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2012 DIGILAW 703 (CAL)

Lakshmi Narayan Kundu v. Sadhan Chandra Ghosh

2012-07-31

MRINAL KANTI SINHA

body2012
Judgment MRINAL KANTI SINHA, J. 1. THIS appeal has been directed against the judgment and order passed by Sri I.C. Das, Learned Judicial Magistrate, 1st Class, Bolpur, Birbhum in C. Case No.35 of 1976 whereby the respondent/accused was acquitted from the charge under Section 420 of the Indian Penal Code. 2. IT was the case of the appellant/complainant that the respondent/accused Sadhan Chandra Ghosh's wife Madhabilata was the owner of plot no.115 of Mouza Gomai within Nanoor Police Station, locally known as 'Balaipurer Math'. The respondent on behalf of his wife Madhabilata agreed to sell .47 decimals land of Gomai Mouza to the appellant/complainant party at Rs.3100/- for which two sale deeds were written and advance of Rs.2755/- was taken by the respondent from the appellant. The respondent took those two deeds for registration of the same after obtaining the signature or L.T.I of his wife but thereafter no sale deed was registered by the respondent in favour of the appellant party. Thereby the respondent committed criminal breach of trust and cheating. Hence, the complainant filed the said complaint case on 12.4.1976. 3. IT appears that after receipt of the complaint cognizance was taken and process was issued against the respondent under Section 420 of the Indian Penal Code. The accused appeared and was released on bail. 4. IN support of his case the appellant examined eight witnesses. Thereafter charge was framed against the respondent under Section 420 of the Indian Penal code. The accused pleaded not guilty to the charge and claimed to be tried. Thereafter the witnesses of the appellant were cross-examined by the defence and complaint's evidence was closed. Then the accused was examined under Section 313 of the Code of Criminal Procedure. The defence adduced no defence evidence but from the cross-examination of the prosecution witnesses as well as from the examination of the accused under Section 313 of the Code of Criminal Procedure the defence case appeared to be the denial of the complainant's case and it was also the case of the defence that the respondent has falsely been implicated in this case. Thereafter argument of the parties was heard in full and judgment was delivered by the learned Trial court finding the accused not guilty under Section 420 of the Indian Penal Code and he was acquitted and discharged from his bail bond. 5. Thereafter argument of the parties was heard in full and judgment was delivered by the learned Trial court finding the accused not guilty under Section 420 of the Indian Penal Code and he was acquitted and discharged from his bail bond. 5. IT is to be considered as to whether the learned Trial court was legally correct in his finding that the respondent was not guilty for the alleged offence under Section 420 of the Indian Penal Code and whether the learned Trial Court was legally correct and justified in passing the said judgment and order of acquittal of the respondent. 6. MS. Mayukhi Mitra, learned counsel appearing for the appellant as amicus curiae has submitted that the impugned order of acquittal is not based on facts and circumstances of the case as according to the petition of complaint the disputed land is situated at Gomai Mouza but at the time of his deposition P.W.1 has stated that the accused approached him for selling the land of 'Balaipur Field' and because of the representation of the respondent the appellant had to part with a sum of Rs.2755/- to the respondent, but as there was no written document of contract which required enforcement, so no civil action could have been taken by the appellant and the learned Trial Court was not also correct to hold that the dispute was a dispute of civil nature and it is the choice of the aggrieved person to decide whether he would move the criminal court or the civil court and there was no application of mind by the learned Trial court at the time of delivering the impugned judgment and order. 7. MS. 7. MS. Rituparna De, learned counsel appearing for the respondent as defence counsel has submitted that the respondent allegedly proposed to sell land of his wife which was not his own land, and as allegedly there was contract between the parties regarding sale of land and subsequently there is allegation of breach of said contract, so the matter appears to be a dispute of civil nature between the parties for which no criminal action can be brought and for which no party can be held criminally liable for the offence punishable under Section 420 of the Indian Penal Code, and the remedy of the aggrieved party in such a case lies before the civil court for breach of contract by filing suit for specific performance of contract and not before the criminal court to pray for trial and punishment of a party for the alleged breach of contract, and in the absence of allegation in the complaint that the accused fraudulently or dishonestly deceived the complainant and thereby induced him to deliver money an offence under Section 420 of the Indian Penal code is not made up. However, if as per the case of the complainant deeds were written and part consideration was paid as earnest money but thereafter the accused was not willing to complete the transaction, then suit for specific performance was the appropriate course of action and that cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction. Moreover, when in such case the aggrieved party has an alternative remedy in the civil court then the matter should not be allowed to be proceeded in criminal court. 8. LEARNED counsel Ms. Moreover, when in such case the aggrieved party has an alternative remedy in the civil court then the matter should not be allowed to be proceeded in criminal court. 8. LEARNED counsel Ms. De has further submitted that there was no written agreement of contract nor any receipt or document has been produced by the appellant to prove that the appellant really entered into any contract with the respondent for sale of any land and the respondent took a part of the consideration of money for the land which did not belong to him and no receipt has also been produced by the appellant to show that actually he made any payment to the respondent for that and as such the case of the appellant has not also been proved by sufficient reliable evidence beyond all reasonable doubt and so the learned Trial court was fully justified in passing the said judgment and order of acquittal. 9. IT is to be considered first as to whether really the alleged offence of cheating was committed by the respondent or the alleged transaction was a mere breach of contract. 10. IT appears that in order to prove his case the complainant has examined as many as eight witnesses. P.W.1 being the father of the minor complainant Kamal Kumar Kundu has deposed that the accused Sadhan approached before him for selling the land of 'Balaipur Field' and took Rs.2755/- from him and two sale deeds were written in that regard but those were not registered in spite of repeated request of the complainant party and P.W.1 has denied the defence suggestion that he instituted the case falsely at the instance of his brother Jayanta Kundu out of grudge and as per the evidence of P.W.1 his wife purchased the disputed land by a deed marked as Exbt.1. It appears from the evidence of P.W.2 that he wrote out a Kobala deed on the request of Sadhan Chandra Ghosh and Laxmi Narayan Kundu who went before him. P.W.3 has also stated that P.W.1 and the accused went to him for writing of a Kobala deed and he wrote out the same. As per the evidence of P.Ws 2, 3 Jayanta Kundu, brother of P.W.1, is a deed writer like them. P.W.3 has also stated that P.W.1 and the accused went to him for writing of a Kobala deed and he wrote out the same. As per the evidence of P.Ws 2, 3 Jayanta Kundu, brother of P.W.1, is a deed writer like them. As per the evidence of P.W.4, P.W.1 Laxmi Narayan Kundu took him to the house of the accused and paid him Rs.2500/- in presence of Jayanta Kundu. As per the evidence of P.W.5 Laxmi Narayan Kundu sold his property to him by registered deed. As per the evidence of P.W.6 Laxmi Kundu gave Rs.155/- to the accused Sadhan Ghosh in his presence, but he cannot say why that money was given. P.W.7 is a stamp vendor from whom some stamps were purchased in the names of Jayanta Kundu and minor Kamal Kumar Kundu by Laxmi Narayan Kundu. P.W.8 is also a stamp vendor from whom stamps were purchased in the name of Kamal Kumar Kundu and P.W.8 has proved his return marked Exbt.2. 11. THUS it appears from the evidence of P.W.1 that the respondent approached the appellant to sell the land of his wife to the complainant party, for which some money was paid to him by the appellant, but no receipt or document has been produced before the court to show that actually any money was really paid by the appellant to the respondent for that purpose. Though the said land was in the name of the wife of the respondent named Madhabilata yet no written agreement between the parties for sale of said land has been produced to prove any such transaction. If any Kobala deed in that regard was written on stamp papers and that was really handed over to the respondent or taken by him for obtaining signature of his wife Madhabilata and those deeds were not registered as per the evidence of P.W.1, then also the said transaction may be regarded as a case of breach of contract for which remedy lies before the civil court and that cannot be regarded as a case of cheating entailing criminal liability to the accused for his failure to fulfil his alleged promise or perform his part of the alleged contract. 12. 12. IT is well settled that a mere breach of contract is not an offence and that cannot give rise to criminal prosecution under Section 420 of the Indian Penal Code unless fraudulent or dishonest intention is shown right from the beginning of the transaction. Failure to honour promise or subsequent non-fulfillment of promise is no cheating unless dishonest intention exists from before. Distinction between mere breach of contract and cheating would depend upon the intention of the accused at the time of the alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made the promise and entered into a transaction with the complainant to part with his property or money then the liability is criminal and the accused is guilty of the offence of cheating, but on the other hand if all that is established that the representation made by the accused has subsequently not been kept and there has been failure to fulfil the promise then criminal liability cannot be imposed upon the accused and in that case the only right which the complainant acquired is to a decree for damages for breach of contract in a civil suit because in such a case the possibility remains that the accused may have intended, at the time when he made the promise, to carry it out, and his subsequent failure to do so may be the result of circumstances about which he had no knowledge at the time when he made the promise, and not of any dishonest intention entertained by him at the very outset when the promise was made. 13. FOR proper appreciation of the matter the relevant provisions of Section 420 of the Indian Penal Code is to be considered. Section 420 of the Indian Penal Code runs thus : - S.420. 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. 14. APPARENTLY, the main ingredients of the offence of cheating are : I. Deception of any person. II. 14. APPARENTLY, the main ingredients of the offence of cheating are : I. Deception of any person. II. Fraudulently or dishonestly inducing that person to deliver any property to any person, or to consent that any person shall retain any property, intentionally inducing that person 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, and the ingredients of the offence under Section 420 of the Indian Penal code are not only that the accused had cheated someone but also by doing so he has dishonestly induced the person who was cheated to deliver property. 15. AS the main ingredient of offence of cheating is the fraudulent or dishonest inducement, so the essential ingredient to attract Section 420 of the Indian Penal code are I. Cheating, II. dishonest inducement to deliver property, and III. Mens rea of the accused at the time of making inducement or making of a false representation with the knowledge that the same was false. It is a settled law that for establishing the offence of cheating the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation, but from his failure to keep the promise subsequently such a culpable intention right at the beginning at the time when the promise was made cannot be presumed. To deceive is to induce a man to believe that a thing is true which is really false and which the person practicing the deceit thinks or believes to be false and it must be shown that there was fraudulent and dishonest intention at the time of commission of the offence. 16. IN the instant case it appears that apart from finding a discrepancy about the subject matter of the agreement for the alleged sale of land the learned Trial court has also observed in his judgment that ? "........there is no specific evidence regarding dishonest intention of the accd. to cause wrongful gain from the complt". (complainant). 17. LEARNED Trial court has further observed in this regard that ? "......... "It is not the case of the complt. that he was cheated and thereby induced to deliver money to the accd. "........there is no specific evidence regarding dishonest intention of the accd. to cause wrongful gain from the complt". (complainant). 17. LEARNED Trial court has further observed in this regard that ? "......... "It is not the case of the complt. that he was cheated and thereby induced to deliver money to the accd. which is the most essential ingredient of the offence defined in this section. Mere breach of contract cannot give rise to a criminal prosecution. The party aggrieved has an alternative remedy in the civil court by filing a suit for specific performance of contract. But the complt. did not do so. Furthermore, the payment of advance in presence of Jayanta Kundu, the elder brother as well as an accd. to the murder case of Sukumar, the brother of accd. Sadhan, appears to be unbelievable and does not impress me at all". 18. THE offence under Section 420 of the Indian penal Code can be said to have been committed when deception was practiced dishonestly and delivery of property is induced and there being no such case from which it could be said even prima facie that the respondent dishonestly induced the complainant to part with his money, the respondent cannot be held liable for the alleged offence under Section 420 of the Indian Penal code. 19. THE mere fact that the accused has not been able to fulfil his promise subsequently would not make him liable for the offence under Section 420 of the Indian Penal code and dishonest intention cannot be inferred as because the accused could not subsequently fulfil his promise which inability may be caused for various reasons but for that reason only it cannot be said that there was necessary intention to deceive the complainant when he allegedly agreed to sell the land to the complainant and induced the complainant to part with the money, as at the time of entering into the contract a man may honestly have the intention of carrying out the contract, but lateron he may not be able to do so for more than one reason or he may change his mind, specially when the property does not belong to him or belongs to some other person. 20. 20. EVEN for the sake of argument it is presumed that there was an agreement for sale of respondent's wife's land to the appellant by the respondent and subsequently the accused could not fulfil his promise, then also it cannot be presumed that he actually intended to deceive the appellant and received the money on the basis of false representation knowing the same to be false and being induced by him the appellant parted with any money to him. Rather it is apparent that as per the evidence of P.Ws. the respondent got the deeds written by the deed writer and agreed to get the same registered by his wife and thereby did something to fulfil his promise to sell the land, but for some reason or other he could not fulfil his promise and subsequently there was breach of contract, though at the time of his examination under Section 313 of the Code of Criminal Procedure the respondent has denied that he ever agreed to sell any land to the appellant or took any money for that. 21. AS it appears that the appellant has not produced or proved any document to prove that he really gave some money to the respondent and the respondent had the necessary mens rea then within his knowledge to deceive him or he really parted with the money only being induced by the respondent, so the respondent cannot be held liable for the alleged offence. The evidence of the P.Ws. in this regard is also not much convincing in as much as there is discrepancy in the evidence of the concerned P.Ws. in this regard. 22. IT is also an established principle of law that in such a case the onus is never upon the respondent to disprove the case of the appellant or to prove his own case, and the onus is always upon the appellant to prove his own case by sufficient reliable evidence beyond all reasonable doubt. in this regard. 22. IT is also an established principle of law that in such a case the onus is never upon the respondent to disprove the case of the appellant or to prove his own case, and the onus is always upon the appellant to prove his own case by sufficient reliable evidence beyond all reasonable doubt. As such it appears that the learned Trial court has rightly observed that there is no specific evidence regarding dishonest intention of the respondent to cause wrongful gain from the appellant and there was no case of inducement to the appellant to deliver money on any false representation which is the most essential ingredient of the said offence and mere breach of contract, if any, cannot give rise to a criminal prosecution and in case of any such breach of contract the aggrieved party has an alternative remedy in the civil court by filing a suit for specific performance of contract and payment of advance money in presence of Jayanta Kundu, the elder brother of the appellant, an accused in the murder case of Sukumar, brother of respondent Sadhan, is not believable. So it appears that the learned Trial court has not done anything wrong in his finding and it cannot be said that there was no application of mind and as such there is no reason to interfere with the said judgment and order of the learned Trial court. 23. So it appears that the learned Trial court has not done anything wrong in his finding and it cannot be said that there was no application of mind and as such there is no reason to interfere with the said judgment and order of the learned Trial court. 23. HAVING regard to the submission of the learned counsel for the parties, evidence, materials on record and other circumstances it appears that the learned Trial court was not wrong in his finding that the alleged offence of cheating and thereby inducing the appellant to deliver money, has not been proved by sufficient reliable evidence beyond all reasonable doubt, and mere breach of contract, if any, cannot give rise to a criminal prosecution and the party aggrieved in such case has an alternative remedy in the civil court by filing a suit for specific performance of contract, if necessary, and payment of advance is not also believable, and as such the learned Trial court was legally correct in his finding that the respondent was not guilty for the offence under Section 420 of the Indian Penal Code and the learned Trial court was legally correct and justified in passing the said judgment and order of acquittal of the respondent and there is no reason to interfere with the said judgment and order passed by the learned Trial court in C. Case No.35 of 1976. 24. AS a result the appeal fails, and the appeal cannot be sustained. 25. ACCORDINGLY, the Criminal Appeal bearing CRA No.211 of 1988 is dismissed. The judgment and order of acquittal passed in C. Case No.35 of 1976 by the learned Magistrate, 1st Class, Bolpur in the district Birbhum are hereby affirmed. 26. LET a copy of this judgment be sent to the learned Trial court along with Lower Court Record as early as possible for information and necessary action. 27. URGENT Photostat certified copy of this judgment be given to the parties, if applied for, on compliance of necessary formalities.