and under Sections 420/120A, Indian Penal Code, the accused pleaded not guilty and claimed trial. Statements of the accused under Section 313, Cr.P.C., were recorded. The accused denied all the prosecution allegations.

Vide judgment and order dated 9th September, 1994 passed by the Judicial Magistrate 1st Class, Siwani, convicted petitioner Joginder Singh for an offence under Section 420, Indian Penal Code, for cheating the Electricity Board by installing an unauthorised meter in the house of accused Umed Singh, and sentenced him to undergo rigorous imprisonment for one year and directed him to pay a fine of Rs. 500/, and in default of payment of fine he was ordered to undergo further rigorous imprisonment for one month. Aggrieved by the judgment and order passed by the learned Judicial Magistrate 1st Class, the petitioner filed the first appeal in the Court of Additional Sessions Judge, Hissar, who vide judgment dated 21st February, 1997, instead of maintaining the conviction under Section 420, IPC maintained the conviction under Section 418, IPC, and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/. In default of payment of fine, the petitioner was directed to undergo further rigorous imprisonment for one month.

Aggrieved by the conviction and sentence recorded by the Courts below, present revision has been filed by Joginder Singh petitioner, which I am disposing of with the assistance rendered by Shri O.P. Sharma, Advocate, who appeared on behalf of the petitioner, and Shri S.S. Pattar, Assistant Advocate General, Haryana, who appeared on behalf of the respondentState.

While maintaining the conviction aspect of the case, learned Additional Sessions Judge has given the reasons in paras Nos. 9 and 10 of the judgment, which I would like to reproduce as under :

``9. Now considering the case of Joginder Singh, it may be mentioned that it was duty of Joginder Singh being employee of the H.S.E.B. department to protect the interest of Haryana State Electricity Board and he has caused wrongful loss to the Board and he has also cheated Umed Singh accused by receiving a sum of Rs. 275/ from him and by providing a fictitious electric connection to him. It is pertinent to mention that no direct evidence can be adduced in this case because beneficiary is himself an accused. A fact can be proved by direct as well as/or circumstantial evidence. In this case, admission made by Umed Singh which is proved as Ex.PF before the S.D.O. on 20.6.91 speaks volumes about the involvement of the present accusedappellant Joginder Singh in this case. Then there is also statement under Section 313, Cr.P.C., of accused Umed Singh against present accused Joginder Singh. Further in the statement of Sita Ram UDC, PW.4, documents Ex.PD, Ex.PE, and Ex.PF, are produced and it is stated by Sita Ram SDC that these documents Ex.PD and Ex.PE bear the attestation of Joginder Singh. Learned counsel for the accusedappellant wants to take benefit of this fact that Sita Ram in crossexamination has expressed his ignorance about this fact that he cannot tell whose signatures in Punjabi are existing on Ex.PE. But there is no categorical suggestion put to this witness that these documents do not bear the signatures of Joginder Singh accused. Neither signatures of Joginder Singh accused on application Ex.PD for obtaining the electric connection are assailed in any manner. It is also pertinent to mention that a perusal of the file shows that Joginder Singh accused has signed in Hindi on various documents such as bail bonds and application etc., but a persual of the file shows that at page No. 161 of the file of learned trial Court, there are existing signatures of Joginder Singh accused in Punjabi and that application is dated 18.11.91 and is marked as `A'' by me today. This application is for seeking exemption of personal appearance. A persual of the signatures of Joginder Singh existing on this application shows that same tally with his signatures on application Ex.PD and on guarantee Ex.PE and this Court under Section 73 of the Indian Evidence Act can compare the disputed signatures of Joginder Singh with standard or admitted signatures of Joginder Singh. No enmity, ill will or malice on the part of Raj Singh J.E., PW.1, Sita Ram UDC, PW.4, and Sh. B.S. Pahuja, SDO, PW.3, is alleged or proved. Meter Ex.P1 is also produced by the prosecution. Mere fact that Joginder Singh accused was the President of the Union, it cannot assumed that he has been falsely implicated in this case; rather the S.D.O. cannot dare to involve him falsely in this case when he was the President of the Union.

After giving my best considerations to all the facts and circumstances proved on the file of this case, I am of the considered opinion that the prosecution has been able to bring home the guilt to accused Joginder Singh under Section 418 IPC as this accused has cheated Umed Singh as well as Haryana State Electricity Board by his act and has caused wrongful loss to the Haryana State Electricity Board. The conviction of the accused under Section 418 IPC is maintained instead of Section 420 IPC and at this juncture it may be mentioned that accused can be punished for a lesser offence even if he is not charged and no prejudice has been caused to the accused for not framing specific charge under Section 418 IPC.''''

Assailing the judgments delivered by the Courts below, learned counsel for the petitioners submitted that the petitioner has been convicted on the basis of the statement made by Shri Umed Singh, whose statement at the most can be termed as a piece of evidence, but without any corroboration it cannot become the basis for conviction of the petitioner.

Refuting the argument of the learned counsel for the petitioner, Shri S.S. Pattar, learned counsel appearing for the State of Haryana, has mainly relied upon the confessional statement of Shri Umed Singh (Exhibit PF) and it was submitted on behalf of the State that said Umed Singh categorically confessed before the S.D.O. that the petitioner after obtaining a sum of Rs. 275/ from him had installed the concerned meter in an illegal manner and in these circumstances the confessional statement of Shri Umed Singh can be well relied upon visavis the petitioner also.

After considering the rival contentions of the parties, this Court is of the considered opinion that the learned Additional Sessions Judge has committed various illegalities in recording the conviction of the petitioner under Section 418, IPC. A perusal of Section 30 of the Evidence Act, would show that before acting upon the confessional statement of the coaccused, it has to be established by the prosecution that the marker of confession is implicating himself to the same extent as his coaccused. A perusal of the document (Exhibit PF), which has been mainly relied upon by the first appellate Court, would show that Umed Singh had never stated that he abetted his coaccused Joginder Singh for the installation of this meter. There is another illegality in this case. The document (Exhibit PF) has never been put to the petitioner, when his statement under Section 313, Cr.P.C. was recorded. These provisions are not idle formalities, which are supposed to be respected by the trial Court. Specific questions were supposed to be put to the accused, who is to explain all the incriminating circumstances on which the prosecution wanted to rely. By not affording opportunity to the petitioner to explain his conduct with regard to the alleged confessional statement made by his coaccused Umed Singh, serious prejudice has been caused to the petitioner, which alone is sufficient for this Court to set aside the conviction and sentence recorded by the learned Additional Sessions Judge.

Another glaring illegality, which has been pointed out by the learned counsel for the petitioner is that the petitioner was convicted for the offence under Section 418, IPC, on the plea of its being a lesser offence than that of Section 420 IPC, and that no prejudice had been caused to the petitioner; therefore the conviction under Section 418, IPC, is well justified. A glance to the provisions of Sections 420 and 418, IPC, would respectively show that the ingredients of Section 418, IPC, are totally different than the one under Section 420 IPC, and by no stretch of imagination it can be said that Section 418, IPC, hails from the same species as that of Section 420 IPC. While Section 420 IPC talks of cheating etc., Section 418, IPC, talks of cheating with knowledge that wrongful loss may ensue to the person whose interest the offender is bound to protect. Not an iota of evidence has been led by the prosecution that it was the concern of the petitioner to protect the interests of the Board. By recording the conviction under Section 418 IPC a serious prejudice has been caused to the petitioner.

Resultantly, I allow this revision petition, set aside the judgment and convictions recorded by the Courts below and acquit the accusedpetitioner Joginder Singh of the charges levelled against him.