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Rajasthan High Court · body

2005 DIGILAW 1351 (RAJ)

Amrit Lal v. The State of Rajasthan

2005-05-06

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant criminal revision petition under Section 397/401, of the Code of Criminal Procedure Code, 1973 (for short ‘the Code’ hereinafter), the petitioner has challenged the order dated 10.12.2002 passed by Additional Sessions Judge (Fast Track), Jalore (for short ‘the appellate Court’ hereinafter) in Cr. Appeal No.33/2002 whereby the appellate Court partly allowed the appeal filed by the petitioner against the Judgment and order dated 16.05.2000 passed by Chief Judicial Magistrate, Jalore (for short ‘the trial Court’ hereinafter) in Cr. Case No.337/1995 whereby the trial Court convicted the petitioner for the offence under Section 420, IPC and instead of sentencing him to any imprisonment, released the petitioner on probation and imposed a fine of Rs.2,500/-as prosecution expenses. Aggrieved by the Judgment and order impugned, the petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the petitioner and the Public Prosecutor for the State. Perused the Judgment and orders of appellate Court as well as of trial Court. I have carefully gone through the record of the trial Court. 3. Facts and circumstances giving rise to the instant revision petition are that the petitioner owns a bus bearing No.RJ-04/P-0014. It is alleged that the petitioner applied for the token to Traffic Inspector Muzaffar Hussain, who, at the relevant time, was working in the office of District Transport Office. It is alleged that alongwith an application for token Ex. P/1, the petitioner filed a photo copy of the insurance cover note alleged to have been issued by the Oriental Insurance Company covering the risk of said vehicle. The token was issued to ply the vehicle certifying that the special road tax has been paid by the petitioner. Subsequently, it appears that there was some altercations in the said cover note Ex. P/2 on which a report was lodged against the petitioner vide Ex.P/6. On receipt of the report, the police registered a crime report being FIR No.158 Ex.P/7. The trial framed the charges for the offences under Sections 467, 468, 471 and 420, IPC. Before the trial Court, the prosecution examined as many as six witnesses. The accused-petitioner made statement under Section 313, CrPC and denied the allegations levelled against him. He himself appeared as a DW-1 and produced document Ex. D/1. The trial framed the charges for the offences under Sections 467, 468, 471 and 420, IPC. Before the trial Court, the prosecution examined as many as six witnesses. The accused-petitioner made statement under Section 313, CrPC and denied the allegations levelled against him. He himself appeared as a DW-1 and produced document Ex. D/1. The trial Court on appreciation of the evidence, came to the conclusion that the prosecution has failed to prove the case against the petitioner for the offences under Sections 467, 468 and 471 IPC. However, held the petitioner guilty for the offence under Section 420 IPC. Instead of sentencing the petitioner at once to any imprisonment, he was extended the benefit of Probation of Offeners Act (for short ‘the Act’ hereinafter) to maintain the peace and tranquility and be of good behaviour for a period of three years. However, a fine of Rs.2,500/-was imposed as prosecution expenses. Against the order of the trial Court dated 06.05.2000, the petitioner filed an appeal before the appellate Court. The appellate Court has maintained the order of the trial Court so far it relates to convicting the petitioner for the offence under Section 420, IPC and grant of benefit of the Act, however, the order to the extent directing the petitioner to pay prosecution expenses amounting to Rs.2,500/-was set aside. 4. It is contended by learned Counsel for the petitioner that there is absolutely no evidence that it was the petitioner, who presented the Ex.P/1 and Ex.P/2 before Traffic Inspector, Muzaffar Hussain, is owner of the aforesaid bus and on this ground, it cannot be presumed that the petitioner presented Ex.P/1 and Ex.P/2 and there is no evidence connecting the petitioner with the commission of crime. It is further contended that according to the prosecution case, documents Ex.P/1 and Ex.P/2 were presented before the Traffic Inspector, Muzaffar Hussain, who has not been produced by the prosecution as a witness. Learned Counsel for the petitioner has also contended that the prosecution has failed to show any evidence that it was the petitioner, who forged the insurance cover note. Learned Public Prosecutor supported the Judgment and order impugned. 5. In the instant case, after investigation, the police filed a negative final report. However, the trial Court took the cognizance of the offence noticed above. Learned Public Prosecutor supported the Judgment and order impugned. 5. In the instant case, after investigation, the police filed a negative final report. However, the trial Court took the cognizance of the offence noticed above. On careful perusal of the statements of the witnesses produced by the prosecution, it no where appears as to how the complainant has been cheated. 6. PW-1 Satyaveer Yadav, who at the relevant time, was posted as District Transport Officer, Jalore, has stated in his statement the procedure as to how the token is issued. He has stated that for the purpose of issuing of token for plying the vehicle on a route, MTD Form is to be filled and presented to the District Transport Officer; alongwith the MTD Form, a certificate depositing the road tax, the insurance cover note, fitness certificate etc. are required to be filed. He has stated that on 15.07.1992, the petitioner filed MTD Form Ex.P/1 before Transport Inspector, Muzzaffar Hussain. Alongwith MTD Form, he filed insurance cover note Ex.P/2 showing its validity up to 21.02.1993, whereas subsequently, it was revealed that the insurance cover note was valid up to 21.02.1992 and by overwriting, it was made “1993”. This witness nowhere states as to who presented the MTD Form Ex.P/1 and photo copy of insurance cover note Ex.P/2. Had the Transport Inspector, Muzzaffar Hussain been produced by the prosecution, he would have been the best witness to state as to whether the petitioner presented Ex.P/2 or someone else. In the cross-examination, he admitted that at the time of issuance of taken, generally original documents are seen and even sometimes on the basis of photo copies of the documents, the token are being issued. He categorically stated that who forged the documents, he cannot say as the documents were never presented before him. 7. PW-2 Sushil Kumar Sharma, a clerk in the office of District Transport Officer, Jalore categorically stated that Ex.P/2 photo copy of insurance cover note was not presented before him. PW-3 Nirbhay Lal, an official of Oriental Insurance Company stated that the cover note Ex.P/4 was issued by the Oriental Insurance Company insuring the bus RJ-04/P-0014 for the period commencing from 14.02.1992 to 21.02.1992. He placed on record the carbon copy of insurance cover note Ex.P/4. PW-5 Bhanwer Nek Mohammed, SHO, Police Station, Jalore proved report Ex.P/6, which was filed by PW-1 Satyaveer Yadav and FIR Ex.P/7. He placed on record the carbon copy of insurance cover note Ex.P/4. PW-5 Bhanwer Nek Mohammed, SHO, Police Station, Jalore proved report Ex.P/6, which was filed by PW-1 Satyaveer Yadav and FIR Ex.P/7. PW-6 Chandan Singh Bhati, LDC, who at the relevant time was working in the office of District Transport Officer, also stated the procedure as to how the token is issued. He nowhere stated that it was the petitioner, who presented the MTD Form and insurance cover note Ex.P/2. This witness only states with regard to the procedure adopted by the District Transport Officer in issuing of token. There is no other evidence connecting the petitioner with the commission of crime. The petitioner has denied the allegation in his statement under Section 313 of the Code and stated that the registration of the vehicle in question was surrendered to District Transport Officer, Jalore vide Ex.D/1 for the period commencing from 03.05.1992 to 31.03.1994 and, therefore, on the relevant date of the occurrence, the registration of the bus stood surrendered to the District Transport Officer meaning thereby the bus was not plying on the route and, therefore, the question of token does not arise. He has proved Ex.D/1 alleged to have been issued by the District Transport Officer, Jalore showing surrender of the registration of the bus from 03.05.1992 to 31.03.1994. 8. On close scrutiny of the statements of the prosecution witnesses and the record of the Courts below, there appears to be absolutely no evidence that the petitioner cheated the complainant PW-1 Satyaveer Yadav. Even according to PW -1 Satyaveer Yadav, the petitioner never appeared before him and presented Ex.P/1 and Ex.P/2. It was the Traffic Officer, Muzzaffar Hussain, who could have said that he was cheated. The essential ingredients of an offence of cheating are that there should be fraudulently or dishonest inducement of a person by deceiving him 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 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 in cases covered by the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 9. 9. In the instant case, very essential ingredients of offence of cheating are totally lacking though there is concurrent finding of two Courts below holding the petitioner guilty but on close scrutiny of the statements of the prosecution witnesses and the documents placed on record, it appears that the findings of the Courts below suffers from illegality or perversity and against the provisions of law and, therefore, warrants interference in the revisional jurisdiction. Since, the essential ingredients so far as Section 420, IPC have not been proved by the prosecution, therefore, the orders passed by the Courts below cannot be sustained. 10. Consequently, the revision petition is allowed. Orders passed by the appellate Court as well as by trial Court are hereby set aside. The petitioner is acquitted of the offence under Section 420, IPC. The stay petition also stands disposed of .