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Criminal Revision No.4305 of 2016

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

Criminal Revision No.4305 of 2016
Date of Decision: 03.07.2018

Surinder Kumar
….Petitioner

Versus

State of Punjab
….Respondent

CORAM: HON’BLE MR. JUSTICE RAMENDRA JAIN

Present: – Ms. Avin Kaur Sandhu, Advocate, for
Mr. H.P.S. Sandhu, Advocate, for the petitioner.
Mr. Amandeep S. Gill, DAG, Punjab.

RAMENDRA JAIN, J. (ORAL)

This petition is directed against the judgment of conviction and

order of sentence dated 23.12.2013 of the trial Court, whereby petitioner has

been convicted under Section 406 IPC in case FIR No.117 dated 02.04.2008

registered under Sections 406, 420 and 201 IPC at Police Station Phase 1,

Mohali, and sentenced to undergo rigorous imprisonment for six months

and to pay fine of `300/-. In default of payment of fine to further undergo

rigorous imprisonment for three days and the judgment dated 04.11.2016 of

the First Appellate Court, affirming the judgment aforesaid of the trial

Court.

According to prosecution, Gurbachan Singh, when did not

succeed in his business of selling motor spare parts/car accessories at

Mohali, sold out his goods to the petitioner on heavy discounted rates.

Initially, petitioner paid some amount to the complainant, but later on
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became dis-honest. Finally, an amount of `94,975/- was pending against

the petitioner, which he did not pay and accordingly he was booked and

challaned under Section 406 IPC.

The trial Court after holding trial, held the petitioner guilty under

Section 406 IPC and sentenced him as above vide impugned judgment of

conviction and order of sentence dated 23.12.2013.

Being aggrieved, petitioner filed appeal, which too was dismissed

vide impugned judgment dated 04.11.2016 by the First Appellate Court,

affirming the judgment of conviction and order of sentence aforesaid.

Learned counsel for the petitioner contends that both the Courts

below failed to appreciate that matter in dispute between the petitioner

accused and the complainant was of civil nature. The complainant knowing

that the limitation to file a suit for recovery has expired, intentionally lodged

false FIR against the petitioner, giving it a criminal colour. Lone

independent witness examined by the complainant turned hostile and,

therefore, both the Courts below ought to have acquitted the petitioner. For

how much amount offence of criminal breach of trust was committed by the

petitioner was not disclosed by the complainant. The complainant has

simply filed his complaint before the police in order to help him to recover

some amount from the petitioner and not for lodging any FIR against the

petitioner. Therefore, the police has illegally registered a case against the

petitioner. Petitioner is a first time offender.

On the other hand, learned State counsel supported the judgment

of conviction and order of sentence, submitting that petitioner has rightly

been convicted, therefore, present petition is liable to be dismissed.

Having given considerable thought to the submissions made by
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both the sides, this Court finds that instant petition is completely devoid of

any merit for the reasons to follow.

Complainant Gurbachan Singh as PW2 has produced document

Ex.PW2/A before the trial Court showing transaction in between him and

the petitioner-accused in the year 2003, which bore the signatures of the

petitioner. Signatures of the petitioner on the said document were got

compared by the police from his specimen signatures through Forensic

Science Laboratory, Punjab and vide report Ex.EXPX it was reported that

signatures in question and the specimen signatures are of one and the same

person.

In the instant case, in a span of 15 years, despite conviction of the

petitioner, he never intended to pay money to the complainant nor made any

such effort which proves his mens rea that from the very beginning he had

illegal intention to commit criminal breach of trust and defraud the

complainant. The mens rea of the petitioner in committing criminal breach

of trust is proved from the fact that he sold the goods entrusted to him by

the complainant and misappropriated the sale proceeds and thereafter kept

on dilly-dallying the payments to the complainant either on one pretext or

the other. Not only this, the petitioner just kept on making false promises to

the complainant.

It is needless to mention here that in a case of criminal breach of

trust, it is always the choice of the complainant either to exhaust civil

remedy or to initiate criminal action against the accused. Considering this

aspect of the matter, no fault can be found in the action of complainant

Gurbachan Singh for lodging criminal complaint against the petitioner.

There are concurrent findings of both the Courts below which do
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not suffer from any illegality or perversity.

Dismissed.

CJM, Mohali is directed to issue warrants of arrest against the

petitioner to serve the remaining sentence.

(RAMENDRA JAIN)
July 03, 2018 JUDGE
R.S.

Whether speaking/reasoned Yes/No

Whether Reportable Yes/No

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