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2018 DIGILAW 450 (JHR)

Alok Dutt Pandey v. State of Jharkhand

2018-02-21

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned counsel for the petitioner and the State on the plea of condonation of delay of 59 days in preferring the instant petition through I.A. No. 7237 of 2016. Learned counsel for the petitioner submits that after passing of the judgment of acquittal, petitioner was out of station and had acquired knowledge after sometime. Thereafter, the certified copies of the impugned order, copy of the plaint, deposition etc. were obtained, which took time. After arranging money, he approached his counsel at the High Court and after discussion the file was handed over to the counsel. In these circumstances, delay has occurred. Petitioner would suffer irreparably, if the delay is not condoned. 2. Learned A.P.P. opposed the prayer for condonation of delay. 3. On consideration of the reasons stated in the instant I.A and upon hearing learned counsel for the parties, we are inclined to condone the delay of 59 days in preferring the instant petition. I.A. stands allowed. 4. Heard learned counsel for the parties on the merits of the prayer made for grant of leave to appeal against the judgment of acquittal passed in C.P. Case No. 1577 of 2005 (T.R. No. 1149 of 2016) by the learned Chief Judicial Magistrate, Dhanbad where under both the accused/opposite parties no.2 and 3 herein have been acquitted of the charge under Section 418 of the Indian Penal Code. 5. As per the complainant's case, an agreement was executed to sell the landed property on 04.09.2005 in favour of the complainant. He, on being induced had given a sum of Rs. 50,000/-in cash to the accused no.2 and also agreed to treat further outstanding liability of the accused before him as on that date i.e. Rs. 3.5 lakhs, totaling Rs. 4 Lakhs towards consideration of the scheduled landed property. In presence of witnesses both accused persons executed the aforesaid deed at his office and took Rs.50,000/-from the complainant on 04.09.2005. As per the stipulation therein, the deed of sale was to be executed within 6 months thereof and the complainant had to deliver the balance amount of Rs. 1 lakh in cash to the accused persons. However, on inquiry from the Registry Office, Dhanbad, complainant got information from witnesses that the scheduled land had already been sold to another person several years ago. 1 lakh in cash to the accused persons. However, on inquiry from the Registry Office, Dhanbad, complainant got information from witnesses that the scheduled land had already been sold to another person several years ago. The accused persons had cheated the complainant by fraudulently representing themselves as the owner of the scheduled land and capable to transfer the property also. The accused had taken friendly loan of Rs.3.5 lakhs and failed to return the same to the complainant within time. When the complainant issued a legal notice for the remaining money, both the accused in connivance proposed to sale the scheduled property in August/September, 2005 and intentionally represented themselves as owner of the land. They also took Rs.50,000 in cash. The accused, Opposite Party no.3 is a distant relative of the complainant who induced the accused no.2 in the act of deceiving the complainant. Since the local police did not heed to the complaint, he was advised to take shelter of the Court. 6. After recording the solemn affirmation of the complainant and statement of the witnesses in inquiry, the accused persons were summoned to face the trial under Section 418 of the I.P.C. The charge was read out to them on 16.07.2008 to which they pleaded not guilty. The case of the defence was of total denial. 7. During course of trial two witnesses were adduced by the complainant, one Om Prakash Singh as C.W.1 and himself as C.W.2. Following documents were exhibited in support of the complaint case:- 1. Exhibit 1 is the deed of agreement dated 04.04.1997 2. Exhibit 2 is the legal notice dated 26.05.2005 3. Exhibit 3 is the reply dated 03.06.2005 to the legal notice dated 26.05.2005 4.Exhibit 4 is the legal notice dated 24.08.2005 5. Exhibit 5 is the agreement of sale dated 04.09.2005 6. Exhibit 6 is the sale deed dated 06.06.2005 C.W.1 did not turned up for cross examination after charge. Since the defence could not get opportunity to cross examine him, his evidence in the examination-in-chief had got no evidentiary value. C.W.2, the complainant in his examination in chief had stated that in the year 1997 both the accused persons had taken Rs.2.5 lakhs from him and had executed an agreement to that effect that if they did not return back his money, both of them would get 100 kathas of land each registered in his name. C.W.2, the complainant in his examination in chief had stated that in the year 1997 both the accused persons had taken Rs.2.5 lakhs from him and had executed an agreement to that effect that if they did not return back his money, both of them would get 100 kathas of land each registered in his name. But neither the accused persons returned back his money nor got the land registered in his favour. After legal notice on 04.09.2005 both of them came to his office and on being asked to return the money or to get the land registered in his name, the accused informed him that price of the land had enhanced, therefore Rs. 1.5 lakh more was to be paid for execution of the sale deed. After some altercation, the complainant agreed to give Rs.50,000/- and rest of the amount at the time of execution of the sale deed. Opposite Party no.2 was asked to prepare the agreement paper and after being satisfied with it, he gave Rs. 50,000/-to the accused persons. Manoj Pandey and O.P. Singh were also present there. However, after 10 days on inquiry from the Registry Office, Dhanbad, he got information that land was already sold before the second agreement dated 04.09.2005. He also found that land belonged to opposite party no.3 and not opposite party no.2. He further stated that his signature is not on the agreement of sale dated 04.09.2005. The first agreement was executed in the year 1997 and at that time he had good relationship with the accused persons and he had executed that agreement in good faith. He had identified the writing and signature of the accused persons on Ext.1. No separate receipt of taking Rs.50,000/-were mentioned in the schedule. It was mentioned in the agreement that the accused persons had agreed to give Rs.3.5 Lakhs by 06.05.1997. 8. The learned Trial Court discussed the ingredients of Section 418 of the I.P.C and was of the view that in order to constitute an offence of cheating the concept of deception must start from the very beginning of transaction. The document Ext.1, executed on 04.04.1997 showed payment of Rs. 3.5 Lakhs to the accused persons but there was nothing on record to suggest that there was any inducement on the part of the accused persons to the complainant to deliver the money in lieu of sale of land. The document Ext.1, executed on 04.04.1997 showed payment of Rs. 3.5 Lakhs to the accused persons but there was nothing on record to suggest that there was any inducement on the part of the accused persons to the complainant to deliver the money in lieu of sale of land. Rather the recital of it clearly showed that the accused persons had only made a promise to execute the sale deed in favour of the complainant and on their failure to return back the loan amount. Learned Trial Court was of the view that mere non fulfillment of the promise does not amount to cheating. The complainant had right to take recourse of the court of law but that right was never exercised to get the sale deed executed. Ext.5 was found to be doubtful document, though it was titled as “Agreement of Sale”. An agreement is entered into between two persons, Ext. 5 shows that it bears the signature of accused, Opposite Party no.2 but there was no signature of the complainant. Learned Trial Court therefore did not treat it as agreement, which is enforceable by court of law. Ext.5 further showed acknowledgment of the accused/opposite party no.2 of taking Rs.50,000/-on 04.09.2005 and Rs. 3.5 Lakhs on 04.04.1997. Although as per Ext.1, both the accused persons had taken Rs.3.5 lakh from the complainant. In terms of Ext.5, before expiry of 6 months period, the deed was to be executed but the complainant filed the instant complaint case on coming to know that land had been sold on 06.06.2005 to some other person. The sale deed Ext. 6 dated 06.06.2005 was executed by the opposite party no.3 and not by opposite party no.2(signatory of Ext.5). There was no breach of agreement dated 04.09.2005, even if it is assumed to be an agreement, on the part of the opposite party no.2. Learned Trial Court did not find any cause of action for filing the complaint against the opposite party no.2. So far as opposite party no.3 is concerned, he was not signatory of Ext.5 and therefore there was no breach of alleged agreement on his part. Learned Trial Court also found huge gap of more than 3 years from the date of issuance of stamp paper of Ext.5 to the date of signature of the opposite party no.2 therein, which made it doubtful. Learned Trial Court also found huge gap of more than 3 years from the date of issuance of stamp paper of Ext.5 to the date of signature of the opposite party no.2 therein, which made it doubtful. In the aforesaid facts and circumstances, learned Trial Court did not find that the complainant had been able to bring home the charge against the accused persons beyond the shadow of all reasonable doubts. 9. Learned counsel for the petitioner while assailing the impugned judgment submits that the learned Trial Court has also observed about the admission of payment of Rs.3.5 Lakhs to both the accused persons on 04.04.1997. Therefore the ingredients of deception were there from inception as no sale deed was executed. 10. On consideration of the materials on record it can be said that Ext.5 executed by the opposite party no.2 only was not an agreement of sale as rightly held by the learned Court below. The complainant had alleged that both accused persons had been given Rs.3.5 Lakh as per the agreement dated 04.04.1997. In his examination-in-chief, he appeared to have stated that accused persons had taken Rs. 2.5 Lakhs from him and executed an agreement to that effect. There is no link between Ext.5 and Ext.1 in the sense that Ext. 5 was executed by the opposite party no.2 only, though Ext.1 relates to a transaction with opposite party no.2 and 3 both. If the petitioner alleged breach of promise of the Ext.1 dated 04.04.1997 no proceedings were initiated within the time stipulated as per the law of limitation to get the sale deed executed. The complainant had no explanation for such a huge gap of 8 years between the documents i.e., Ext. 1 and Ext.5 i.e. April 1997 and September 2005, Ext.5 is also found to be doubtful document. No other witnesses were adduced by the complainant to corroborate the allegation made in the complaint. The whole case of the complainant therefore fell in the realm of doubt. Learned Trial Court therefore had reason to acquit the accused persons. 11. Having considered the entire facts and circumstances, we are satisfied that no case is made out by the complainant/petitioner herein for grant of leave to appeal. The instant petition being devoid of merit is accordingly dismissed.