No "Moral Boost" To Culprits: Karnataka High Court Refuses Benefit Under Probation Of Offenders Act To Woman Behind Gas Cylinder Scam In Village

The Karnataka High Court has upheld the conviction handed down to a woman for cheating villagers and collecting money from them on the pretext of distributing gas cylinders to them.

A Single judge bench of Justice Rajendra Badamikar partly allowed the appeal filed by Kousalya and modified the sentence of two years imprisonment imposed on the accused to six months.

However, the court rejected the prayer of the convict that since she is a lady, some leniency may be shown by remitting the sentence and praying to enlarge her under the provisions of the Probation of Offender Act, (PO) 1958.

The bench said “The accused-revision petitioner had cheated the villagers who were aspirants of getting gas cylinders at concessional rate and received consideration from them without providing gas cylinders. The prosecution has proved the allegations made against the accused beyond all reasonable doubt pertaining to the offence under Section 420 of IPC.”

It added “If in such matters the benefit of the PO act is extended, then it will give a moral boost to culprits to indulge in such offences. As such, in such matters it is unfair to extend the benefit of the provisions of the PO Act by giving a green signal to the culprit to proceed with similar acts. Hence, considering the conduct of the accused, the question of extending the benefit of the provisions of the PO Act does not arise at all.”

Kousalya had challenged the order of the trial court convicting her for the offence under Section 420 of IPC, which was confirmed by Additional District and Sessions Judge.

It was alleged by the complainant that in 2010 the accused introduced herself as an employee of Stree Shakthi Sanga in Mandya. She had induced the complainant and others that on behalf of Stree Shakthi Sanga she is going to distribute gas cylinders at the cost of Rs.2,500 for a single cylinder and Rs.5,000 for two cylinders. The accused by inducing the complainant and others collected Rs.44,000 from them with a dishonest intention under the guise of providing gas cylinders, but failed to provide the same, it was alleged.

The counsel for the petitioner argued that as per the case of the prosecution, the accused has induced witnesses of distributing of gas cylinders from Stree Shakthi Sanga, but none of these witnesses have enquired with Stree Shakthi Sanga regarding such a scheme and no acknowledgment was obtained for having paid such amount.

Further it was said that pancha witnesses have turned hostile and there are so many contradictions which are not properly explained by the prosecution.

The prosecution opposed the plea contending that all the material witnesses have supported the case of the prosecution and there is no reason for all the material witnesses to give false evidence against the accused and no evidence is lead to show that the witnesses have got any animosity against the accused.

Findings:

On going through the records the bench said “The arguments of the learned counsel regarding non enquiry with the Stree Shakthi Sanga cannot be a ground to discard the evidence of the prosecution witnesses as this is a case of inducement and cheating.”

It added that the alleged contradictions in evidence do not go to the root of the case so as to discard the entire case of the prosecution. "All the witnesses consistently deposed regarding paying the amount to the accused for delivery of gas cylinders and this aspect is not seriously challenged,” it said.

Further it remarked that the receipt was not obtained for having paid the amount cannot be a ground since under the excitement of getting the gas cylinder, the witnesses have paid the amount and since they are being rustic villagers, the question of insisting the acknowledgment of receipt does not arise at all.

Thus it held,

“Looking to these facts and circumstances it is evident that accused under the guise of providing cylinders to PWs.1 to 11 has induced them to part with the amount and without providing any gas cylinders cheated them. Hence, the ingredients of Section 420 of IPC are attracted to the case in hand and both the Courts below have properly appreciated the oral and documentary evidence. The judgment of conviction cannot be said to be erroneous or arbitrary so as to call for any interference.”

However, the Court was of the opinion that imprisonment awarded by the trial Court to the extent of two years appears to be too harsh, against amount of Rs.44,000 involved in the case.

"The sentence of imprisonment can be reduced from two years to six months by enhancing the fine from Rs.10,000 to Rs.25,000 which will serve the purpose,” it held.

Case Title: Kousalya And Government of Karnataka

Case No: CRL.RP.NO.764/2014

Citation: 2023 LiveLaw (Kar) 157

Date of Order: 12-04-2023

Appearance: Kemparaju, Advocate for Petitioner.

H.S Shankar, HCGP for Respondent.