Dharam Veer, J.@mdashBoth the above-said appeals have been preferred by the appellants/accused against the common judgment and order dated 27.2.1991 passed by Special Judge (Sessions Judge), Pauri Garhwal and the incident in question is also one and the same, hence both the appeals are being disposed of by this common judgment and order.
2. Both the appeals, preferred by the appellants'' u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed against the judgment and order dated 27.02.1991 passed by Special Judge (Sessions Judge), Pauri Garhwal Camp at Kotdwara in Special Criminal Case No. 05 of 1987, State v. Srikant Gupta and Ors. by which the appellants/accused have been convicted u/s 3 r/w Section 7 of the Essential Commodities Act, 1955 (hereinafter to be referred as the Act) for violating the Section 2(a) of U.P. Kerosene Control Order, 1962 and each of them was sentenced to six months'' R.I. However, the appellant/accused Srikant Gupta was not found guilty for committing violation under U.P. Essential Commodity Price, Display, Stock and Distribution Order, 1977.
3. I have heard learned Counsel for the parties and perused the entire material available on record.
4. Chief Judicial Magistrate, Pauri Garhwal vide report dated 15.5.2009 has informed that the appellant/ accused Chandan Singh has died on 10.03.2002. As such, the appeal filed by appellant/accused Chandan Singh stands abated.
5. In brief the prosecution case is that on 30.4.1985 P.W.4 Rajendra Singh Pundir, Supply Inspector inspected the shop of appellant/accused Srikant Gupta, retail dealer of kerosene oil and found that five manufactured and fabricated cash memos were prepared in the stock register of appellant/accused Srikant Gupta in which false/fictitious sale of kerosene oil was made but the same was not found entered in the stock register of the appellant/accused Srikant Gupta. Through Cash Memo No. 2280 which has been issued for kerosene oil, the name and address of the seller was not mentioned nor any date was mentioned. After verifying the cash memo from District Cooperative Development Federation Ltd. (D.C.D.F.), in the counterfoil of memo book, it was found that the name of appellant/accused Srikant Gupta has been written by separate ink on 26.3.1985. Likewise in Cash Memo No. 1844 dated 2.3.1985 which has been issued for 880 liters of sale of kerosene oil in the name of Maheshwari Gupta, Kotdwar, it was found that there is no retailer in the name of Maheshwari Gupta in the Kotdwar, which means that the said cash memo has been issued in false name. By all the five vouchers, in total 3500 liters of kerosene oil was found misused by not entering the same in the stock register by the appellant/accused Srikant Gupta. Further, on the date of inspection there was no list of stock and rates hanging on the shop of appellant/accused Srikant Gupta. Thereafter, the Supply Inspector took all the above-said cash memos, sales register and stock register in his possession and obtained the signatures of appellant/accused Srikant Gupta on the last entry on 30.4.1985. The Supply Inspector also obtained the report from DCDF about the sale made by way of said cash memos. Hence it was recommended for cancellation of retailing licence of kerosene oil. It was further recommended by the Supply Inspector to take necessary action against the DCDF with respect to the 880 liters of kerosene oil issued in the forged name of Maheshwari Gupta by way of Cash Memo No. 1844. With the above-said averments, the P.W.4 Rajendra Singh Pundir, Supply Inspector submitted his inspection report to D.S.O. Pauri on 17.5.1985, i.e. Ex.Ka-5. After seeking instructions from D.S.O., he lodged the FIR on 18.1.1986 at 2:20 P.M. at P.S. Kotdwar, Dist. Pauri Garhwal, i.e. Ex.Ka-6. On the basis of this report, Constable Clerk Fakir Chand prepared the Chik FIR, i.e. Ex.Ka-7. The entry was also made in the G.D., the copy of which is Ex.Ka-8. The investigation of this case was entrusted to P.W.5 S.I. Mohd. Javed Khan. Cash memo dated 2.3.1985 issued in favour of Maheshwari Gupta is Ex.Ka-1; cash memo (without date and name and address) of 760 liters of kerosene oil is Ex.Ka-23; cash memo dated 4.1.1985 issued in favour of appellant/accused Srikant Gupta by DCDF is Ex.Ka-24, cash memo dated 2.3.1985 is Ex.Ka.25 and cash memo dated 30.3.1985 issued in favour of appellant/accused Srikant Gupta is Ex.Ka-26. The I.O. during the course of investigation prepared the site plan of shop of appellant/accused Srikant Gupta, i.e. Ex.Ka-9. He also prepared the site plan of the office of M/s DCDF, Kotdwar, i.e. Ex.Ka-10. The I.O. also obtained the sanction from the D.M. Garhwal for prosecuting the appellants/accused Srikant, Chandan Singh and Parma Singh, i.e. Ex.Ka-11 u/s 3/7 of the Act. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet in the court, i.e. Ex.Ka-12.
6. To prove its case the prosecution has examined P.W.1 Mahesh Chandra Gupta, P.W.2 Bhagwati Prasad, P.W.3 Kunwar Singh, Asstt. Accountant of District Cooperative Development Federation Ltd., P.W.4 Rajendra Singh Pundir, Supply Inspector and P.W.5 S.I. Mohd. Javed Khan, I.O. of the case, who investigated the crime.
7. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. They have denied the allegations made against each of them. They did not produce any oral evidence. But in documentary evidence, they have adduced two letters of Secretary of District Cooperative Development Federation Ltd. as Ex.Kha-1 and Ex.Kha-2 respectively.
8. After hearing counsel for the parties and appreciating the material on record, learned Special Judge (Sessions Judge) Pauri Garhwal Camp at Kotdwara vide judgment and order dated 27.2.1991 convicted and sentenced the appellants/accused as discussed above. Against the aforesaid judgment and order, the present appeal has been preferred.
9. To prove its case, the prosecution has examined P.W.1 Mahesh Chandra Gupta who has stated that on 2.3.1985 he was not supplied any kerosene oil by appellant/accused Chandan Singh, who was the salesman in DCDF at that time. He further stated that there is no person in the name of Maheshwari Gupta in Garighat as a licencee retail seller of kerosene oil. He further stated that he used to make entry in the stock register about the receiving of retail kerosene oil regularly. He also denied his signatures over the Cash Memo No. 1844 dated 2.3.1985 nor any of his agent (Karinda) made his signatures and nor any of his agent was in the name of Maheshwari. He also proved the original cash memo Ex.Ka-1. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable.
10. P.W.2 is Bhagwati Prasad who was also a Govt. Licence Dealer of kerosene oil in Kotdwara, has stated that on 28.1.1985 he received 660 liters of kerosene oil from DCDF''s salesman Parmanand. An entry to this effect was made by him in the stock register, i.e. Ex.Ka-2. He further stated that through cash memo No. 1218 he did not receive 100 liters of kerosene oil on 28.1.1985 and in duplicate memo Ex.Ka-3, neither he nor his any employee had signed on it. Even there is no entry of taking 100 liters of kerosene oil in his stock register. Supply Inspector had taken his stock register into possession. He also gave an application to the Supply Inspector, Kotdwar, i.e. Ex.Ka-4. He also stated that on the duplicate memo Ex.Ka-3, signatures of appellant/ accused Parma Singh were there. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable and believable.
11. P.W.3 is Kunwar Singh who has stated that in January, 1985 he was the Assistant Accountant in D.C.D.F. Kotdwar. In that period, appellant/accused Parma Singh and Chandan Singh were the salesmen of D.C.D.F. Ltd. who used to distribute the kerosene oil from the Tanker of D.C.D.F. to the Licensee shop- keepers and these salesman used to give cash memo to the such shop keepers after realizing the price of kerosene oil distributed by them and they also used to deposit the daily sales of the such kerosene oil to the Cashier and used to obtain receipt for it and also used to make entries of such daily sales book. After that he used to make entry in the cash book and stock register. In the daily sales register, only the quantity of kerosene oil and cash memo number was being mentioned and the name of purchaser was not necessary to be mentioned. In the cash memo, name and address of the purchaser and his signatures were necessary and after completion of cash memo, the same was deposited in the office and thereafter the new cash memo book was being issued to the salesman. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable and believable.
12. P.W.4 is Rajendra Singh Pundir, Supply Officer who has proved the inspection report Ex.Ka-5 prepared by him about the inspection done by him on 30.4.1985. He found five cash memos from the shop of appellant/accused Srikant Gupta. The entry of the purchase made through those cash memos was not made by the appellant/accused Srikant in the stock register. Those cash memos are paper Nos. 47/K-1 to 47-Ka/5. Thereafter, he lodged the FIR in the police station i.e. Ex.Ka-6 against the appellants/accused Srikant Gupta and Chandan Singh and Parma Singh (employees of DCDF). He also inspected the receipt books of DCDF and also checked the same with cash memos of counter foils of two salesmen. During inspection, Bhagwati Prasad (P.W.2) also gave a letter Ex.Ka-4 to him. He also stated that the appellants/accused have violated the conditions of the Kerosene Control Order. This witness was also cross- examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable and believable.
13. P.W.5 is S.I. Mohd. Javed Khan who has stated that on 18.1.1986, R.S. Pundir, Supply Inspector, Kotdwar submitted a written report in the police station, i.e. Ex.Ka-6. On the basis of that report, Constable Fakir Chand prepared Chik FIR, i.e. Ex.Ka-7. The entry was also made by him in the G.D., the copy of which is Ex.Ka.8. The investigation of this case was entrusted to him. He inspected the shop of appellant/accused Srikant and prepared the site plan, i.e. Ex.Ka-9. On the same day he also inspected the office of DCDF and prepared the site plan, i.e. Ex.Ka- 10. He also obtained the sanction for prosecuting the appellants/accused from the District Magistrate, Pauri, i.e. Ex.Ka-11. During the course of investigation he recorded the statements of witnesses and after completing the investigation he filed the charge sheet, i.e. Ex.Ka-12.
14. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. They have denied the allegations made against each of them. They did not produce any oral evidence. But in documentary evidence, they have adduced two letters of Secretary of District Cooperative Development Federation Ltd. as Ex.Kha-1 and Ex.Kha-2 respectively.
15. Sri G.S. Negi and Sri Lalit Belwal, learned counsel for the appellants/accused have argued that as per the evidence discussed above, the prosecution has not proved its case against the appellants/accused beyond reasonable doubt. I do not find any force in this argument.
16. As per the above-said evidence it is proved that on 30.4.1985 when the P.W.4 R.S. Pundir, Supply Inspector inspected the shop of appellant/accused Srikant Gupta, he found that five manufactured and fabricated cash memos were kept in the stock register of appellant/accused Srikant Gupta in which false/fictitious sale of kerosene oil was made, however the same was not found entered in the stock register of appellant/accused Srikant Gupta. Even in Cash Memo No. 2280, name and address of seller as well as date was not mentioned and even in cash memo No. 1844, a fictitious name of sale in the name of one Maheshwari Gupta was shown, however there was no person in the name of Maheshwari Gupta in the Kotdwar. Even when the P.W.4 R.S. Pundir checked those cash memos and registers of appellant/accused with the cash memo book maintained by the appellants/accused Chandan Singh and Parma Singh, he found that this was not entered in this stock register of District Cooperative Development Federation Ltd (DCDF). Therefore, the two salesmen also colluded with the appellant/accused Srikant in not maintaining any proper account of the distribution of kerosene oil. Therefore, all the appellants/accused were rightly been convicted u/s 3 r/w Section 7 of the Act for violating the condition of Section 2(a) of U.P. Kerosene Control Order, 1962. The prosecution has been fully successful in proving its case against the appellants/accused beyond reasonable doubt for the offence punishable u/s 3/7 of the Act and I concur the view taken by the trial court in convicting the appellants/accused as discussed above.
17. Learned Counsel for the appellants lastly submitted that the appellant-accused Srikant Gupta is 60 years'' old and appellant Parma Singh is now 53 years old man and they are now ailing with serious diseases. It was further submitted that appellant/accused Srikant Gupta has remained in Jail for about one month and appellant/accused Parma Singh remained in jail for 15 days. It was further submitted that the appellants are the first offenders and therefore it was prayed that the appellants/accused may be released on probation of good conduct u/s 360 Cr.P.C. Reliance is placed on paras-3 and 4 of an Order rendered by Hon''ble Supreme Court in the case of "Harivallabha and Anr. v. State of M.P." reported in 2005 SCC (Cri) 1518, which reads as under:
3. Learned Counsel appearing on behalf of the appellants submitted that the appellants are first offenders and in the facts and circumstances of the case they should have been dealt with under the provisions of Section 360 of the Code of Criminal Procedure, 1973 (for short "the Code") and the High Court reduced the sentence of imprisonment from three years to three months without recording any reasons, as required u/s 361 of the Code, which lays down that for special reasons to be recorded, a court can refuse to release a person on probation of good conduct u/s 360 of the Code. In our view, in the facts and circumstances of the present case, the appellants should have been dealt with under the provisions of Section 360 of the Code.
4. Accordingly, the appeal is allowed in part and while upholding the conviction and sentence of fine awarded to the appellants, sentence of imprisonment awarded against them is set aside and the trial court is directed to deal with them under the provisions of Section 360 of the Code. The appellants, who are on bail, are discharged from the liability of bail bonds.
18. Keeping in view all the facts and circumstances of the present case as discussed above, I am of the view that the accused/appellants be released on probation of good conduct u/s 360 of Cr.P.C.
19. Accordingly, both the appeals are allowed in part and while upholding the conviction of the appellants, sentence of imprisonment for six months'' R.I. awarded against appellants/accused Srikant Gupta and Parma Singh is set aside and the trial court is directed to deal with them under the provisions of Section 360 of the Code. The appellants, who are on bail, are discharged from the liability of bail bonds.
20. Let the record of the case be sent back immediately to the trial court concerned for compliance of the order.
