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PETITIONER:

SURENDER KUMAR GARG

Vs.

RESPONDENT:

STATE OF UTTAR PRADESH

DATE OF JUDGMENT14/05/1993

BENCH:

SINGH N.P. (J)

BENCH:

SINGH N.P. (J)

ANAND, A.S. (J)

CITATION:

1993 SCR (3) 900 1993 SCC Supl. (3) 359

JT 1993 (3) 369 1993 SCALE (2)960

ACT:

%

Indian Penal Code-Sections 419, 420, 408 and 471-Offence

under-Reduction of sentence Upon repayment of amount.

HEADNOTE:

The appellant was charged with cheating the U.P. Industrial

Corporation of Rs. 39,352.50 by registering a take concern,

and taking in its name. Three courts concurrently found the

charges against him established.

On the question of sentence, it was contended that more than

20 %-cars had elapsed; the amount involved was not excessive

and other mitigating circumstances were placed (in the

record.

Partly allowing the appeal, this Court

HELD:1. The appellant had deposited Rs. 40,000/- (the loan

amount) as directed. (901-G)

2. In the peculiar facts and circumstances of the case,

conviction maintained but sentence of imprisonment reduced

to the period already undergone, and a fine of Rs. 2,000/-,

or one month R.I. in lieu thereof. (902-B)

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 830 of

1985.

From the Judgment and Order dated 30.7.85 of the Allahabad

High Court in Crl. Revision No. 1937 of 1983.

M.S. Gujral, A.K. Srivastava and Serva Mitter for the

Appellant.

R.C. Verma and A.S. Pundit.for the Respondent.

The Judgment of the Court was delivered by

901

N.P. SINGH.1. The appellant, was convicted under Sections

120-B, 419, 420, 468, and 471 of the Penal Code. lie was

sentenced to undergo rigorous imprisonments for different

periods under the aforesaid Sections. The appeal filed on

behalf of the appellant was dismissed by the learned

additional Sessions Judge, Ghaziabad. The High Court, on

revision application being filed on behalf of the appellant

set-aside his conviction under Section 120-B, but the

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conviction and sentence under other Sections mentioned above

passed by the trial Court were affirmed.

According to the prosecution case, the appellant,

established a firm by the name of Seemak Industrial

Corporation at Ghaziabad. The account in the bank was

opened in the name of one Vijai Kumar and the aforesaid

Industrial Corporation was registered in the Sales Tax

Department. The appellant applied for loan before the U.P.

Small Industries Corporation and got a sum of Rs. 39,352.50,

in the name of Seemak Industrial Corporation. Later it was

discovered that the aforesaid Seemak Industrial Corporation,

was a fake concern and the appellant had cheated, even the

U.P. Small Industries Corporation, in respect of the amount

advanced by them. The Trial Court, the Appellate Court as

well as the High Court have gone into details of the

materials on record for purpose of holding, that the charges

framed against the appellant had been established and as

such there was no occasion to interfere with the conviction

and sentence passed against him.

So far the present appeal is concerned, leave was granted as

early as in the year 1985 by this Court, but it has been

listed for hearing after about 8 years. The learned

Counsel. appearing for the appellant, after some arguments

on merit confined his submissions to the question of

sentence only. lie pointed out that offences aforesaid had

been committed by the appellant, as early as in the year

1973, more than 20 years from now and as such a

compassionate view should be taken of the whole matter

especially when the amount in respect of which the offences

are alleged to have been committed is not excessive. He

pointed out that the appellant has remained in jail for some

time, in pursuance of the order of conviction and sentence

and as such he need not be sent to jail again. An affidavit

detailing the mitigating circumstances has also been filed

by the appellant before us. Taking all facts and

circumstances into consideration, by our order dated 26th

April, 1993 we directed the appellant to first deposit an

amount of Rs. 40,000 (the loan amount) with the U.P. Small

Industries Corporation Ltd. Pursuant to that order Rs.

40.000 has been deposited with the U.P. Small Industries

Corporation Ltd., on 4-5-1993 and original receipt granted

by the Manager of the said Corporation was produced before

us. The zerox copy, of the said original receipt has been

kept on record and the original returned to the learned

counsel for the appellant. An affidavit has also been filed

on behalf 'of the appellant stating about

902

the aforesaid deposit.

In the peculiar facts and circumstances of the case while

maintaining the conviction of the appellant, we reduce the

sentence of imprisonment under different Sections mentioned

above to the period already undergone by him. The

appellant, shall however pay a fine of Rs. 2,000 and in

default of payment thereof, he shall undergo rigorous

imprisonment for a period of one month. The appeal is

allowed in part.

The deposit of Rs. 40,000 made by the appellant with the

U.P. Small Industries Corporation Ltd., shall be adjusted

towards the amount advanced by the said Corporation to the

appellant. The Corporation shall of course be at liberty to

take steps for realisation of any further sum. which may be

due. against the appellant.

U.R. Appeal partly allowed.

903

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