1 REVN.184-2017.JUDGMENT.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CRIMINAL REVISION APPLICATION NO. 184 OF 2017

Rajeshkumar S/o Mangaldas Ramteke

Aged about years, Occ: Labour,

R/o. Asoli, Tah. & District Gondia.APPLICANT

Versus

The State of Maharashtra,

Thr. Police Station Officer, Sakoli,

Tah. Sakoli, District Bhandara. NON-APPLICANT

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Mr. U.K. Bisen, Advocate for the Applicant.

Mr. A.M. Joshi, APP for the Non-applicant/State.

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CORAM :URMILA JOSHI PHALKE, J.

RESERVED ON : 26

th

FEBRUARY, 2026.

PRONOUNCED ON : 07

th

MARCH, 2026.

ORAL JUDGMENT :-

1. By preferring this Revision, the Applicant has

challenged the judgment and order of conviction passed by the

Judicial Magistrate First Class, Sakoli dated 01.02.2012 in

R.C.C. No.59/2006, by which the Applicant is convicted of the 2026:BHC-NAG:3819

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offence punishable under Section 420 read with Section 34 of

the Indian Penal Code and sentenced to suffer rigorous

imprisonment for one year and fine of Rs. 1,000/- in default of

payment of fine to suffer rigorous imprisonment for one month,

which is confirmed in Criminal Appeal No.4/2012 by the

Additional Sessions Judge, Bhandara dated 03.11.2017.

2. Brief facts which are necessary for the disposal of

the present Revision are as under:

2(i). The Applicant is the original accused in R.C.C.

No.59/2006. He is prosecuted on the basis of a report lodged by

Ranjit Deoraoji Lade at Sakoli Police Station alleging that the

present Applicant has collected huge amount from various

persons either on the pretext of giving job or giving admission

and cheated them. On the basis of the said report Police have

registered the crime against the present Applicant.

2(ii). After registration of the crime, the wheels of the

investigation started rotating and the Investigating Officer has

recorded the relevant statements of witnesses and after

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completion of the investigation submitted charge-sheet against

the present Applicant.

2(iii).Learned Judicial Magistrate First Class, Sakoli

framed charge against the present Applicant vide Exh.8. The

contents of the charge were read over and explained to him for

which he pleaded not guilty and claimed to be tried. In support

of the prosecution case, the prosecution has examined in all 8

witnesses i.e. PW-1/Ranjit Devrao Laade vide Exh.20,

PW-2/Madhukar Ghanshyam Tarone vide Exh.23, PW-3/Vinayak

Madku Phunde vide Exh.30, PW-4/Gajanan Kashiram

Brahmankar vide Exh.31, PW-5/Loknath Dinba Patode vide

Exh.35, PW-6/Ashwini Gopichand Nahokar vide Exh.42,

PW-7/Shama Mohammad Abid Sheikh vide Exh.46 and

PW-8/Ashok Ganpatrao Donadkar Investigating Officer vide

Exh.74.

2(iv). Besides the oral evidence, the prosecution placed

reliance on Oral Report-Exh.21, Seizure memo-Exhs.26 & 39,

Spot panchnama-Exh.36, Memorandum statement of

accused-Exh.37, Discovery panchnama at the instance of the

accused-Exh.38 and First Information Report-Exh.75.

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2(v). The learned Magistrate appreciated the evidence

and comes to the conclusion that the prosecution proved its case

beyond reasonable doubt against the accused and convicted him

as aforestated. Being aggrieved and dissatisfied with the said

judgment and order of conviction, the present Applicant has

preferred the Appeal. The Appeal also came to be dismissed by

the learned Appellate Court by observing that the evidence of

the witnesses remained unshaken in their cross-examination

conducted on behalf of the Applicant accused and the evidence

sufficiently shows that the present Applicant has obtained the

money against unlawful contract and thereby committed an

offence, the intention since inception appears to be there on the

part of the present Applicant as he has obtained the money for

illegal activities and thereby dismissed the Appeal. Being

aggrieved and dissatisfied with the same the present Revision

Application is preferred.

3. There is no dispute as to the legal principle is

concerned that the scope of interference by this Court in

revisional jurisdiction under Section 397 of the Code of

Criminal Procedure (for short “Cr.P.C.”) is limited. In its

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revisional jurisdiction, this Court is not expected to sit as Court

of Appeal and re-appreciate the evidence. However, when the

findings of the Courts below appears to have been recorded on

the basis of no evidence, or evidence which even if believed in

entirety cannot prove the guilt of the accused for the offences

charged, this Court would be justified in exercising its

jurisdiction under Section 397 of Cr.P.C.

4. The prosecution’s case is wholly based on the oral

evidence of the Complainant and the other witnesses who

alleged that the present Applicant obtained the money from

them on one or the other pretext and thereby duped them. To

prove the said allegations, the prosecution placed reliance on

the evidence of PW-1/Ranjit Laade who examined vide Exh.20,

who testified that on 01.04.2005 he came to know that the

present Applicant is starting a course of Diploma in Special

Education in his College, and therefore, he is recruiting the

clerks and other persons for running his college. This

information was given to him by one Mendhe and thereafter he

met the present Applicant in one pan stall of one Mendhe near

the Agrawal Petrol Pump and requested him to recruit him as a

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clerk in his College. At that time, the accused demanded from

him Rs. 1,50,000/- for giving him a job as a clerk in the College

and thereafter agreed to accept the amount of Rs.45,000/- for

securing service in the College. Accordingly, he paid the amount

of Rs. 45,000/- on 09.05.2005 to the present Applicant in the

office of College at Sakoli in presence of Madhukar Tarone. On

01.04.2005, he joined the service in the College and it was

informed him that he will receive Rs.700 as honorarium for the

initial period and thereafter the salary as per the rules of Zilla

Parishad. When he joined the duty students who are coming for

the enquiry as to when the College is going to commence. He

came to know that the present Applicant has obtained the

money from various students and cheated them.

5. The evidence of PW-2/Madhukar Tarone is also on

the same line, who also deposed that he has completed his

education by completing the Diploma in Library Science. He

came to know that, the present Applicant is starting the College,

and therefore, he approached to him for securing the job of

Librarian. From him the Applicant has demanded Rs. 60,000/-

and in presence of his uncle he has given the amount of

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Rs. 60,000/-. The Applicant assured him to pay Rs.500/- to

Rs.600/- per month as salary for initial some months and

thereafter to pay full salary. He joined the College of accused

No.1 as Librarian and thereafter the students started joining the

College but the present Applicant never vitiated the College and

the salary was never paid to him. Thus, he was cheated by the

present Applicant.

6. The evidence of PW-3/Vinayak Phunde also deposed

that, for the job of a Peon in his College the amount of Rs. 1

Lakh was demanded from him. He has arranged the amount of

Rs. 30,000/- and the said amount was accepted by the present

Applicant. However, no job was given and no salary was given

to him. PW-4/Gajanan Brahmankar is a student who

approached to the employees of the College for obtaining

admission for the Diploma for the Human Resources and the

amount of Rs. 70,000/- was obtained from him but neither the

College was started nor the amount was given to him.

7. The evidence of PW-5/Loknath Patode states that,

the amount of Rs. 60,000/- was obtained from his nephew

PW-2/Madhukar Tarone on account of giving him a job and no

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salary was given to him and the amount was also not paid to

him. Similarly, from PW-6/Ashwini Nahokar the amount of

Rs. 40,000/- was obtained for giving admission for Diploma in

Special Education and College never started. The false promise

was given to them. The evidence of PW-7/Shama Sheikh also

shows that the amount was obtained from various persons on

one or the other pretext and thereby they are cheated.

8. Thus, all the witnesses are cross-examined at length

but as far as the aspect of obtaining the money is concerned

which is not shattered during the cross-examination. The

cross-examination of PW-1/Ranjit shows that the Applicant has

given advertisement in the newspaper stating the vacancy in the

College are to be filled. Therefore, he approached the Applicant

and obtained from him an amount of Rs. 45,000/-. His evidence

shows that, other witnesses Madhukar Tarone gave

Rs. 60,000/-, Vilas Nakhate gave Rs. 40,000/-, Vinjayak Phunde

gave Rs.30,000/- and Gajanan Brahmankar gave Rs. 40,000/-.

Thus, the amounts were collected from various persons either

for giving the job or giving the admission. The

cross-examination of PW-2/Madhukar Tarone states that, there

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was no advertisement in the newspaper regarding the vacancy

of post of Librarian in the College. It is further came in his

cross-examination that, he had not narrated before the Police

that the accused had demanded Rs.60,000/- and rest of the

cross-examination is in the denial form. The cross-examination

of PW-3/Vinayak Phunde also states that, though the amount

was obtained from him but no appointment letter was given to

him regarding his appointment. There was no advertisement

published in the newspaper regarding the vacancy for the post

of Peon. He has not personally verified by visiting the College

regarding the existence of the College. In the cross-examination

of PW-3/Vinayak Phunde nothing incriminating comes on

record. It is only in the form of denial the cross-examination

was carried out. Similarly, PW-4/Gajanan Brahmankar is also

cross-examined who has also admitted that there was no

advertisement published in the local newspaper. PW-5/Loknath

Patode who is the uncle of Madhukar Tarone who has

corroborated the version of PW-2/Madhukar Tarone that the

amount was given to the present Applicant for securing the job

to Madhukar Tarone. From PW-6/Ashwini, the amount was

obtained for giving her admission in the College but the College

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was never started. Similar is the evidence of PW-7/Shama

Sheikh. PW-8/Ashok Donadkar is the Investigating Officer who

has narrated about the investigation carried out.

9. Considering the nature of the evidence adduced by

the prosecution, which was not shattered during the

cross-examination. The learned Judicial Magistrate First Class

observed that, there was an intention since inception and the

prosecution has proved all the ingredients of the offence

punishable under Section 420 of IPC against the present

Applicant beyond reasonable doubt and convicted the present

Applicant. The said findings are confirmed by the Appellate

Court by observing that the evidence of the witnesses remained

unshaken in their cross-examination, the evidence is consistent

as far as the constitution of the offence punishable under

Section 420 of IPC is concerned.

10. To attract the offence punishable under Section 420

of IPC, the basic ingredients which are necessary to be proved

by the prosecution that there was intention since inception.

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11. To constitute an offence under Section 420 of IPC

there has to be (1) Deception of any person, either by making a

false or misleading representation or by other action or by

omission; (2) Fraudulently or dishonestly inducing any person

to deliver any property, or (3) The consent that any person shall

retain any property and finally intentionally inducing that

person to do or omit to do anything which he would not do or

omit.

12. A reading of the entire material on record clearly

reflects that it was totally an unlawful contract between the

present Applicant and the prosecution witnesses where money

was being paid for securing a job in the Government

Department. It is apparent that, the present Applicant has taken

undue advantage of unemployment and taking the benefit of

weakness of the unemployed youths the money was obtained

from them and they were duped. The prosecution witnesses

have paid the money for either for securing for job or for

securing the admission in the College. Thus, the amounts are

obtained by the present Applicant against the unlawful contract.

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13. The essential ingredients are intention to deceive

any person fraudulently, to dishonestly induced the persons so

deceived to deliver any property which he would not have done

if he was aware of the deception. The essential ingredient

therefore is a dishonest intention from the very inception. In the

present case, there is allegation of dishonest intention from the

inception as there was no advertisement by the present

Applicant to fill up the post in fact the College itself was not in

existence and the present Applicant has obtained the money

from various students against the admissions for various courses

and also obtained money from the unemployed youths for

securing the job. Thus, the allegations of a fraudulent and

dishonest intention from the very inception is apparent from the

entire evidence. A bare perusal of the evidence reveals that, on

taking into consideration all the allegations levelled against the

present Applicant, admittedly, the employment in the

Government is available on advertisement and selection is to be

on the basis of merits. It cannot be purchased by the money. By

taking disadvantage of the weakness of the unemployed youth

the amounts were obtained from them and thereby they were

deceived. Therefore, the prima facie case is made out against

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the present Applicant. Therefore, the learned Trial Court as well

as the learned Sessions Judge has confirmed the sentence.

14. Learned Counsel for the Applicant vehemently

submitted that, the benefit of the provisions of Probation of the

Offenders Act, 1958 (for short “P.O. Act”) be extended to the

present Applicant. In support of his contention, he placed

reliance on the judgment of the Punjab and Haryana High Court

in the case of Om Parkash Vs. State of Punjab, CRR No.

170/2016 (O&M), decided on 19.03.2019, wherein the Punjab

and Haryana High Court held that Section 360 of Cr.P.C., leaves

no manner of doubt that a Court must consider the age,

character or antecedents of the offender and the circumstances

in which the offence was committed and then decide whether

he is entitled to be released on probation of good conduct or

not. Section 3 of Probation of Offenders Act, 1958, further

entitles a convict to release after due admonition if the case falls

within the parameters prescribed therein.

15. This aspect is also considered by the Hon’ble Apex

Court in the case of Dalbir Singh Vs. State of Haryana & Ors.,

2000 AIR SCW 1653, and it is observed that, in the matter of

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release of a person convicted of an offence on probation of good

conduct the Parliament has made it clear that it has to be only if

the Court forms the opinion that it is expedient to release him

on probation for his good conduct regard being had to the

circumstances of the case. One of the circumstances which

cannot be sidelined in forming the said opinion is “the nature of

the offence.” Parliament has left it to the Court to decide when

and how the Court should form such opinion. It provided

sufficient indication that releasing the convicted person on

probation of good conduct must appear to the Court to be

expedient. The word “expedient” had been thoughtfully

employed by the Parliament in the section so as to mean it as

“apt and suitable to the end in view.” Here the word “expedient”

is used in Section 4 of the Probation of Offenders Act in the

context of casting a duty on the Court to take into account “the

circumstances of the case including the nature of the offence.”

This means Section 4 can be resorted to when the Court

considers the circumstances of the case, particularly the nature

of the offences, and the Court forms its opinion that it is suitable

and appropriate for accomplishing a specified object that the

offender can be released on probation of good conduct.

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16. While expressing the meaning to the word

“expedient”, it is observed by the Hon’ble Apex Court that;

“Again, the word ‘expedient’ used in this provisions, has several

shades of meaning. In one dictionary sense, ‘expedient’ means

‘apt and suitable to the end in view,’ ‘practical and efficient,’

‘politic,’ ‘profitable, ‘advisable,’ ‘fit, proper and suitable to the

circumstances of the case’. In another shade, it means a device

‘characterised by mere utility rather than principle conducive to

special advantage rather than to what is universally right’. It

was further held by the Hon’ble Apex Court that, the Court must

construe the said word in keeping with the context and object of

the provision in its widest amplitude. Here the word “expedient”

is used in Section 4 of the Probation of Offenders Act in the

context of casting a duty on the Court to take into account “the

circumstances of the case including the nature of the offence.”

This means Section 4 can be resorted to when the Court

considers the circumstances of the case, particularly the nature

of the offence, and the Court forms its opinion that it is suitable

and appropriate for accomplishing a specified object that the

offender can be released on probation of good conduct.

16 REVN.184-2017.JUDGMENT.odt

17. In another judgment in the case of State, Through

Police Inspector, Mapusa Police Station, Goa Vs. Shaikh

Mohammad Rafiq s/o Shaikh Amrul Hassan, 2009 ALL MR

(Cri) 3489, the Court has observed that, the object of the P.O.

Act is to attempt for the possible reformation of certain

offenders, instead of inflicting on them the normal punishment

for their offences and thereby to prevent the turning of the

offenders into criminals, by their association with hardened

criminals of mature age within the walls of a prison. However,

while keeping this object in view, it must also be borne in mind

that the exercise of the discretion given to the Courts under

Section 4 of the Act needs considerable sense of responsibility

and the Courts should not be misled into the free use of the

section by misplaced leniency and sympathy. The provisions of

the said Act relating to probation must be applied with

discretion for otherwise rather than preventing the turning of

the offenders into criminals, it may assist in the manufacture of

criminals, for it may be become known that first offences even

in respect of rather serious lapses can be committed with

impunity, by merely offering to execute a bond for good

behaviour. This would certainly be not in the interest of the

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offender as well as the society. Before making an order under

Section 4(1) of the Act, it is necessary for the Court to consider

(i) circumstances of the case, (ii) nature of the offence and (iii)

the character of the offender. It will thus be seen that the

circumstance that no previous conviction is proved against the

offender would not by itself be a sufficient reason for inflicting

no penalty upon him. Calling for a report from the probation

officer is, therefore, absolutely necessary in the interest of the

offender and the society, and the same should be considered by

the Court before releasing the offender on probation of good

conduct. Releasing the offender on probation without proper

enquiry as regards the character and antecedents of the accused

would be exposing the society to the risk of the offender

repeating the unlawful act and to bring the whole scheme of the

probation into discredit.

18. There is no doubt that sub-section (1) of Section 4

of the P.O. Act, has a non obstante clause but at the same time it

gives discretion to the Court to release an accused on probation

after considering the nature of the offence, the character of the

offender and after finding out whether it is expedient to release

18 REVN.184-2017.JUDGMENT.odt

him on probation of good conduct. Expression “expedient”

means desirable. The Apex Court in Dalbir Singh (infra) has

observed that the word “expedient” was thoughtfully employed

by Parliament so as to mean “apt and suitable to the end in

view”. The Apex Court further held that the Court must

construe the said word in keeping with the context and object of

the provisions in its widest amplitude.

19. Considering the facts and circumstances of the case

which shows that various persons who are the students and

unemployed youths were on the false promise of giving job and

the amount was extracted from them and they are cheated by

the present Applicant. Thus, considering the nature of the

allegations levelled against the present Applicant and the same

are proved against him through the consistent evidence of

various witnesses. There is nothing on record to show that, it is

expedient or apt and suitable to release him on a probation by

giving him the benefit of the provisions of the P.O. Act. No

circumstances are brought on record to show that, it is

expedient in the interest of justice to give him a benefit of P.O.

Act when he has committed the offence like cheating by

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extracting the money by entering into the unlawful contract

with the various persons. After completion of education the

unemployed youth are under expectation to get a good job, by

taking disadvantage of the weaknesses of such type of

unemployed youths, who are not getting job despite their

qualifications and extracting the money from them and

committing the offence of cheating, is a serious offence against

the present Applicant. The intention since inception is present,

and therefore, considering the arguments addressed by the

learned Counsel for the Applicant, I do not find that this is a fit

case wherein such benefit can be given to the present Applicant

under the circumstances that various students and the

unemployed youths are cheated by the present Applicant by

obtaining the money from them. In view of that, the prayer of

the learned Counsel for the Applicant that, the benefit of P.O.

Act be given to the present Applicant, is not sustainable.

20. By applying the principles that the scope of

interference by this Court in revisional jurisdiction is very

limited. This Court is not a Court of appeal to re-appreciate the

evidence. The interference in the finding of the Courts below

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should be when the findings are when there is no evidence or

the evidence which even if believed is entirety cannot prove the

guilt of the accused for the offences charged. There is no

perversity in the judgment and order of the learned Trial Court

as well as the learned Appellate Court, and therefore, the

Revision Application being devoid of merits liable to be

dismissed. Accordingly, I proceed to pass the following order.

O R D E R

i.Criminal Revision Application is dismissed.

21. Pending application/s, if any, shall stand disposed of

accordingly.

(URMILA JOSHI PHALKE, J.)

S.D.Bhimte