Hindustan Times Limited vs Ashok Kumar Aggarwal And Anr.
1990 Latest Caselaw 4 Del

JUDGMENT

P.K. Bahri, J.

(1) This criminal revision is directed against judgment dated February 4, 1989, of an Additional Sessions Judge, New Delhi, by which he had dismissed. the appeal filed by the petitioner against the order of sentence dated September 4, 1986, passed by a Metropolitan Magistrate, New Delhi, by which instead of sentencing respondent No. 1-Ashok Kumar, he was released on probation for maintaining peace and being of good conduct for a period of two years on his furnishing bail bond in the sum of Rs. 10,000.00 (ten thousand) with one surety in the like amount, after he was convicted of an offence punishable under Section 477A of the Indian Penal Code.

(2) Shri Ashok Kumar Aggarwal was charged for offences punishable under section 120B and Sections 408, 477A read with Section 120B of the Indian Penal Code as well but he has been acquitted of those charges. The only question which arises for decision in this petition is whether the Metropolitan Magistrate was right in giving benefit of probation to the said convicted person. It appears that during the period April 1, 1971 to April 14, 12, there took place misappropriation of funds of the petitioner to the tune of Rs. 1,34, 649/50 P.

(3) Shri S. K. Dey was working as Cashier for the relevant period at the advertisement receipt counter of the petitioner and he used to receive the advertisements and the cash and issue necessary receipts and for some period, as he was on leave, another employee of the petitioner Daya Swarup Saxena substituted in place of S. K. Dey. The duty being performed by respondent No. I-Ashok Kumar Aggarwal was to calculate the totals in the register where entries used to be made in respect of the daily vouchers issued by the other two accused. He was working as a Computorist. The case of the prosecution was that they had entered into a conspiracy to defraud the petitioner of the amounts being received in the manner that wrong totals used to be made in respect of the amounts received and on the basis of the wrong totals showing less amounts, the amounts used to be deposited with the Main Cashier and in this way the said amount was misappropriated by these three accused,

(4) S. K. Dey had died during the course of the trial. Daya Swarup Saxena was acquitted of all the offences and only this respondent No. 1 was convicted of offence punishable under Section 477A of the Indian Penal Code of having made false entries regarding the totals. It is evident that the trial was protracted one and respondent No. 1 faced agony of these proceedings for about 17 years and as respondent No. 1 was acquitted of main charges, the Metropolitan Magistrate thought it fit to grant the benefit of Probation of Offenders Act read with Section 360 of the Code of Criminal Procedure to respondent No. 1.

(5) The learned counsel for the petitioner has vehemently argued that where huge amount of the petitioner has been misappropriated, the respondent No. 1 should not have been let off with probationary benefits and should have been awarded some substantial sentence. He has made reference to Mst' Sudesh Chabba v. State of Himachal Pradesh, J T 1987 (2) S.C. 246. In the said case the appellant was guilty of breach of trust, forgery and other allied offences punishable under Sections 409, 467, 468, 471 and 420 of the Indian Penal Code and the appeal was filed by the convict for getting the sentence 248 reduced from. 18 months imprisonment and a fine of Rs. 10.000.00 . The Supreme Court reduced the sentence of rigorous imprisonment to six months and awarded additional fine of Rs. ' 5,000.00 . However, in the present case, it is not the question of reduction of a sentence of a convicted person. The question is of enhancement of sentence by this court where probationary benefits have been given to respondent No. 1.

(6) In Alamgir and another v. State of Bihar, , it has been authoritatively laid down that it is unnecessary to emphasize that the question of sentence is normally in the discretion of the trial Judge, It is for the trial Judge to take into account all relevant circumstances and decide what sentence would meet the ends of justice in a given case. The High Court undoubtedly has jurisdiction to enhance such sentence but this jurisdiction can be properly exercised only if the High Court is satisfied that the sentence imposed by the trial Judge is unduly lenient, or that in passing the order of sentence, the trial Judge had manifestly failed to consider the relevant facts.

(7) In M/s. Kerala Transport Co .v.D.S.Soma Shekar and others, 1982 Cr. L. J. 1065, the question which was considered was whether the complainant in a police case could seek revision of the sentence. It was held by a Single Judge of the Karnataka High Court that after filing the final report under Section 173 of the Code of Criminal Procedure, the State is the complainant before the Magistrate and it becomes the duty of the State to prosecute the accused. While analysing the provisions of Sections 397 to 401 of ihe Code of Criminal Procedure, it was observed that the complainant has no right whatsoever beyond the right to bringing it to the notice of the court the facts as to whether there has occurred any illegality or impropriety in the finding, sentence or order recorded by a criminal court and while referring to Section 403 of the said Code, it was held that there is no right of hearing to be given to a complainant. There is no legal right of hearing conferred on the complainant. However, the question which has arises for decision before this Court was not raised in this judgment. It is true that if the sentence awarded by the Magistrate is to be held to be totally wrong, this Court has power to modify the order of the Magistrate. I have come across a judgment of the Punjab & Haryana High Court in Harjinder Singh v. State of Punjab, 1980 Plr 435 where a Single Judge for offences punishable under Sections 408 and 409 of the Indian Penal Code thought it fit to give benefit of Probation of Offenders Act. However, in that case the accused was aged about 25 years at the time of commission of the offence.

(8) In Didar Singh Head Constable v. State of Punjab, 1983 (2) Grimes 144, a Single Judge of the Punjab & Haryana High Court had given the benefit of Probation of Offenders Act, 1958, to a police official who had lost his job and had been convicted of an offence punishable under Section 494 of the Indian Penal Code.

(9) There is no judgment brought to my notice by the learned counsel for the petitioner which lays down that if an accused is convicted of an offence punishable under Section 477A of the Indian Penal Code, such an accused cannot be given benefit of Probation of Offenders Act read with Section 360 of 249 the Code of Criminal Procedure. It is clear that respondent No. I has lost his job and has also faced the agony of trial for about 17 years. So, it cannot be said that the Metropolitan Magistrate has committed any illegality or impropriety in granting the probationary benefits to respondent No. I instead of straightway sentencing him to undergo some substantial imprisonment, particularly when respondent No. 1 has not been convicted of main charges. I do not find it a fit case for interference with the order of the Magistrate. The Criminal Revision is, hence, dismissed.