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2003 DIGILAW 505 (GAU)

Kandarpa Pathak v. Ujjal Pada Ganguly

2003-11-13

AMITAVA ROY

body2003
JUDGMENT Amitava Roy, J. 1. The judgment and order dated 30.7.2001 passed by the learned Additional Chief Judicial Magistrate, Kamrup, Guwahati in case No. 3534C/99 convicting the petitioner Under Section 417 IPC and sentencing him to pay a fine of Rs. 100 in default S.I. for 10 days in under challenge in the present revision petition. 2. I have heard Mr. S.R. Bhattacharyya, learned senior counsel for the petitioner as well as Mr. N.C. Das, learned senior counsel for the opposite party. 3. A complaint was filed by the present opposite party before the learned Chief Judicial Magistrate, Kamrup, Guwahati contending that he had sold 1 Bigha, 1 Katha, 6 lechas of land to one Bhajanlal Agarwalla leaving 1 Katha at the Western Side of the land sold to be used as a common path. The purchaser, however, constructed a building encroaching upon the unsold land of the opposite party. The purchaser also constructed a pucca drain and a boundary wall on the said land. It was alleged that those were done at the instance of the accused-petitioner who at the relevant time was the Lat Mandal under the Circle Officer, Kamrup Guwahati and had furnished a false report to the effect that the land in dispute belongs to Bhajanlal Agarwalla as the same had also been sold to him. It was further alleged that the accused-petitioner had forcibly entered into the land of the opposite party and had surveyed the same without serving any notice on him and thereafter handed over the disputed land to Sri Bhajanlal Agarwalla, by deliberately making wrong measurements. This was not known to the opposite party and he can come to know only when Sri Agarwalla started digging earth of construction of the drain and the boundary wall. 4. The learned court below took cognizance of the offence Under Section 417/427 IPC against the accused-petitioner and issued process against him. After the appearance of the accused-petitioner, the offence was explained to him to which he pleaded "not guilty". Trial was conducted in course of which the prosecution examined five witnesses and the accused petitioner examined two witnesses including himself Under Section 313 Cr.PC. After recording his statements by the impugned judgment and order, the accused-petitioner was convicted Under Section 417 IPC and sentenced as above. He was however acquitted of the charge Under Section 427 IPC. 5. A preliminary objection was raised by Mr. After recording his statements by the impugned judgment and order, the accused-petitioner was convicted Under Section 417 IPC and sentenced as above. He was however acquitted of the charge Under Section 427 IPC. 5. A preliminary objection was raised by Mr. Das learned counsel for the opposite party con tending that in the face of Section 374 Cr.PC, the present revision is not maintainable in law. The impugned judgment according to him is appealable and therefore no revision would lie. 6. Mr. Bhattacharyya, learned counsel for the accused-petitioner has drawn the attention of this court to Section 376 of the Cr.PC from which it appears that no appeal lies in petty cases. Mr. Bhattacharyya has contended that in view of Sub-clause (c) of Section 376 Cr.PC no appeal could have been filed against the impugned judgment and order. As the findings and conclusions of the learned trial court are on the face of the record not sustainable, the revision has been filed for preventing miscarriage of justice. 7. A plain reading of Section 376 Cr.PC clearly bears out the contention of the learned senior counsel. As the sentence is one of fine of Rs. 10.0 in view of Sub-clause (c) of Section 376 of the Code read with Clause (ii) appearing under the proviso, no appeal would lie against the impugned judgment and order. The revision petition is thus maintainable and having been admitted the same requires disposal on merit. Mr. Bhattacharyya has argued that having regard to the allegations made in the complaint as well as the evidence on record no ingredient of the offence of cheating Under Section 415 IPC has been established and, therefore, the impugned judgment and order is ex facie illegal and liable to be interfered with by this court. He urged that, the petitioner at the relevant time was under the Circle Officer, Kamrup and on the instructions of his superior officer, he surveyed and measured the disputed land in question and therefore the allegations that he had no authority to survey and demarcate and that he had encroached thereupon are absolutely unfounded and without any basis. 8. Mr. Bhattacharyya, in support of his submission also relied on the evidence of the defence witnesses including that of the accused-petitioner. 9. Mr. 8. Mr. Bhattacharyya, in support of his submission also relied on the evidence of the defence witnesses including that of the accused-petitioner. 9. Mr. Das, on the other hand, has submitted that, the accused-petitioner trespassed into the land of the O.P. and purportedly made the measurements without any authority of law and without issuing prior notice to the complainant up, deliberately handed over the disputed land to Sri Agarwalla and thereby caused wrongful loss to the complainant O.P. According to him, the ingredients of the offence of cheating had been fully proved and, therefore, the conviction and sentence cannot be faulted with. 10. The ingredients of the offence of cheating Under Section 415 IPC have been succinctly set out by the Apex Court in Ram Jas v. State of U.P.,: (1970) 2 SCC 740 is hereunder : "(i) there should be fraudulent or dishonest inducement of a person by deceiving him ? (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property ; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived ; and (iii) In cases covered by (ii)(b), the act or omission should be one which causes or is lively to cause damage or harm to the person induced in body, mind, reputation or property." 11. It would therefore appear from the ingredients of the offence of cheating that there should be a fraudulent or dishonest inducement of a person by deceiving him, whereby the person so deceived should be either included to deliver any property to any person or consent retention thereof by the other person. The offence has also within its sweep. The eventuality where a person so deceived is intentionally induced to do or omit to do anything which he would not do or omit to do had he not been so deceived and further by such act or omission the person induced suffers or is likely to damage or harm in body, mind, reputation or property. The essence of the offence of cheating therefore, is deception of a person by fraudulent or dishonest inducement by another. In absence of the above ingredient the offending act would not constitute cheating. 12. The essence of the offence of cheating therefore, is deception of a person by fraudulent or dishonest inducement by another. In absence of the above ingredient the offending act would not constitute cheating. 12. Reverting to the case in hand, the petitioner-accused would be guilty of the offence of cheating if it is proved that he had fraudulently or dishonestly induced the opposite party whereby he had been deceived and consequently was made to deliver the disputed land to Shri Agarwalla for which the opposite party has suffered in body, mind, reputation or property. 13. The contents of the complaint petition have been noticed hereinabove. The same do not contain even a whisper of such inducement. It would, however, be apposite to assess the evidence to ascertain whether the ingredients of the above offence have been furnished to warrant conviction of the petitioner under the aforementioned Section of law. 14. The opposite party-complainant in his evidence stated that he had sold 1 bigha, 1 katta, 6 lechas of land to Mr. Agarwalla leaving an area of 1 katha in the concerned Dags. The purchaser at the time of raising his wall encroached upon a portion of the land not sold. As the purchaser did not regularise his possession, he filed a suit and obtained an order of injunction. The purchaser then submitted an application in the office of the Sub-Deputy Collector for survey and demarcation of the land. The survey party including the petitioner thereafter surveyed the land and fixed the boundaries thereof. The purchaser, however, removed the boundary marking for which the opposite party-complainant brought this to the notice of the Circle Officer. Thereafter on 2.7.1999 the petitioner-accused visited the land and without any notice to him (witness) delivered 1 katha of disputed land to the purchaser. 15. PW 2 is the brother of the opposite party-complainant. He confirmed that on 21.7.1999 the petitioner had visited the disputed land and had surveyed the same following which the disputed land was handed over to Mr. Agarwalla. 16. PW 3 another brother of the opposite party-complainant deposed that on 21.7.1999 the petitioner without serving any notice on them or any order of any Court resorted to measuring of the land in their possession and thereafter handed over 1 katha thereof to Mr. Agarwalla. 17. PW 4 stated that on 21.7.1999 he saw the petitioner-accused measuring the land of the opposites party-complainant. Agarwalla. 17. PW 4 stated that on 21.7.1999 he saw the petitioner-accused measuring the land of the opposites party-complainant. In the same tune evidence of the of the PW 5. 18. The petitioner examined himself as D.W. 1 and stated on oath that on 20.7.1999 the Circle Officer asked him to measure the disputed land and submit a report. Accordingly, he with the Kanango visited the land. He, also referred to an official communication dated 19.7.1999 of the Circle Officer in that regard. He deposed that after the survey and measurement of the land on 22.7.1999, he submitted a report, DW 2 Sri Keshab Medhi was at the relevant time supervisor (Kanango). He stated on oath that on 21.7.1999 he alongwith the Mandal went to the disputed land following a complaint of the opposite party-complainant. He stated that the Circle Office by official communication dated 19.7.1997 had ordered so. After the Survey and measurement of the land a report was submitted on 22.7.1999. 19. From an assessment of evidence as outlined hereinabove, it is amply clear that neither the opposite party-complainant, nor his witnesses have deposed of any inducement of the opposite party-complainant by the petitioner-accused for which the former being deceived had parted with the disputed land involved to Mr. Agarwalla. The contents of the complaint petition as well as the evidence on record, therefore, do not furnish the basic ingredients of the offence of cheating. 20. I have carefully examined the judgment and order impugned in the instant proceeding. While recording the reasons in support of the conclusion that the petitioner-accused is guilty of the offence of cheating, the learned court below left out of consideration the ingredients of the offence of cheating and failed to consider whether the complaint, petition and the evidence on record proved the said ingredients. 21. In view of the above discussion, I am of the considered opinion that the opposite party-complainant has failed to prove the charge of cheating against the petitioner-accused. The learned trial court had acquitted the petitioner-accused of the charge of Section 427 IPC. In the result, the petitioner succeeds. The impugned judgment and order is set aside. 22. At this stage Mr. Das has submitted that the matter be remanded to the learned, court below for fresh framing of the charge against the petitioner-accused on the basis of the materials on record. In the result, the petitioner succeeds. The impugned judgment and order is set aside. 22. At this stage Mr. Das has submitted that the matter be remanded to the learned, court below for fresh framing of the charge against the petitioner-accused on the basis of the materials on record. I am not inclined to accept the prayer. The petitioner was charged under Section 417/427 IPC and was made to stand trial on the basis thereof. After a protected trial he was convicted Under Section 417IPC which has been interfered with by this court in the present revision petition. In the meantime, 6 years have passed, I do not consider that it would be in the interest of justice to remand the matter to the learned court below and expose the petitioner-accused to a fresh round of litigation. 23. The petition stands allowed. The petitioner is set at liberty. His bail bond stands discharged. Petition allowed