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2018 DIGILAW 2304 (JHR)

Chhathu Mahto v. State Of Jharkhand

2018-10-22

RONGON MUKHOPADHYAY

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JUDGMENT Rongon Mukhopadhyay, J. - Heard Mr. D. K. Maltiyar, learned counsel for the petitioner and Mr. Tapas Roy, learned A.P.P. for the State. 2. This application has been directed against the judgment dated 19.09.2008 passed by the learned Additional Sessions Judge III, Hazaribagh in Criminal Appeal No. 88 of 2007 whereby and whereunder the judgment and order of conviction and sentence dated 27.06.2007 passed by the learned Judicial Magistrate 1st class, Hazaribagh in C. Case No. 70 of 2004 convicting the petitioner for the offence under Section 420 of I.P.C. and sentencing him to undergo R.I. for 3 years and a fine of Rs. 5,000/- has been affirmed albeit modification in the sentence by which the same has been reduced to R.I. for one year along with a fine of Rs. one lac. 3. The prosecution story in brief arises out of a complaint case in which it is stated that the petitioner is the owner of Plot nos. 194 and 195 under Khata No. 64 situated at village Sarley under police station no. 159 in the district of Hazaribagh. The petitioner had proposed to sell the land measuring an area of 39 decimals in two plot numbers in favour of the complainant for a consideration amount of Rs. 97,500/-. After receiving the full amount, a deed of sale was executed on 18.06.1988 along with a token of acknowledgment of the receipt of the money as well as the map. It has been alleged that when the complainant went to cultivate the land in question, one Arvind Kumar Sinha approached him and showed him that he has already purchased 12 decimals of land out of the said 39 decimals of land from the petitioner. The complainant had thereafter approached as a grievance that in spite of selling 12 decimals of land to Arvind Kumar Sinha, the petitioner should not have sold 39 decimals of land which also included the said 12 decimals of land, which is alleged to have been admitted by the petitioner and he has impressed upon the complainant to take 12 decimals of land at some other place. Allegation has been levelled that the complainant had agreed to such proposal and 12 decimals of land was given by the petitioner to the complainant in the plot no. 191 of the same Khata. Allegation has been levelled that the complainant had agreed to such proposal and 12 decimals of land was given by the petitioner to the complainant in the plot no. 191 of the same Khata. It has been alleged that the informant came in possession of the land and made a fencing by barbed wired and iron poles and thereafter the petitioner has executed a sale-deed with respect to 27 decimals of land under Plot nos. 194 and 195. It has also been alleged that on 01.02.2004 at about 11:00 A.M., the accused persons along with 15-20 persons came to Plot No. 191 and caused damage to the fencing and also caused injury to the complainant. Based on the aforesaid allegations, C. Case No. 70 of 2004 was instituted in which upon conducting an inquiry cognizance was taken for the offences under Sections 420 & 447 of I.P.C. Charges were framed under Section 420 & 447 of I.P.C. to which the petitioner pleaded not guilty and claimed to be tried. 4. In course of trial, four witnesses were examined on behalf of the prosecution. P.W. 1 - Ajay Kumar is the son of the complainant who has stated that 12 decimals of land were adjusted in Plot no. 191 as 12 decimals of land in Plot Nos. 194 & 195 were already sold by the petitioner in favour of one Arvind Kumar Sinha. He has further stated that his father has taken possession in 12 decimals of land in Plot no. 191 and later on the accused persons including the petitioner has caused damage to the fencing and had trespassed on the land. This witness in cross-examination has stated that he has come to know that there was a dispute with respect to 12 decimals of land. P.W. 2 - Sri Bhagat Kishan is the complainant who has stated that on 01.02.2004, the accused persons along with 15-20 persons had arrived to cause damage to his fencing and have also abused and threatened them. He has also stated that in 1998, Chhatu Mahto had executed an agreement for sale of 39 decimals of land for which an amount of Rs. 97,500/- was paid, but subsequently it was disclosed by one Arvind Kumar Sinha that the 12 decimals of land of the said plot has already been sold to him by the petitioner. He has also stated that in 1998, Chhatu Mahto had executed an agreement for sale of 39 decimals of land for which an amount of Rs. 97,500/- was paid, but subsequently it was disclosed by one Arvind Kumar Sinha that the 12 decimals of land of the said plot has already been sold to him by the petitioner. P.W. 3 - Raju @ Rajendra Kumar Rana has not been cross-examined after charge by the defence. P.W. 4 - Basudeo Thakur is an employee of the complainant who has supported the case of the complainant with respect to the damage caused on the fencing in the 12 decimals of land which was subsequently transferred to the complainant by virtue of an oral agreement. 5. The learned trial court while considering as to whether any offence is made out under Section 447 of I.P.C., has considered the various documentary evidence brought on record and has ultimately acquitted the petitioners from the charges levelled under Section 447 of I.P.C. So far as the Section 420 of I.P.C. is concerned, it appears that the primary reason for convicting the petitioner for the said offence is the fact that although the petitioner had agreed to sell 39 decimals of land in Plot nos. 194 & 195 for a consideration amount of Rs. 97,500/-, but subsequently it was detected that out of 39 decimals of land, 12 decimals of land was already sold in favour of one Arvind Kumar Sinha. However, neither the learned trial court nor the learned appellate court has taken into consideration the fact that on the complainant approaching the petitioner, an oral agreement was entered into in which 12 decimals of land in Plot no. 191 was agreed to be adjusted in favour of the complainant which has subsequently led to fencing of said 12 decimals of land. Once the complainant had entered into an oral agreement with the petitioner and had agreed to the proposal of the petitioner regarding adjustment of 12 decimals of land in Plot No. 191, the question of cheating the complainant automatically gets diluted and washed away. Once the complainant had entered into an oral agreement with the petitioner and had agreed to the proposal of the petitioner regarding adjustment of 12 decimals of land in Plot No. 191, the question of cheating the complainant automatically gets diluted and washed away. In fact the allegations which has been levelled by the complaint petition do point to a civil dispute as it is with respect to a specific performance of a contract and in view of the subsequent development in which the complainant had agreed to the offer made by the petitioner, the question of convicting the petitioner for the offences under Section 420 of I.P.C. does not arise. 6. As a consequence of the discussions made hereinabove, this application stands allowed and the judgment and order of conviction and sentence dated 19.09.2008 passed by the learned Additional Sessions Judge III, Hazaribagh in Criminal Appeal No. 88 of 2007 and the judgment and order of conviction and sentence dated 27.06.2007 passed by the learned Judicial Magistrate 1st class, Hazaribagh in C. Case No. 70 of 2004 are hereby set aside.