Parminder Khetarpal v. State of NCT Delhi & Anr.

1. The present revision petition has been preferred under Section 397 read with Section 401 and 482 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”) against the impugned judgment and order dated 14.03.2018 passed by learned Special Judge (PC Act), CBI-03, Dwarka District, Courts, Delhi (“Appellate Court”) in Criminal Appeal NO. 05/2018, to the extent that respondent no. 2 has been granted benefit of probation, and praying to uphold the order on sentence dated 19.12.2017 passed by the learned Trial Court.

2. The brief facts of the present case are that petitioner had filed a complaint under Section 138 Negotiable Instruments Act, 1881 (“NI Act”) against the accused/respondent no. 2 and after completion of trial, learned Trial Court vide order dated 16.11.2017 convicted respondent no. 2, and vide order dated 19.12.2017 sentenced him to undergo simple imprisonment for a period of two months and to pay a compensation of Rs. 80,000/- to the complainant under Section 357(3) Cr.P.C within 30 days from the date of order and in default of payment of compensation to the complainant, respondent no. 2 was to undergo simple imprisonment for a period of six months.

3. Aggrieved by the order of conviction dated 16.11.2017 and order on sentence dated 19.12.2017, respondent no. 2 preferred an appeal bearing CA No. 05/2018 assailing the said orders. Learned Appellate Court vide judgment dated 14.03.2018, while upholding the conviction of respondent no. 2 under Section 138 NI Act, 1881, partly set aside the order on sentence dated 19.12.2017, and extended the benefit of probation to respondent no. 2. The relevant portion of judgment dated 14.03.2018, impugned before this Court, is as under:

4. The petitioner being aggrieved by aforesaid portion of the impugned order, to the extent of grant of probation to respondent no. 2, has filed the present petition.

5. The petitioner, who is present in person, argues that the order vide which benefit of probation has been extended to respondent no. 2 is against the law as merely not being a previous convict cannot be a ground for the grant of probation. It is also argued that learned Appellate Court failed to appreciate that respondent no. 2 who was tenant of the present petitioner was in illegal possession of the property for 36 months and possession was handed over to the petitioner only in January 2018 and that too after the petitioner had been compelled to approach the Hon'ble District Court, Dwarka by filing a suit for permanent injunction, possession, recovery of arrears of rent, mesne profits and damages for illegal use and occupation of the petitioner’s property.

6. It is further argued by the petitioner that respondent no. 2 intentionally did not hand over the possession of the rented property for nine months even after vacating the property and has still not paid the arrears of rent as due to the petitioner till date which is approximately Rs. 5,22,000/- along with the maintenance charges of the flat since January 2014 amounting to Rs. 61,435/-. It was contended that learned Appellate Court ignored the fact that respondent no. 2 has been in illegal possession of the petitioner’s property from February 2015 to January 2018 which has caused grave financial hardships and harassment to the petitioner and his family members.

7. On the other hand, learned counsel for respondent no. 2 stated that since the entire compensation amount has already been paid to petitioner under Section 357(3) Cr.P.C., learned Appellate Court had rightly set aside the sentence as respondent no. 2 has clean antecedents. It is also stated that respondent no. 2 had been directed to compensate the petitioner by payment of Rs. 80,000/- which has already been paid and accepted by the present petitioner. It is stated that present petition has been filed with mala fide intention and, therefore, it has been prayed that petition be dismissed with cost.

8. The arguments and contentions raised on behalf of both the parties have been heard.

9. In the given set of facts, it will be useful to first refer to Section 360 of Cr.P.C. and Section 4 of Probation of Offenders Act,1958 (“P.O. Act”). Section 360 of Cr.P.C. reads as under:

Section 4 of the P.O. Act, 1958 reads as under: “4. Power of court to release certain offenders on probation of good conduct.—(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.”

10. Applying the provisions of Section 4 of the P.O. Act, 1958 in Lakhvir Singh v. State of Punjab, (2021) 2 SCC 763, it was held that while granting beneficial provisions wide interpretation should be given and not a restrictive view. Similarly, while considering the nature of offence, character of the offender and his good conduct, a lenient yet rational view is to be taken by courts taking into account the surrounding circumstances. Provisions under law provide certain grounds which needs to be considered before granting probation. The conduct of the accused is of the prime importance apart from other factors while deciding whether the benefit is to be given or not.