Rameshwar Nath Tiwari v. Chandra Bhan Nath Tiwari — 1999 DIGILAW 20 (PAT)

Judgment I.P.Singh, J. 1. This memo of appeal has been filed against judgment and order dated 15.6.1988 passed by 6th Additional District & Sessions Judge, Siwan in Criminal Appeal No. 18 of 1986 acquitting respondent No. 1 by setting aside the conviction and sentences of six months under Section 420 of the Indian Penal Code, which was passed by Judicial Magistrate, 1st Class, Siwan in Trial No. 195 of 1986/C. Case No. 664 of 1990. 2. The brief fact of the case is that the respondent Chandrabhan Tiwary of village Chita Khal, P.S. Guthani, District Siwan came to the Darwaza of the appellant and asked for Rs. 100/- for an urgent work. The respondent Chandrabhan Tiwary also agreed to sell his plot No. 959 in Khata No. 451 measuring 11 dhur 6 dhurki for a consideration sum of Rs. 3,500/-. It was also decided that the appellant would pay Rs. 100/- to the respondent as advance and thereafter Rs. 500/- at the time of registry in presence of Registrar and rest money amounting to Rs. 2,900/- would be paid at the time of handing over of registration receipt to respondent by the appellant. According to this settlement the appellant paid Rs. 100/- to the respondent on 7.7.1980. Accordingly, the appellant purchased stamp worth Rs. 111/- in the Registry Office from Stamp Vendor. A Sale Deed, in question, was prepared by the deed writer in direction or respondent Chandra Bhan Tiwary, which was then signed by him. (Exhibit-1). Later all the witnesses also signed on the sale Deed. The Sale Deed was registered and appellant paid Rs. 500/- in presence of Registrar. Thereafter, the appellant came to know from Chandra Bhushan Tiwary that the respondent Chandrabhan Tiwary had already sold the land, in question, to him for a consideration of Rs. 3,500/- on 4.7.1980. A copy of Sale Deed dated 4.7.1980 executed in favour of Chandra Bhushan Tiwary was also procured to ascertain the facts in this way the appellant found himself cheated by the respondent and thereafter filed a complaint petition before the Chief Judicial Magistrate, Siwan, who took cognizance against the respondent under sections 420 and 120-B of Indian Penal Code. The case was later tried by Judicial Magistrate First Class, who convicted them under Section 420, IPC and sentenced the respondent Chandrabhan Tiwary R.I. for six months. The case was later tried by Judicial Magistrate First Class, who convicted them under Section 420, IPC and sentenced the respondent Chandrabhan Tiwary R.I. for six months. Against this order appeal was preferred before the Additional District Judge, Siwan, who acquitted the respondent by setting aside the conviction and sentence of the respondent by his impugned order. 3. In support of the cases, the complainant examined as many as six witnesses. PW 1 is Udayraj Nath Tiwari PW 2 is Jamadar Pandey; PW3 is Sahdeo Choudhary; PW 4 is Bachcha Nath Tiwari; PW 5 is Rameshwar Tiwari; and PW 6 is Panchdeo Pandey. PW 5 is complainant himself. PW 4 has not been produced for cross-examination. The witnesses supported the case in respect of sale of 11 dhurs and 6 1/2 dhurkis of having plot No. 959, Khata No. 451 for a sum of Rs. 3,500/-to the complainant. The mode and nature of the transaction have already been narrated. Therefore, it is useless to repeat the factual aspect of the case in detail once again. 4. The appellant has produced two sale deeds, one dated 7.7.1980 and the other dated 4.7.1980; first one was in favour of the appellant and the other one was in favour of one Chandra Bhushan Tiwary. In both the documents, the consideration money was shown to be Rs. 3,500/- and it was in respect of the same land. It is, thus, well established that for the same land the respondent No. 1 had executed two documents knowing that the second one is a fraudulent transaction. It is, therefore, quite clear from the conduct of the respondent No. 1 that he suppressed the matter altogether and he entered into a negotiation with the appellant to sell the land though it was sold by him to another person only three days before. The said documents are Exhibits 1/1 & 1/2. The trial Court in the facts and circumstances of the case came to the conclusion that the respondent No. 1 intentionally and deliberately cheated the appellant by alluring him to purchase a piece of land, which was sold to some one else earlier, and thereby induced the appellant to part with the money by way of the consideration of the land for wrongful gain. 5. 5. But in paragraph - 11 of the judgment the appellate Court disbelieved the finding of the trial Court solely on the ground that the trial Court had not considered about the share of the respondent and his co-sharers and opined that this being a Civil dispute the trial Court ought not to have convicted the respondent, and accordingly, passed the order impugned. 6. But this finding of the appellate Court is wholly misconceived against the factual aspect of the case. This was not a case to find out the share of the parties, nor it was a case of land dispute. The appellant was approached by the respondent for purchase of the land and the appellant in good faith entered into an agreement with him for the deal for a sum of Rs. 3,500/-without knowing the fact that the particular piece of land had already been sold to some one also only a couple of days back. In these circumstances, the Trial Court was not expected to have considered the history of the land, rather the plain and admitted facts were to be considered and seen, which it did. There cannot be any dispute that there are two sale-deeds in respect of the same land, which was sold to two different persons in a span of one week, even if it is assumed that there was some controversy in respect of the share/title of respondent No. 1, it has nothing to do within the present case The plain and simple conduct of respondent No. 1 for the very beginning was intended to cheat the appellant. 7. So far as the factual and other aspect is concerned, there was no good ground to interfere with the finding of the trial court. In view of the matter, the order of the trial Court convicting the respondent No. 1 is restored and the order of appellate Court is set aside. 8. Now coming to the question of sentence, regard being paid to the facts and circumstances of the case. I am of the view that the ends of justice would be met if the substantive sentence is altered to a fine only. Accordingly, the respondent No. 1 is ordered to pay fine of Rs. 2,000/- (Two thousand) to the appellant. 8. Now coming to the question of sentence, regard being paid to the facts and circumstances of the case. I am of the view that the ends of justice would be met if the substantive sentence is altered to a fine only. Accordingly, the respondent No. 1 is ordered to pay fine of Rs. 2,000/- (Two thousand) to the appellant. The amount of fine shall be deposited in the Court below by 31st March, 1999 to be paid to the appellant after proper verification; in default, the substantive sentence passed by the trial Court shall be restored automatically. 9. This appeal is allowed.