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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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