Zaki Ahmad vs State Of Chhattisgarh
2023 Latest Caselaw 875 Chatt

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                                                                              NAFR
                   HIGH COURT OF CHHATTISGARH, BILASPUR
                            Criminal Revision No. 1223 of 2022
      Zaki Ahmad, S/o Mohammad Moinuddin, aged about 36 years, R/o Sector 5,
       Gali No. 32, Quarter No. 8-A, Bhilai Nagar, District Durg, Chhattisgarh
                                                                       ---- Applicant
                                      Versus
      State of Chhattisgarh through, S.H.O. Police Station Newai, District Durg,
       Chhattisgarh
                                                              ---- Respondent/State

For Applicant : Ms. Muskaan Patwani, Advocate appears on behalf of Mr. B.P. Singh, Advocate For Respondent/State : Shri Anil Tripathi, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 10.02.2023

1. The applicant has filed the instant criminal revision under Section 397 read

with Section 401 of Cr.P.C. against the judgment dated 18.11.2022 passed

by the Additional Sessions Judge, Durg, District Durg (C.G.) in Criminal

Appeal No. 271/2019 whereby affirming the judgment of conviction and

order of sentence dated 04.11.2019 recorded by the learned Judicial

Magistrate First Class, Durg, District Durg in Criminal Case. No. 23182/2013

wherein the applicant has been convicted for commission of offence

punishable under Section 420 of IPC and sentenced to undergo R.I. for one

year & fine of Rs.2,000/-, in default further R.I. for thirty days.

2. Case of the prosecution, in nutshell, is that from 16.03.2011 to the date of

F.I.R. i.e. 29.03.2013, the present applicant collected Rs.4 lacs from the

complainant Uttra Devi Sonwani (PW-1) and some other persons for

providing service in the railways. A written complaint (Ex.-P/1) was lodged by

PW-1 on 29.03.2013 and consequently, the police registered the F.I.R. (Ex.-

P/4) on 29.03.2013 itself. Mobile phone and SIM card of the complainant

were seized vide Ex.-P/3. SMS details where there was some conversation

between the present applicant and the complainant, has been seized vide

Article 1 to Article 5 and same has been proved by Prem Prakash Awadhiya

(PW-7). The Investigating Officer recorded the statements of the witness and

thereafter, charge-sheet was filed.

3. The learned trial Court framed charge under Section 420 of IPC. The

applicant abjured the charge and pleaded non-guilty. The prosecution

examined 07 witnesses and exhibited 06 documents and Articles 1 to 5 to

bring home the offence committed by the applicant. Statement of the

applicant under Section 313 of Cr.P.C. was also recorded by the learned trial

Court. The trial Court after appreciation of oral and documentary evidence,

convicted and sentenced the applicant for the offence as mentioned in the

opening paragraph of this order.

4. The applicant preferred an appeal before the Sessions Court and same was

also dismissed against which he has preferred the instant criminal revision

against the judgment dated 18.11.2022 passed by the Additional Sessions

Judge, Durg, District Durg (C.G.).

5. Learned counsel for the applicant would submit that the ingredients of

Section 420 of IPC are missing and the applicant has not committed any

offence. She would further submit that the learned courts below have relied

upon the text message conversation through mobile as an evidence to

record conviction against the present applicant which cannot be relied upon

in absence of certificate according to Section 65 of the Evidence Act,

therefore, she would pray for acquittal of the present applicant. She would

also submit that if this Court affirms the conviction of the present applicant,

his sentence may be reduced to the period already undergone by him as he

has suffered six months of jail sentence.

6. On the other hand, learned counsel for the State would oppose the

submission made by learned counsel for the applicant. He would submit that

the prosecution by leading oral and documentary evidence, has proved the

ingredients of Section 420 of IPC and same is evident from the text message

conversation which has been exhibited as Article 1 to Article 5 and proved by

Prem Prakash Awadhiya (PW-7). He would submit that the instant criminal

revision deserves to be dismissed.

7. I have heard the learned counsel for the parties and perused the record as

well as judgments of the two courts below with utmost circumspection.

8. From record, it appears that a written complaint (Ex.-P/1) was lodged by

complainant- Uttra Devi Sonwani (PW-1) on 29.03.2013 making allegation

that the applicant was like a family member and in order to provide the job in

the railways, he took Rs.4 lacs from her and Rs.4 lacs from other persons

and thus, he has committed cheating. On such complaint, F.I.R. (Ex.-P/4)

was registered by the police. The prosecution has already exhibited Article 1

to Article 5 which are text message conversation between the applicant and

Y.K. Kulkarni, Anil Shrivastav & Krishna Rao. PW-1 Uttra Devi Sonwani

(complainant) has repeated the allegations made in her written complaint

and there is no substantial rebuttal in her cross-examination. PW-2 Toman

Lal Chaturvedi has stated that Rs.1.5 lacs was given by him to the present

applicant. PW-3 Somnath has stated that Rs.2 lacs was given by him to the

applicant. PW-4 Ali Akbar is a hearsay witness. PW-5 Kamal Kori is a

witness who captured a video clip while PW-1 was handing over Rs.1 lac to

the present applicant and his mobile has been seized vide Ex.-P/3. PW-7

Prem Prakash Awadhiya, Investigating Officer, has conducted the

investigation.

9. From the above pieces of evidence, it appears that certain amount was

handed over to the present applicant, but the prosecution could not prove

the text message conversation through the mobile phone between the

present applicant and other persons and even voice call between the

applicant and the complainant (PW-1) has not been proved as certificate

required under Section 65B of the Evidence Act has not been produced

before the learned courts below and no such witness has been examined to

prove it. Therefore, the documents viz Article 1 to Article 5 and seizure of

mobile phone wherein video clip was taken by PW-5, is not reliable.

10. Considering the fact that the present applicant had grabbed some money

from the complainant and in this regard both the courts below have affirmed

his conviction under Section 420 of IPC, in my opinion the courts below have

not committed any infirmity in recording so, therefore, the conviction

recorded under Section 420 of IPC and sentence so awarded to the

applicant are hereby affirmed.

11. Now considering the next submission made by learned counsel for the

applicant to reduce the sentence to the period already undergone by the

applicant.

12. Given the fact that the incident had taken place in the year 2011 and the

present applicant has already suffered about six months of jail sentence

during trial as well as during pendency of this criminal revision; there is no

minimum sentence prescribed under Section 420 of IPC and further there is

no criminal antecedents of the applicant as reported by the learned State

counsel, I am inclined to reduce the jail sentence awarded to the applicant

from one year to six months, however, fine part of the sentence is hereby

affirmed.

13. In the result, the revision is allowed in part while maintaining the conviction

of the applicant under Section 420 of IPC, his jail sentence is reduced to the

period already undergone by him, however, the fine amount imposed upon

the applicant with default stipulation by the trial Court shall remain intact.

The applicant is reported to be in jail. He shall be set at liberty forthwith, if

not required in connection with any other crime.

Sd/-

(Rakesh Mohan Pandey) Judge

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