Back
2020 Supreme(Jhk) 718
IN THE HIGH COURT OF JHARKHAND AT RANCHI
ANUBHA RAWAT CHOUDHARY, J.
Bhim @ Bhim Prasad S/o Dasaiya Bauri – Petitioner
Versus
The State of Jharkhand through Central Bureau of Investigation – Respondent
Cr. Revision No. 658 of 2014
Decided On : 30-06-2020
Advocate Appeared:
For the Petitioner: Mr. Ashim Kumar Sahani.
For the Respondent: Mr. Rohit Sinha.
Headnote:
Indian Penal Code,1860 - Sections 419 and 420 - Prevention of Corruption Act, 1947 - Sections 5(2) r/w 5(1)(d) - Prevention of Corruption Act, 1988 - Sections 13(2) r/w 13(1)(d) - Hindu Adoption and Maintenance Act 1956 - Section 11 - Cheating and dishonesty – Cheating by personation - Whether person who alleges the existence of a custom need not prove the same because it is judicially accepted - Whether the appellant in said case could plead and prove the factum of adoption - Petitioner has preferred this criminal revision challenging the legality, propriety and correctness of Judgment Judicial Commissioner-XVI, Ranchi in Criminal Appeal, affirming judgment of conviction and the order of sentence passed by the learned trial court vide Judgment passed by SDJM-cum-Special Case petitioner was convicted under Sections 419 and 420 of IPC and was sentenced to undergo Rigorous Imprisonment for a period of 01 Year under Section 419 of IPC and Rigorous Imprisonment for a period months under Section 420 of IPC and was further sentenced to deposit fine of under Section 420 of IPC and in default of payment of fine, to undergo simple imprisonment for a period of 02 months - Learned counsel for petitioner submitted that the impugned judgments call for interference as they suffer from perversity. Learned counsel further submitted it was one Dasaiya who had given his declaration petitioner was his adopted son and subsequently, a letter of appointment was issued in favour of petitioner and in such circumstances – Held, Adopted son of Dasaiya. It has neither come in evidence as to why and under what circumstances Dasaiya had declared petitioner as his adopted son and on what basis this declaration by Dasaiya was accepted as correct by scrutiny committee before whom petitioner as well as Dasaiya had appeared for interview prior to appointment. The petitioner in his evidence could not prove his adoption by Dasaiya - It is not the case of the prosecution that any other person from the family of Dasaiya was eligible for appointment as per scheme and such person has been deprived of his rights. In the aforesaid facts and circumstances, this Court is of the considered view ends of justice would be served if the sentence of the petitioner is modified by limiting the sentence to the period already undergone by him in custody and the fine amount is enhanced - modified and reduced to the period already undergone by him in jail custody and the fine is enhanced deposited by the petitioner before the learned trial court – criminal is disposed
JUDGMENT :
ANUBHA RAWAT CHOUDHARY, J.
1. Heard Mr. A.K. Sahani, the learned counsel appearing on behalf of the petitioner.
2. Heard Mr. Rohit Sinha, the learned counsel appearing on behalf of the CBI.
3. The petitioner has preferred this criminal revision challenging the legality, propriety and correctness of the Judgment dated 24.05.2014 passed by Sri. R.K. Choudhary, Addl. Judicial Commissioner-XVI, Ranchi in Criminal Appeal No. 188/2013, affirming the judgment of conviction and the order of sentence passed by the learned trial court vide Judgment dated 30.07.2013 passed by Sri. Yashwant Prakash, SDJM-cum-Special J.M. (C.B.I.) Ranchi in R.C. Case No. 18(A)/2006(R) (Tr. No. 948/2013) whereby and whereunder the petitioner was convicted under Sections 419 and 420 of IPC and was sentenced to undergo Rigorous Imprisonment for a period of 01 Year under Section 419 of IPC and Rigorous Imprisonment for a period of 02 Years 06 months under Section 420 of IPC and was further sentenced to deposit fine of Rs. 5,000/- under Section 420 of IPC and in default of payment of fine, to undergo simple imprisonment for a period of 02 months. It was further ordered that both the sentences shall run concurrently and the period undergone by the petitioner shall be set off at the time calculation of sentence.
Arguments of the petitioner:
4. Learned counsel for the petitioner submitted that the impugned judgments call for interference as they suffer from perversity. Learned counsel further submitted that it was one Dasaiya who had given his declaration that the petitioner was his adopted son and subsequently, a letter of appointment was issued in favour of the petitioner and in such circumstances, there was no role of the petitioner, so far as cheating is concerned. Learned counsel also submitted that the petitioner has stated and led evidence before the learned trial court to the effect that the petitioner was the adopted son of said Dasaiya, but there was no documentary evidence to that effect, consequently, the plea of the petitioner was disbelieved by both the learned courts below. He also submitted that none of the officials of the Central Coalfields Limited were made accused in the present case. Learned counsel also referred to the conviction of the petitioner under Section 419 of IPC and submitted that although it has been recorded that the petitioner had no access to the records of Central Coalfields Limited (hereinafter referred to as CCL) and if the interpolation was done, the same could not have been done without connivance of the CCL employees, but in spite of that only the petitioner has been convicted.
5. The learned counsel referred to Paras 11, 12, 13, 14 and 17 of the judgment reported in Ratan Lal @ Babulal Chunilal vs. Sundarbai Govardhandas Samsuka, (2018) 11 SCC 119 and submitted that there could also have been customary method of adoption and this aspect of the matter has not been considered by the learned courts below. He also referred to the judgment passed by the Hon’ble Supreme Court reported in AIR 2017 SC 5327 which has been followed in the judgment passed by this Hon’ble Court reported in 2020 (1) East Cr. Cases 35 (Jhr) to submit that the basic elements to constitute an offence of cheating against the petitioner are wholly lacking under the facts and circumstances of this case.
6. On the point of sentence, the learned counsel for the petitioner relied upon the judgment passed by the Hon’ble Supreme Court reported in (2018) 1 SCC 142 and submitted that the petitioner has served CCL for 27 years right from the year 1979 to 2006 and has already lost the job. He also submitted that the petitioner has already remained in custody for a total period of 5 months 11 days and has faced the rigours of the trial since the year 2006 and at present, he is about 61 years of age and he has no criminal antecedent. He submitted that some lenient view may be taken on the point of sentence and it may be limited to the period already undergone. He f
