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2019 DIGILAW 276 (GAU)

Diganta Saikia v. State of Assam

2019-03-01

RUMI KUMARI PHUKAN

body2019
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. This Revision is preferred against the judgment and order dated 05.07.2011 passed by the learned Sessions Judge, Morigaon in Criminal Appeal No.3/2011, whereby the appellate court has affirmed the judgment and order of the learned SDJM, Morigaon in CR Case No.243/2008, convicting the accused person under Section 420 of the IPC and sentence him to suffer simple imprisonment for six months and a fine of Rs.1000/-. In default to pay the fine another simple imprisonment for 1 month. 2. None appears for the parties. Although, the name of the counsel is shown in the cause list. As the matter is an old pending one, so the same is taken up for disposal. 3. The case in brief is that in the year 2006 the accused rented a house in front of the DTO Office, Morigaon and opened there an office naming "M/S AD Automobiles" and advertised that two wheelers and three wheelers automobiles will be sold on loan in easy instalments. Therefore, the complainant on 18.09.2006 paid an advance of Rs.20,000/- as advance money for a three wheeler vehicle to the accused and the accused gave a receipt against the Rs.20,000/- and promised to deliver the three wheeler Bajaj Vehicle within fifteen days. Even after expiry of fifteen days the accused failed to keep the promise and till date he has not returned the money nor delivered the Bajaj three wheeler. Hence, the complainant filed the complaint before the court which was registered as CR Case No.243/2008 under Section 420 IPC. 4. The learned court upon examination of the complainant and his witnesses took contingence of the offence and issued summon to the accused person to face the trial. Accordingly, the accused person entered his appearance before the court and contested the case, denied the charge framed under Section 420 of the IPC. The complainant examined three witnesses in support of the case and defence examine none. Plea of defence is of total denial. Statement of the accused-person was recorded under section 313 of the IPC and on the conclusion of the trial the learned trial court held the accused guilty under Section 420 of the IPC and sentence him to simple imprisonment for six months with a fine of Rs.1000 in default simple imprisonment for one month. The appeal preferred by the accused, also dismissed. The appeal preferred by the accused, also dismissed. Hence, the present petition has been preferred by challenging the decision of both the forums. 5. I have gone through the impugned judgment and orders and the evidence on record. We have a concurrent finding of both the courts and being a revisional court, this Court is to examine as to whether the learned court below has properly appreciated the evidence on record while arriving at the guilt of the accused and whether any illegality have crept up and or any perversity in the decision arrived. The scope of revisional court is limited to the scope as mentioned above whereas the scope of the appellate court is wide enough. Admittedly, the accused-petitioner has adjusted the matter through the appellate court. 6. Now we have to look into the evidence as well as appreciation by the Court. 5. The complainant/respondent in his evidence has asserted the facts narrated in the complaint petition that on 18.09.2006 pursuant to the assertion made by the accused/respondent that he will deliver a tempo vehicle within 15 days of payment of Rs.20,000/- The complainant paid Rs.20,000/- (Twenty thousand) to the accused, as advance money, against the demand of Rs.35,000/- in presence of witness. The accused also issued a receipt against such payment (exhibit-1) but after a period of 15 days when the complainant visited the shop of the accused he asked him to open a bank account and accordingly complainant opened an account. But, since thereafter, whenever the complainant visited him the accused on pretext of one or other, did not pay the amount and nor the vehicle was delivered to him. Hence, ultimately the complainant filed the case in 2008. In cross- examination, he has stated that after 15 days of delivery of vehicle, he has to pay another Rs.10,000/- to the accused but as the vehicle was not delivered so the remaining amount was not paid. 6. The evidence of PW-1/Complainant was fully supported by the evidence of PW-2, Tapan Kumar Nath and PW-3, Aruna Deuri about the payment of advance money of Rs. 20,000/- by the PW-1 for the assurance that the accused would deliver the vehicle to the complainant after the 15 days but neither the delivery of vehicle was there nor the amount paid by PW-1 was returned to him. 7. 20,000/- by the PW-1 for the assurance that the accused would deliver the vehicle to the complainant after the 15 days but neither the delivery of vehicle was there nor the amount paid by PW-1 was returned to him. 7. It is to be noted that the defence could not demolish the case of the claimant nor they adduce any evidence in rebuttal. The receipt that was issued by the accused acknowledging the payment of Rs.20,000/- could not be denied by the accused, which bears his signature. The learned trial court has carefully examine the evidence on record and also the exhibit-1 and was of the considered view that the accused neither adduce any rebuttal evidence to deny his signature in the exhibit-1, nor he prayed to the court, to send the exhibit-1 for forensic examination and mere denial of the signature, in the exhibit is of no help to the defence side. Thus, the learned trial court, on the basis of the evidence and witnesses found and hold that the accused person by making a false representation and false assurance, request the complainant to deliver him Rs.20,000/- assuring him to deliver a tempo vehicle which is a fraudulent pretext. The evidence of the complainant side was not at all doubtful towards false implication of the accused and by adducing corroborative oral and documentary evidence the complainant has firmly proved the accused petitioner has dishonest intention from the very inception to cheat the complainant while taking money and his prolong conduct itself indicative of fact that he has no intention to deliver the vehicle to the complainant as assured. That being the position, the offence of cheating is made out which is punishable under Section 417, instead of 420 IPC. The learned appellate court also upheld the judgment considering all the matters on record. 8. On a close scrutiny of the entire materials on record it appears that there is no irregularity and illegality in the concurrent findings of the court below. Accordingly, the impugned judgment and order is upheld as regards the conviction. The learned appellate court also upheld the judgment considering all the matters on record. 8. On a close scrutiny of the entire materials on record it appears that there is no irregularity and illegality in the concurrent findings of the court below. Accordingly, the impugned judgment and order is upheld as regards the conviction. However, considering the fact that the accused petitioner is under the legal battle since 2008 and the occurrence is of 2006 and it relates only to monetary transaction and the complainant is deprived of his hard earned money, so in my considered opinion it will met the ends of justice if the sentence of fine is imposed. Accordingly, while maintaining the conviction under Section 417 IPC, the accused person is hereby directed to pay a sum of Rs.40,000/- in default, RI for six months. The amount of fine if realised, be given to the complainant as a compensation. 9. With the above direction, the appeal is partly allowed. 10. Send down the LCR along with a copy of this judgment and order.