Judgment:
Bankim N. Mehta, J.
1. The appellant Dwijendra Shirishbhai Manek-original accused No. 2 has challenged the judgment and order of conviction passed by the learned Additional Sessions Judge, Fast Track Court, Rajkot in Sessions Case No. 138 of 2001 on 6-8-2002 convicting this appellant for the offences punishable under Section 419, 465, 467, 468, 471 and 489A and 489B of Indian Penal Code, and directing him to undergo imprisonment of two years for the offences punishable under Section 467, 468, 471 and 489A and 489B of Indian Penal Code and to pay a fine of Rs. 5,000/- for each of the offences and in default thereof to undergo imprisonment of one year for each of the offences. The sentences of imprisonment were ordered to run concurrently.
2. According to the prosecution case, the appellant-original accused No. 2 cheated the complainant by pretending himself as 'Ramakant Joshi' inducing the complaint to deliver in all 211 pieces of various models of Jonty Quartz Watches and gave a stolen demand draft dated 5-8-2000 for Rs. 1,66,640/- drawn on State Bank of India, Godhra Branch against the purchase of the watches. The appellant-accused with co-accused in criminal conspiracy forged valuable security and committed forgery by using the said forged documents as genuine and kept the forged bank-note with an intention to use the same as genuine and used the stolen demand draft, forged the signatures and seals.
3. On the basis of complaint-Exh. 12 filed by the complainant Narendra Shamji Ramani before Rajkot 'A' Division Police Station. Offence was registered as Crime Register I No. 295 of 2000 and investigation was started. The appellant-accused was arrested along with the other co-accused on 2-9-2000.
4. On completion of the investigation, charge-sheet was laid before the learned Chief Judicial Magistrate, Rajkot on 30th January, 2001. Thereafter, the case was committed to the Court of Sessions Judge, Rajkot. Learned Sessions Judge, Rajkot framed charge Exh. 1 against the present appellant and other co-accused for the offences punishable under Sections 490, 465, 467, 489A, 489B, 468, 471, 120B read with 114 of Indian Penal Code. The appellant-accused denied the charge and demanded trial. Pursuant to that, the prosecution adduced evidence before the trial Court. At the end of trial, further statement of the appellant-accused under Section 313 of Code of Criminal Procedure was recorded. The defence of the appellant-accused was of total denial. At the end of trial, after hearing the learned Additional Public Prosecutor and learned Advocate for the appellant-accused, the learned trial Judge found the present appellant-accused guilty for the aforesaid offences and directed him to undergo aforesaid imprisonment. The other co-accused were acquitted. The appellant-accused has challenged the judgment and order of the learned Additional Sessions Judge, Rajkot in this appeal.
5. Learned Advocate for the appellant-accused Ms. Sadhna Sagar has submitted that the appellant has undergone the substantive sentence of imprisonment, but as he could not pay the amount of fine imposed by the trial Court, he is still in jail. The appellant is aged about 68 years and has no family or other relatives. He has no properties nor has any source of income, therefore, the appellant is not in a position to pay the fine. Therefore, he is required to undergo further five years imprisonment and at this age, it would be harsh. She has stated that she does not challenge the appeal on merits and has restricted her arguments only with regard to the amount of fine imposed by the learned trial Judge.
6. The learned Additional Public Prosecutor Mr. Pandya has supported the judgment and order of the trial Court and has submitted that while passing the order of fine, the learned trial Judge has considered all the aspects. He has also submitted that the appellant is involved in other similar offences, and hence, no lenient view should be taken. Therefore, the appeal is required to be dismissed.
7. As learned Advocate for the appellant Ms. Sadhna Sagar has not challenged the judgment and order of conviction on merits, this Court is not required to go into the details of the evidence adduced by the prosecution before the trial Court, It appears from the judgment that the learned trial Judge after holding the present appellant guilty for the offences charged against him, heard the appellant for sentence as required under Section 235(2) of Code of Criminal Procedure. The appellant pleaded that he is falsely implicated on the basis of transfer warrant and no sentence of fine should be imposed.
8. It appears from the judgment that after hearing the accused on sentence, the learned trial Judge awarded the sentence without appreciating the rival submissions and without considering the age and economic condition of the appellant. The learned trial Judge has inflicted the sentences without assigning reasons.
9. The object behind Section 235(2) of Code of Criminal Procedure is to see that when accused is convicted, just punishment is inflicted. It is not merely a formality, but it is a procedure which is required to be followed scrupulously. The Judge must make genuine effort to elicit from the accused all the information, and thereafter, considering all the factors inflict the sentence. The information such as age, family background, antecedent, financial position, etc., will have a bearing on the question of sentence. In the instant case, the learned trial Judge after hearing the accused on the question of sentence without assigning any reason has awarded the sentence. It appears that learned trial Judge has not made genuine effort to elicit from the accused required information nor has considered necessary factors to impose sentence of fine. There is no material to indicate that on what basis the fine of Rs. 5,000/- for each of the offence is imposed. It also appears that the learned trial Judge has not considered the age, family background and financial position of the appellant-accused at the time of passing the order of imposition of fine. The jail report dated 1-9-2005 produced before this Court indicates that the appellant was aged about 68 years. The appellant was arrested before five years on 2-9-2000, therefore, he must be around the age of 63 years at the time of his arrest. Therefore, while awarding the sentence of fine, the Court ought to have considered the age and financial background of the appellant-convict. It is true that the appellant-convict has not pleaded any ground for lesser punishment but the learned trial Judge ought to have tried to elicit the economic background of the appellant-accused.
10. It also appears from the impugned judgment that learned Additional Public Prosecutor submitted that there are several cases against the present appellant-accused pending in various other Courts, however, no material was placed before the Court in support thereof. It is stated by learned Advocate for the appellant-convict Ms. Sadhna Sagar under the instructions of her client that no other offences of similar nature are pending against the present appellant-accused in any Court. Even the jail report dated 1-9-2005 placed before this Court does not indicate that the appellant-accused is involved in other or similar offences. It appears that the economic condition of the accused is weak. He has no family members. Even looking to his age, he would not be in a position to get financial support to pay the fine. This would compel him to remain in jail for five more years. By the time, he comes out after completing the sentence, he may not be in a fit state of health. It would become difficult for him to rehabilitate in the society, and ultimately, he would be a burden to the society. The learned trial Judge ought to have considered all these factors. In view of this, the learned trial Judge has committed error in imposing fine of Rs. 5,000/- for each of the offence.
11. In view of the fact that the appellant-accused has undergone substantial period of sentence of imprisonment, if the order of sentence of fine passed by the learned trial Judge is maintained, the appellant-accused would be required to undergo further five years' imprisonment. Thereby, the appellant-accused would undergo imprisonment of ten years which is the maximum sentence. It is stated that by the learned Advocate for the appellant-convict Ms. Sadhna Sagar that the appellant was doing miscellaneous labour work and had no regular source of income. In my view, the sentence of fine imposed by the learned trial Court is harsh and excessive. Looking to the age, economic position and family background of the appellant, he would not be in a position to pay the fine imposed by the trial Court. If, the appellant-convict is unable to pay the fine, his imprisonment would extend for further period of five years, which, in my view, is unreasonable and excessive. Therefore, learned trial Judge has committed error in imposing the sentence of fine for each of the offences and this part of order warrants interference.
12. Considering the fact that the appellant-accused has almost undergone the substantive sentence of imprisonment and as conviction on that account is not challenged, the order of conviction and sentence of imprisonment imposed by the trial Court is maintained, but the order of sentence of fine imposed by the trial Court is required to be modified.
13. In view of above, the judgment and order of conviction passed against the appellant is sustained and confirmed. The order of conviction is modified and the appellant-accused-Dwijendra Shirishbhai Manek is directed to undergo imprisonment of five years for the offences punishable under Sections 467, 468, 471 and 489A and 489B of Indian Penal Code, however, the order of sentence of fine of Rs, 5,000/- for each of the offence is modified and the appellant-accused Dwijendra Shirishbhai Manek is directed to pay fine of Rs. 1,000/- for each of the offences and in default thereof to undergo seven days simple imprisonment for each of the offences. The learned trial Court has ordered that all the sentences should run concurrently, the said finding is maintained and that order is not modified.
14. In view of above, appeal is partly allowed. Conviction is maintained. Direct Service is permitted for the purpose of Sessions Court, Rajkot and Sabarmati Jail only.