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1996 DIGILAW 1399 (RAJ)

Roshan Lal v. State of Rajasthan

1996-12-12

M.A.A.KHAN

body1996
Honble KHAN,J – By his impugned judgment and order dated October 15,1992 the learned Sessions Judge. Bayana, Distt-Bharatpur has confirmed the conviction of sentence of the petitioner for the offences under section 420 and 467 I.P.C. On the basis of following facts :– (2) The petitioner was the recorded tenant of khasra plot Nos. 1332 admeasu- ring 3 bighas. 17 Biswas and 1333 admeasuring 4 Bighas 19 Biswas situate at weir Hadain Patti Distt-Bharatpur. It was alleged that the petitioner had mortgaged the said land, alongwith some other lands with the State Bank of Bikaner and Jaipur at Bharatpur on 13.11.1969 to secure a loan of Rs. 7,000/-. However, on 26.5. 1971 the petitioner sold the afore said land to PW-3 Jagdish Prasad for a consideration of Rs. 10,500/- and also delivered the possession thereof to the purchaser. It appears that the State Bank of Bikaner and Jaipur had unsuccessfully proceeded against the petitioner in the year 1972 -73 for recovery of its loan. In the year 1976 PW-3 Jagdish Prasad filed a report with police Station. Weir alleging therein that the petitioner had concealed the fact of his having mortgaged the land to the Bank before selling the same to him. On the basis of the report of PW- 3 Jagdish Prasad a case under section 420 I.P.C. was registered against the petitioner and one Ratan Lal Patwari (since deceased). Both, were charge sheeted. Since Ratan Lal Patwari died during the pendency of the case, the learned Magistrate tried the present petitioner for the offences under Sections 420 and 467, found him quilty of the same and convic- ted and sentenced him there-for in the manner stated above. (3) The main contention of Mr. Dinesh Kala, the learned counsel for the petitioner, is that the suit brought by the Bank against the petitioner had failed on theg round that no mortgage was proved to have been executed by the petitioner in favour of the Bank. (3) The main contention of Mr. Dinesh Kala, the learned counsel for the petitioner, is that the suit brought by the Bank against the petitioner had failed on theg round that no mortgage was proved to have been executed by the petitioner in favour of the Bank. It was further submitted that in order to secure the loan taken by the petitioner from the Bank other agricultural holdings has been mortgaged by the petitioner with the Bank and therefore, under these circumstances no dishonest or fraudulent intention in selling the land to PW-3 Jagdish Prasad can be attributed to the petitioner and he cannot be said to have committed the offence under section 420 I.P.C.The learned counsel further submitted that since the petitioner had not induced PW-3 Jagdish Prasad to alter, amend or modify any valu- able security he cannot be said to have committed offence under section 467 either. (4) The learned public prosecutor however, submitted that the two courts below have concurrently held that the petitioner had cheated PW-3 Jagdish Prasad by inducing him to deliver a sum of Rs. 10,500/- on making a false representation that the land in question was not mortgaged with anybody. It was submi- tted that the concurrent findings of fact should not be disturbed by this Court. (5)Ordinarily this court in exercise of its revisionary powers u/s 397 Cr.P.C. does not interfere with the concurrent finding of fact recorded by the Courts below unless, of course, it is observed by this court that such a finding is not based on legal evidence or that the inferences drawn from the legal evidence, brought on the record of the case, do not flow from such evidence. (6) In the instant case I find that it is not at all in dispute that the land of khasra Nos. 1332 and 1333 was sold by the petitioner to PW-3 Jagdish Prasad on 26.5.1971 for a consideration of Rs. 10,500/-. It is also not indispute that at the time of executing the sale deed in favour of PW-3 Jagdish Prasad the petitioner was the recorded tenant of the land in question and was thus having transferable rights therein. 1332 and 1333 was sold by the petitioner to PW-3 Jagdish Prasad on 26.5.1971 for a consideration of Rs. 10,500/-. It is also not indispute that at the time of executing the sale deed in favour of PW-3 Jagdish Prasad the petitioner was the recorded tenant of the land in question and was thus having transferable rights therein. The only question for consideration is whether at the time of the transfer of the land the petitioner had induced PW-3 Jagdish Prasad to deliver the sale -consideration to him after making a dis-honest or fraudulent concealment of the fact of the land standing mortgaged with State Bankof Bikaner and Jaipur at the relevant time. In this behalf it is also not in dispute between the parties that the mortgage deed allegedly executed by the petitioner in favour of the Bank was not found by a court of competent jurisdiction to be creating any mortgage.The Civil Court held that the mortgage deed was not executed and registered in accordance with the provisions contained in Section 59 of the Transfer of Property Act and Sec- tion 68 of the Indian Evidence Act. That apart, the evidence on record clearly reveals that after the execution of certain papers by the petitioner in favour of the Bank, the Bank had required the Tehsildar, Weir to make an entry in revenue record in regard to the mortgage of the land of khasra Nos. 1332 and 1333 in its favour. From the extract of the record of the mutation proceedings.It is evident that an entry to that fact was made in the relevant record on 15.5.1972. A note to that effect was also given in Jamabandi pertaining to Samvat year 2031. Relevant entries were also made in the khasra Girdavari pertaining to those years. Now the material placed on the record of the case reveals that as back as in 1972 an entry regarding mortgage of the land with the Bank had been made in the relevant revenue records.Thereafter, the parties had also litigated before the Civil Court. Before the Civil Court PW-3 Jagdish Prasad had filed his written statement wherein he had stated that the land was not mortgaged with the Bank and his enquiry from the concerned Patwari had not disclosed the facts otherwise. The letter written by the Bank to the Tehsildar Exhibit P-4 shows that besides the two khasra Nos. Before the Civil Court PW-3 Jagdish Prasad had filed his written statement wherein he had stated that the land was not mortgaged with the Bank and his enquiry from the concerned Patwari had not disclosed the facts otherwise. The letter written by the Bank to the Tehsildar Exhibit P-4 shows that besides the two khasra Nos. which are subject matter of the present litigation three other khasra Numbers measuring 5 Bighas 13 Biswas had also been mortgaged by the petitioner with the Bank to secure a debt of Rs. 7,000/- The question is whether on such material on record it can be held that the petitioner had fraudulently or dishonestly induced PW-3 to deliver his property, being Rs. 10,500 /- to him as sale consideration of the transferred land of khasra nos. 1332 and 1333. (7) The explanation below section 415 certainly says that concealment of a fact may amount to inducement.A fact which can be known by a man with due deligence and efforts which a prudent man is expected to show in such matters, cannot be said to have been fraudulently or dishonestly concealed. A plain reading of Section 415 I.P.C. shows that fraudulent or dishonest inducement by a person to the other is the main ingredient of the offence of cheating. The expression ``dishonestly has been defined in Section 24 I.P.C. as ``whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing `dishonestly. Similarly, the expression ``fraudulently has been defined in Section 25 as a person is said to do a thing fraudulently if he does that thing with intent to defraudbut not otherwise. To make out an offence of cheating the accused should be proved to have made to the complainant a state- ment which heknow to be false statement. The element of dishonest or fraudulent intention on the part of the accused should be there in his statement. (8) In the instant case the petitioner had mortgaged as many as five khasra Numbers with the Bank to secure a debt of Rs. 7,000/- only. As held by the Civil Court, the mortgage deed which was executed had no validity in law and was in effective qua the parties thereto.On report of the Bankent ries were also made in the relevant revenue record with regard to the alleged mortgage. 7,000/- only. As held by the Civil Court, the mortgage deed which was executed had no validity in law and was in effective qua the parties thereto.On report of the Bankent ries were also made in the relevant revenue record with regard to the alleged mortgage. The parties litigated before the Civil Court for years together. Even after such state of affairs PW-3 Jagdish Prasad waited for five years to lodge the FIR in the present case. The conduct of PW-3 jagdish Prased belies his version that he was induced by the peti- tioner to part with his money by making fraudulent or dishonest representation.Since a number of plots stood mortgaged with the Bank the petitioner might have not considered it necessary to mention the fact that the land stood mortgaged with the Bank as ultimately the mortgage deed was found to be invalid and ineffective in law. It may be mentioned that there were no attesting witnesses to the alleged mortgage deed. Therefore, a reasonable belief could have been honestly held by the petitioner that the land in question was not an encumbered one. At the Time of execution of sale deed the petitioner had delivered the possession of the transferred land to PW-3 Jagdish Prasad and such possession was never disturbed by him or other person or even by the bank officers. Under these circumstances, it is difficult to hold that the offence s under section 420 and 467 were committed in the present case. I, therefore, hold that in the facts and circumstances of this case, the mere non-mentioning of the fact of mortgage of the disputed land by the petitioner with the Bank, when such an mortgage had not been found to be a valid mortgaged by a Civil court, did not amount to `conceal ment within the meaning of the word used is explanation to section 415 I.P.C. Nor does the omission to state that fact in the sale-deed, in the facts and circumstances of this case, indicate any dishonest or fraudulent intention on the part of the petitioner. Therefore, the omission of that fact does not make the sale deed a false document so as to attract the offence punishable under section 467 I.P.C. The statement made by the petitioner in the sale-deed, therefore, does not attract the charge of cheating under section 420 or of forgery under section 467 I.P.C. (see Abdul Fazal Siddiqui Vs.Fateht Chand Hirawat (1). (9) At this stage, I may point out that the provisions contained in a penal statute arerequired to be strictly interpreted as they attract penal consequences to the sub- subject. Where two views of the construction of the provisions of a statute may possibly be held the view favouring the subject must be adopted(Niranjan Singh Vs. Jitendra Bhim Raj(2) SCC.76 and Bijaya kumae Agarwal Vs. State of Orrisa(3). (10) In view of the above discussion, the conviction and sentence of the petitioner for the offences under section 420 and 467 I.P.C. are hereby set-aside and the petitioner acquittedof both the offences. The amount of fine, if has been realized from him, shall be returned to him.The petition shall stand allowed.