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2019 DIGILAW 2140 (ALL)

Panna Lal Sharma v. State Of U. P.

2019-09-16

RAM KRISHNA GAUTAM

body2019
JUDGMENT : Ram Krishna Gautam, J. This application under Section 378(4) Cr.P.C. has been moved by Panna Lal Sharma with a prayer for grant of leave to file appeal against judgment of acquittal dated 02.11.2002, passed by IXth Additional Chief Judicial Magistrate, Aligarh in Complaint Case No. 1996 of 2002 (Panna Lal Sharma Vs. Rewati Prasad), under Section 420 I.P.C., Police Station Tappal, District Aligarh, whereby Rewati Prasad has been acquitted from the charge of offence punishable under Section 420 I.P.C. 2. Learned counsel for applicant argued that it was a complaint case filed against Rewati Prasad by Panna Lal Sharma, wherein he was summoned for offence punishable under Section 420 I.P.C. A sale deed was got executed by Rewati Prasad for plot no. 75 on 17.02.1993. This plot was obtained in a public auction from Sales Tax Department by Rewati Prasad and subsequently this public auction was cancelled by department concerned, of which information was communicated to Rewati Prasad on 28.07.1992. Even after being informed about ownership of plot no. 75, Rewati Prasad executed sale deed for same plot in favour of complainant for a consideration of Rs.8,500/-, which was not under his ownership. It was a deceit with complainant Panna Lal Sharma, hence above complaint was filed, in which summoning was there. This fact was proved by complainant's witness PW-1 and PW-2 by their testimony recorded under Section 444 and 446 Cr.P.C., but trial Court failed to appreciate facts and law placed before it, thereby passed impugned judgment of acquittal, which was result of perversity. Hence, this appeal with a prayer for grant of leave. 3. Learned A.G.A. argued that judgment was in accordance with evidence on record. 4. The admitted fact was that Rewati Prasad was owner in possession of plot no. 75, purchased by public auction from Sales Tax Department in the year 1992. This plot was sold to Panna Lal Sharma on 17.02.1993 by registered sale deed. Panna Lal Sharma being examined as PW-1 admitted that he got possession over above plot and it was got constructed by him. The testimony under Section 244 Cr.P.C. as of Panna Lal Sharma is of this fact that he is not personally aware as to whether communication regarding cancellation of transfer of plot by department concerned was made to Rewati Prasad or not. The testimony under Section 244 Cr.P.C. as of Panna Lal Sharma is of this fact that he is not personally aware as to whether communication regarding cancellation of transfer of plot by department concerned was made to Rewati Prasad or not. Rather, it came to his notice after making inquiry at Sales Tax Department in the year 1996. 5. The only question which was basis for judgment of acquittal was that neither Panna Lal Sharma nor his witness nor public witness examined as PW-3 was in position to prove that this communication of cancellation of transfer of plot in public auction was made to Rewati Prasad or not and on the basis of this fact this judgment of acquittal was passed. Moreso, admittedly Rewati Prasad was owner in possession of plot in question. He had made construction over it. He executed deed of transfer by registered sale deed. The transferee complainant got possession over it. He occupied the same and raised construction. It was never protested by anyone. Subsequently, upon inquiry it came to notice that in public office above deed of public auction was cancelled by department concerned. He was not aware about communication of this cancellation order to Rewati Prasad, then under how and under what circumstances, this inference can be drawn that it was under willful deceit by Rewati Prasad. The public witness could also not explain as to whether communication was made to Rewati Prasad or not. 6. For an offence punishable under Section 420 I.P.C., the essential ingredients is 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" Explanation-A dishonest concealment of facts is a deception with the meaning of this section." 7. In present case, no willful deception could be proved by prosecution because complainant himself was not sure as to whether Rewati Prasad was aware of this cancellation of transfer of public property or not. His public witness too was not sure. In present case, no willful deception could be proved by prosecution because complainant himself was not sure as to whether Rewati Prasad was aware of this cancellation of transfer of public property or not. His public witness too was not sure. Rewati Prasad was in possession over plot in question and he executed the same through registered sale deed. 8. Under Transfer of Property Act, there is a principle of buyer beware. Meaning thereby, there is a legitimate expectancy about conduct of buyer. He too is expected to make inquiry from public office about the ownership of property going to be purchased or going to be transacted and if buyer is not aware, he cannot say the same to be an offence unless that comes within definition of deception. 9. The word 'dishonest' in this explanation to Section 415 is significant. Not all concealment of material facts but a dishonest concealment of an important fact amounts to deception. No concealment is dishonest within the section unless the person concealing it is legally bound to disclose it. Defects in title being defects in the property under Section 55(1)(a) of the T.P. Act, there is no duty on the seller to disclose them unless the buyer could not with ordinary care finds them out. Therefore omission to disclose by the seller that there is a defect in title which defect buyer can with ordinary care discover does not mount to cheating. There is a difference between mere concealment or non-disclosure and a false representation, and while there is no legal duty placed upon the vendor of immovable property to disclose any charge or encumbrance, yet, if a false representation is made and acted upon, and as a result, money passes, then though the false representation relates to immovable property, the offence of cheating may have been committed, but Allahabad High Court in Banwarilal v. State, (1956) AIR Allahabad 341 has propounded that vendor is to disclose previous mortgage if any, but in present case the communication of cancellation of transfer deed by public auction before alleged transfer made by accused Rewati Prasad could not be proved by prosecution. Hence, learned trial Magistrate by cogent and appropriate appreciation of facts and evidence on record came to conclusion of passing of judgment of acquittal. There is no perversity, illegality and irregularity in the impugned judgment. Hence, learned trial Magistrate by cogent and appropriate appreciation of facts and evidence on record came to conclusion of passing of judgment of acquittal. There is no perversity, illegality and irregularity in the impugned judgment. There is no ground for grant of leave to appeal. 10. Accordingly, application to grant leave for filing appeal, being devoid of merits, stands rejected.