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2012 DIGILAW 560 (UTT)

Om Nath Malhotfa v. Satish Kumar Mittal

2012-09-10

PRAFULLA C.PANT

body2012
Prafulla C. Pant, J.— This appeal, preferred under section 378 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 12.10.1999, passed by Judicial Magistrate, IInd, Dehradun, in Criminal Complaint Case No. 1778 of 1996, whereby said court has acquitted the accused/respondent Satish Kumar Mittal, from the charge of offence punishable under section 420 of I.P.C. 2. Heard learned counsel for the appellant, and learned Amicus Curiae for the respondent no.1, and learned Deputy Advocate General, for the State/respondent no.2, and perused the lower court record. 3. Prosecution story, in brief, is that in April 1988, accused Satish Kumar Mittal persuaded complainant/appellant Om Nath Malhotra to purchase a landed property of Village Ajabpur Kalan, District Dehradun, with him from one Seva Ram. The complainant Om Nath Malhotra agreed to the suggestion made by the accused Satish Kumar Mittal and agreement dated 02.05.1988, was executed with the seller Seva Ram, and one Shyam Kali. In this connection, Rs. 40,000/- were paid as part of consideration to the prospective seller, out of total amount of consideration Rs. 2, 40,000/-. Complainant's case is that Rs. 40,000/- was given by him not only for himself, but also on behalf of the K.K.Gupta and the accused Satish Kumar Mittal, who in turn agreed to repay the amount to him (PW1). It is pleaded by the complainant in his criminal complaint that on 13.06.1992, a cheque of Rs. 40,000/- was given by accused Satish Kumar Mittal (respondent no.1) to the complainant Om Nath Malhotra towards repayment, but the same was dishonored due to the account closed in the State Bank of India, Dehradun. It appears that initially, the complainant filed a criminal complaint under Section 138 of Negotiable Instruments Act, but the same was withdrawn by him, and the Criminal Complaint Case No. 1778 of 1996, was filed alleging that he was cheated by accused Satish Kumar Mittal of Rs. 40,000/-. 4. It appears that initially, the complainant filed a criminal complaint under Section 138 of Negotiable Instruments Act, but the same was withdrawn by him, and the Criminal Complaint Case No. 1778 of 1996, was filed alleging that he was cheated by accused Satish Kumar Mittal of Rs. 40,000/-. 4. After examining the complainant, under section 200 of Cr.P.C., and the witness Rajendra Kumar under Section 202 of Cr.P.C, the trial court summoned the accused Satish Kumar Mittal to face the trial in respect of offence punishable under section 420 of I.P.C. Thereafter, complainant got himself examined as PW1 Om Nath Malhotra, and PW2 Rajendra Kumar Oberoi under Section 244 of Cr.P.C. On the basis of their evidence, the trial court on 05.12.1996, framed charge of offence punishable under section 420 I.P.C., against the accused Satish Kumar Mittal, who pleaded not guilty and claimed to be tried. Whereafter, the aforesaid two witnesses were further cross examined under section 246 of Cr.P.C. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which, the accused pleaded the evidence adduced against him as false. He further pleaded that an undated cheque was given by him only as a gesture of confirmation (guarantee) of partnership with the complainant (and not towards an liability). In defence, accused Satish Kumar Mittal got himself examined DW2 K.K. Gupta. The trial court after hearing the arguments found that the ingredients of offence punishable under section 420 of I.P.C., are not made out in the present case. As such, the accused Satish Kumar Mittal could not be convicted. Accordingly, the accused/respondent No.1 Satish Kumar Mittal was acquitted by the trial court. Aggrieved by said judgment and order dated 12.10.1999, passed by Judicial Magistrate IInd, Dehradun, in Criminal Complaint Case No. 1778 of 1996, this appeal was filed by the complainant before Allahabad High Court, from where it is received by the transfer under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. 5. Learned counsel for the appellant argued before this Court that the trial court has erred in law in holding that the charge against the accused/respondent No. 1 Satish Kumar Mittal is not proved. It is further submitted that the accused/respondent No.1 Satish Kumar Mittal has not only cheated the appellant/complainant of Rs. 5. Learned counsel for the appellant argued before this Court that the trial court has erred in law in holding that the charge against the accused/respondent No. 1 Satish Kumar Mittal is not proved. It is further submitted that the accused/respondent No.1 Satish Kumar Mittal has not only cheated the appellant/complainant of Rs. 40,000/-, but committed forgery in getting adduced the evidence of handwriting and finger prints expert. (6) I have gone through the impugned judgment and order, and also perused the lower court record. The trial court has acquitted the accused/respondent No. 1 Satish Kumar Mittal on the ground that even if the prosecution case is accepted the ingredients of the offence punishable under section 420 I.P.C. are not made out. It is pertinent to mention here that section 420 of I.P.C., provides punishment for cheating and dishonestly inducing delivery of property. The section reads as under: - “ Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”. (7) The word “cheating” is defined in Section 415 of I.P.C., which provides that whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. The explanation to said section provides that the dishonest concealment of facts is a deception within the meaning of the section. 8. Above definition makes it clear that there must be an element of deception to constitute an offence of cheating. Section 420 further requires that by such deception the accused must have dishonestly induced the person to deliver the property. 8. Above definition makes it clear that there must be an element of deception to constitute an offence of cheating. Section 420 further requires that by such deception the accused must have dishonestly induced the person to deliver the property. In the present case, admittedly, accused/respondent No.1 Satish Kumar Mittal said to have asked the complainant Om Nath Malhotra to be a co-purchaser with him, and his father in law K.K. Gupta (in respect of property situated in Village Ajabpur Kalan, Dehradun). Copy of the agreement of sale dated 02.05.1988, is part of the lower court record, which is at paper no. 19A/1 to 19A/4. Said copy of registered agreement shows that one Seva Ram and Shyam Kali agreed to sell the property situated in Khasra No. 41 of Village Ajabpur Kalan, Dehradun, of an amount of Rs. 2,40,000/- to the accused Satish Kumar Mittal and K.K. Gupta (father in law of Satish Kumar Mittal) and complainant Om Nath Malhotra. Said document also shows that Rs. 40,000/- was paid by three prospective purchasers, including complainant to the seller. However, it is nobody's case that Seva Ram ever transferred property in pursuance to aforesaid agreement to any of the prospective purchasers including accused/respondent. Copy of notice dated 13.12.1992 (Ex. A5) discloses that since the amount of said could not be arranged as such the seller confiscated the Rs. 40,000/-, paid under the agreement. There is no transfer of property made to the accused by the seller. As such, no delivery of property was induced dishonestly by the accused by committing cheating with the complainant. Assuming that the complainant invested the sum of Rs. 40,000/- but the property seller did not sell the property to him, it was the seller against whom the complainant had the grievance. Even otherwise, amount of Rs. 40,000/- said to have paid on behalf of the purchasers reflects that on behalf of each purchaser Rs. 13,333/- were paid to the seller which includes share of complainant Om Nath Malhotra, also. From no stretch of imagination it can be said that only one of the purchasers namely Satish Kumar Mittal was required to pay Rs. 40,000/- to the seller. It has been suggested on behalf of the accused to PW1 Om Nath Malhotra, the seller committed cheating with all the three purchasers. 9. From no stretch of imagination it can be said that only one of the purchasers namely Satish Kumar Mittal was required to pay Rs. 40,000/- to the seller. It has been suggested on behalf of the accused to PW1 Om Nath Malhotra, the seller committed cheating with all the three purchasers. 9. The another question for consideration in this appeal is that if the complainant Om Nath Malhotra alone invested Rs. 40,000/- on behalf of the three purchasers whether the other two purchasers committed cheating with the complainant in making him pay Rs. 40,000/- on behalf of the three purchasers. In this connection, it is pertinent to mention here that there is nothing on the record which suggests that on 02.05.1988, when the registered agreement was executed with Seva Ram, the accused or his father in law had any such intention. If there was no dishonest intention on the day when the agreement was executed and ` 40,000/- was paid to the seller, and merely for the reason that seller did not execute the sale deed in favour of the purchasers, it cannot be said that the other two purchasers have committed any criminal offence to cheat the complainant (third copurchaser). 10. As far as, the adducing of evidence of handwriting and finger prints expert is concerned, with regard to which, it is pleaded that the expert had taken photograph of disputed and admitted signature and handwriting without the permission of the court, even after ignoring said evidence adduced on behalf of the defence, complainant has failed to prove the charge of offence punishable under section 420 of I.P.C., as against the accused Satish Kumar Mittal, as discussed above. 11. Therefore, this Court finds no force in this appeal against acquittal which is liable to be dismissed. Accordingly, the appeal is dismissed. _____________