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2012 DIGILAW 241 (HP)

State Of Himachal Pradesh v. Man Singh Rana

2012-05-01

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. (Oral) - The respondent was allegedly running a Travel Agency. The case of the prosecution is that PW-1 Ranjit Kumar, PW-2 Ram Dass, PW-4 Shiv Pal, PW- 6 Kashmir Chand, PW-7, Milkhi Ram, PW-9 Ved Prakash, PW-13 Amar Nath, PW-14 Dharam Chand, PW-15 Prakash Chand and PW-17 Rajinder Kumar were duped by the respondent, hereinafter referred to as "the accused" to provide them job in foreign country, as such, collected money from each of them ranging between Rs. 14,300/- to Rs. 17,000/-. Instead of getting working visa, the accused is alleged to have managed the tourist visa to Syria, thus, managed their flight from Bombay on 13th June, 1984. When they landed at Syria airport, they were not having any money. The authorities asked them to produce show money, but when they could not do so, they were handed over to police. The police contacted embassy at Bombay and it was thereafter that the accused allegedly managed to send 200/- dollars per person. Thereafter, they were let off. As per the statements of the prosecution witnesses, a person was deputed with them who took them in a military vehicle to some other place, from there they entered the boundaries of Lebanon, where they were caught by the police being the illegal entrants. Thereafter, they were deported to India. 2. PW-17 Rajinder Kumar lodged the FIR. PW- 18 Bhag Singh, the then Sub Inspector, CIA Staff, commenced the investigation. He raided the office of the accused and took into possession some furniture lying therein vide memo Ext. PW-3/A. The accused was arrested. Pursuant to the statement recorded under Section 27 of the Evidence Act, he got recovered one photo copier alongwith pass port Ext. P-11, writing pad Ext. P-10 and diary Ext. P-8, which were taken into possession vide Memo Ext. PW-4/A. The police also took into possession passports of Kashmir Chand Ext. PW-6/A vide Memo Ext. PW-9/A, Prakash Chand Ext. P2 and Amar Nath Ext. P-1 vide memo Ext. PW-2/A. After recording the statements of the aforesaid witnesses, the police concluded the offence punishable under Section 420 of the Indian Penal Code against the accused, as such, challan was prepared and presented in the learned trial Court for his trial. 3. The accused was accordingly charge sheeted for the aforesaid offence. The prosecution led its evidence. PW-2/A. After recording the statements of the aforesaid witnesses, the police concluded the offence punishable under Section 420 of the Indian Penal Code against the accused, as such, challan was prepared and presented in the learned trial Court for his trial. 3. The accused was accordingly charge sheeted for the aforesaid offence. The prosecution led its evidence. At the end of the trial, he was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,00,000/- with the default clause. It was also ordered that in case the fine amount is realized, the amount received by the accused from each of the aforesaid persons, be refunded to them. 4. Feeling aggrieved and dissatisfied by the impugned judgment of conviction and sentence, the accused filed Criminal Appeal No. 21/98 RBT No. 6/2004 in the Court of Sessions Judge, Una, which was assigned to the Additional Sessions Judge, Fast Track Court, Una. After reappraisal of the evidence, he came to the conclusion that the witnesses have not been able to prove that the aforesaid persons were sent to foreign country on the assurance of getting job, rather, those persons were interested to go themselves. It was also an admitted case that the said persons were sent to the foreign country on tourist visa and not on the working visa. The learned First Appellant Court also came to the conclusion that the prosecution witnesses did not specifically state the facts which warranted the active role of the accused to believe them for sending to the foreign country with intention to provide job to any of them. They only disclosed that they were accompanied by one person or the other from Una to Bombay and even while in Labonan, they were detained and deported for want of valid travel document. The learned Additional Sessions Judge did not find the dishonest intention or the concealment of facts attributed to the accused tempting them to go to the foreign country on the different passports having different incorrect addresses. Thus, vide his detailed judgment dated 30.9.2004, the accused was acquitted and the impugned judgment of conviction and sentence passed by the learned trial Court was set aside. 5. The State has challenged the acquittal of the accused by means of the present appeal. Thus, vide his detailed judgment dated 30.9.2004, the accused was acquitted and the impugned judgment of conviction and sentence passed by the learned trial Court was set aside. 5. The State has challenged the acquittal of the accused by means of the present appeal. The record of the learned trial Court has been received, perused and I have also heard the learned Counsel for the parties. 6. On re-appraisal of the evidence on record, I find that there was some agreement inter-se the accused as well as the aforesaid persons who intended to go aboard. In fact, the accused also managed to send them to Syria but there was no assurance for Labonon. Surprisingly, none of these persons did have even a penny with them when they arrived at Syria airport. As stated above, the authorities required show money to which the aforesaid persons failed to produce and as per the witnesses, the accused managed to send 200/- dollars per person, thereafter they were let off. The alleged victims did not make any complaint to any of the authorities even at that place, rather, proceeded towards Lebanon without any valid document. They could have informed the authorities therein about the cheating by the accused, if any. The facts disclose it purely a case of breach of contract than a fraud alleged to have been played with them by the accused. Even the conduct of the said witnesses, namely, PW-1 Ranjit Kumar, PW-2 Ram Dass, PW-4 Shiv Pal, PW-6 Kashmir Chand, PW-7, Milkhi Ram, PW-9 Ved Prakash, PW-13 Amar Nath, PW-14 Dharam Chand, PW-15 Prakash Chand and PW-17 Rajinder Kumar is also very dicey. Their parentage and places of residence are different as having been shown in their respective passports. They appeared to be volunteers to go abroad to earn their livelihood. Even assuming prima-facie the allegations made in the complaint to be true, it merely amounts to a breach of contract, but not cheating, as projected. 7. In determining the question as held by the Supreme Court in Hridaya Ranjan Pd. Verma and others v. State of Bihar and another, AIR 2000 SC 2341 , it is to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. 7. In determining the question as held by the Supreme Court in Hridaya Ranjan Pd. Verma and others v. State of Bihar and another, AIR 2000 SC 2341 , it is to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. 8. Judged in the light of the principle noted above, the present case, in my opinion, does not fall within the scope and ambit of Section 420 of the Indian Penal Code. There is not even an iota of evidence to show with respect to the culpable intention of the accused right from the beginning. The aforesaid persons were not novice who had gone abroad for the first time. The entries in their passports reveal that they visited other foreign countries even prior to the said incident. Since, there is nothing on record except their self serving statements which are difficult to believe. Rather, the accused is stated to have sent show money to them when the person accompanying them with whom he had alleged to have sent the money, refused to pay to each of them. 9. For the aforesaid reasons, in my opinion, the offence charged is not proved. As such, the acquittal passed by the learned Additional Sessions Judge cannot be interfered with. Hence, the appeal sans merit and is accordingly disposed of. 10. The accused is discharged of the bail bonds entered upon by him at any time during the proceedings of the case.