Mota Ram vs State Of Haryana

him in selection as a Ward Servant provided he make 3

arrangement of Rs.2,000/-. Accordingly, Om Parkash

complainant paid a sum of Rs.2,000/- to the appellant at Bus

stand, Dabwali. After 2-4 days, the appellant represented to

Om Parkash that he could not get his work done with the said

amount of Rs.2,000/- and, therefore, he should arrange a

further sum of Rs.4,000/-. After 4-5 days, the complainant

Om Parkash paid Rs.4,000/- to the appellant at Civil Hospital,

Sirsa. The complainant Om Parkash visited Civil Hospital in

order to know the result of the selection and came to know

that he was not selected. Thus, he contacted the appellant

and asked him to return the amount paid for getting the

appointment. The appellant continued prolonging the matter

for 3-4 months and during this period the appellant

sometimes gave Rs.100/- to Om Parkash and sometimes

Rs.2,00/- and in this way he paid a sum of Rs.4700/- to him.

Appellant refused to return the balance amount of Rs1300/-

to the complainant. Thus, the complainant Om Parkash sent

application to the Chief Minister, Haryana, through a 4

registered letter raising his grievance. During this period the

appellant paid a sum of Rs.1,000/- and subsequently on

30.8.1988 the remaining balance amount of Rs.300/-. For the

payment of balance amount of Rs.300/-, the appellant got a

receipt executed by the complainant Om Parkash in presence

of several witnesses. Though the amount had been paid,

however on the complaint sent by the complainant to the Chief

Minister of Haryana, investigation was started and appellant

was charged under Section 5(2) of the Act and under Section

165 of the IPC.

3. During the trial, prosecution examined eight witnesses in

support of its case and the appellant/accused took the plea

that he had taken the loan from the complainant Om Parkash

which he had paid and he had falsely been implicated in the

case because of his enmity with one Mani Ram who belonged

to Congress Party and was in relation of the then Chief

Minister of Haryana. The Trial court after appreciating the

evidence reached the following conclusions:- 5

i) The complainant Om Parkash was unemployed and got

himself registered with the Employment Exchange. He was

called for interview for the post of ward servant in which he

was not selected.

ii) The complainant had paid initially a sum of Rs.2,000/-

and subsequently Rs.4,000/- to the appellant and it could not

be a loan for the reason that Om Parkash himself was

unemployed and not in a capacity to advance loan to any

person.

iii) The amount so advanced to the appellant by the

complainant could not be loan and it was an illegal

gratification. Sometimes Rs.100/- and sometimes Rs.200/-

had been refunded to the complainant by the appellant,

though the entire amount had been paid.

6

iv) Procuring a receipt for a sum of Rs.300/- and endorsing

it as a refund of loan in presence of several witnesses was not

normal behaviour of the appellant.

v) The question of involving him falsely at the behest of

Mani Ram was a false plea and concocted story as no enmity

or strained relationship between the appellant and said Shri

Mani Ram could be established nor the factum of any good

relationship between the said Shri Mani Ram and the

complainant could be proved.

4. In view thereof, the appellant was convicted and

sentenced as mentioned hereinabove.

5. Being aggrieved, the appellant preferred an appeal before

the High Court which was dismissed after affirming the

findings recorded by the trial court. Hence this appeal. 7

6. Learned counsel for the appellant Mr. Rajesh Sharma

submitted that in fact complainant had advanced a loan and it

was not an illegal gratification. The same has been returned

to the complainant and at the time of paying the balance loan

of Rs.300/-, a receipt was signed by the complainant as well

as 2-3 witnesses endorsing that this was the payment of

outstanding dues of loan advanced by the complainant to the

appellant and, therefore, the entire prosecution case is

improbable. More so, the punishment of one year rigorous

imprisonment and fine of Rs.500/- is disproportionate to the

charge proved against him and, therefore, the appeal deserves

to be allowed.

7. In spite of service none appeared for the State. Thus, we

have gone through the record of the case with the assistance

of the learned counsel for the appellant.

8. There is nothing on record on the basis of which it can be

held that the findings of facts recorded by the courts below are 8

perverse being based on no evidence or contrary to the record.

In fact not even a suggestion had been given and made to the

complainant Om Parkash that he was in a position to lend

money to the appellant. In cross-examination the complainant

rather stated that complainant had borrowed the amount from

his brother in law - Mohan Lal. Learned counsel for the

appellant could not satisfy the court that the complainant was

in a position to lend money to the appellant.

9. The question of having the receipt only for the balance

amount of Rs.300/- in presence of several witnesses itself

reveal that it was not a normal human behaviour. No

explanation could be furnished by learned counsel for the

appellant that as if the appellant had not taken the receipt for

the amount earlier paid by him to the complainant what was

the occasion to get the receipt from him in presence of several

witnesses only for a sum of Rs.300/-. Therefore, it is evident

that the appellant wanted to create some evidence to show 9

that money so paid to him was a loan and not an illegal

gratification.

10. We do not see any infirmity in the concurrent findings

recorded by the courts below and the appeal is liable to be

dismissed.

11. So far as the issue of sentence is concerned, in view of

the provisions of Section 5(2) of the Act, the minimum

sentence a court could award is one year and it may extend to

7 years and a fine can also be imposed. None of the grounds

submitted by learned counsel for the appellant that it was a

very old case; appellant had already served about 6 months in

jail; Appellant had refunded the amount taken by him from

the complainant; the complainant himself had been abettor

and could have been a co-accused for an offence punishable

under Section 109 IPC, can be the mitigating circumstance for

which the Court may reduce the sentence taking into

consideration the proviso to Section 5(2) of the Act. As the 10

courts below have awarded the minimum sentence prescribed

under the Act, the facts of the case do not warrant any

interference with the quantum of sentence also. The appeal

lacks merit and is, accordingly, dismissed.

...........................................J. (Dr. Mukundakam Sharma)

...........................................J. (Dr. B.S. Chauhan) New Delhi;

May 28, 2009.

11 12

Digital Proforma

1. Case No. : Criminal Appeal No. 1329 of 2003

2. Date of decision : 28.5.2009

3. Cause Title : Mota Ram vs. Stae of Haryana

4. Coram : Hon'ble Dr. Justice Mukundakam Sharma Hon'ble Dr. Justice B.S. Chauhan

5. Date of C.A.V. : 21.5.2009

6. Judgment delivered Hon'ble Dr. Justice B.S. Chauhan by :

7. Nature of judgment : Non-reportable Whether reportable 13 14