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Karnataka High Court · body

2019 DIGILAW 96 (KAR)

G. Lokesh v. State of Karnataka

2019-01-08

K.NATARAJAN

body2019
JUDGMENT : K. NATARAJAN, J. 1. This revision petition is filed under Section 397 of Cr.P.C. being aggrieved by the judgment of conviction and sentence passed by the I Addl. CMM, Bengaluru in C.C.No.2245/2000 for the offence under Section 420 IPC and confirmed by the Fast Track Court No. VIII in Crl.A.No.1408/2015 dated 26.11.2010. 2. The petitioner was the accused and the respondent-State was the complainant before the courts below. The same ranks of the parties are retained, for brevity. 3. The case of the prosecution is that PW-1 Indiramma has filed a private complaint under Section 200 Cr.P.C. as per Ex.P2/P9 (both are one and the same document) before the trial Court against the accused for the offence punishable under Section 420 IPC alleging that the accused is known to the complainant and her husband and that the accused had offered a site for sale to the complainant. Accordingly the agreement was entered into between them for a sale consideration of Rs.3,50,000/- and the accused said to have received Rs.2,70,000/- and executed Ex.P1, the agreement of sale, with the assurance to execute the sale deed within five months. But later, the complainant came to know that on 30.04.1997, a portion of the sale property has been sold by the accused by executing the sale deed in favour of his mother, Shivalingamma. Therefore the complainant filed the complaint before the trial Court. The same was referred under Section 156(3) of Cr.P.C. to the CCB police to register the crime and submit a final report under Section 173 of Cr.P.C. In turn, the DCP (Crime), Bengaluru City, forwarded the same to Hanumanthanagar Police. In turn, the Hanumanthanagar Police registered a case in Crime No.182/99 and issued FIR and subsequently investigated the case and filed the charge-sheet. The accused appeared before the Court and was released on bail. Then the charges were framed against the accused and he has pleaded not guilty and claimed to be tried. Later prosecution was called upon to adduce evidence. The prosecution, in all, examined 7 witnesses and 11 documents were marked and thereafter the statement of the accused under Section 313 of Cr.P.C. was recorded. The accused has denied the evidence of the prosecution. But not entered into any defence. Later prosecution was called upon to adduce evidence. The prosecution, in all, examined 7 witnesses and 11 documents were marked and thereafter the statement of the accused under Section 313 of Cr.P.C. was recorded. The accused has denied the evidence of the prosecution. But not entered into any defence. After hearing the arguments, the learned trial Judge found the accused guilty and convicted and sentenced to undergo simple imprisonment for 6 months with fine of Rs.5,000/-, and in default of payment of fine, to further undergo simple imprisonment for 2 months. 4. Being aggrieved by the same, the petitioner preferred the appeal before the City Civil and Sessions Court and the same was made over to the Fast Track Court No. VIII and numbered as Crl.A.No.1408/2005. After hearing the arguments, the learned Fast Track Court dismissed the appeal vide order dated 26.11.2010, by confirming the judgment of conviction and sentence passed by the trial Court. Being aggrieved by the same, the petitioner preferred this revision on various grounds contending that the judgment of conviction and sentence are erroneous and the trial Court, not appreciated the evidence on record and not at all touching the cross-examination made by the accused that if the petitioner failed to execute the sale deed in favour of PW-1, liberty was given to PW-1 to approach the competent civil Court to get the sale deed executed in her favour and has passed the impugned judgment. The allegation is purely civil in nature which does not constitute criminal liability and the admission made by PW-1 that the Ex.P1-agreement was executed in the police station, was not appreciated by the court below and the counsel also disputed the evidence of PW- 3, handwriting expert, and hence prayed for allowing the petition. 5. Heard the learned counsel for the petitioner and the learned High Court Government Pleader. Perused the records. 6. The counsel for the petitioner strenuously argued that Ex.P1 is an agreement of sale which does not contain the date of its execution and as per the evidence of PW-2, the same was executed on 12.02.1996 whereas Ex.P1, the bond paper, has been purchased from PW-5, stamp vendor, on 20.12.1996 and as per PW-1, the agreement was said to be executed in the police station and she do not know anything about the contents of Ex.P1. The counsel also argued even if the case of the prosecution is admitted in toto, the offence would not attract Section 415 IPC to punish under Section 420 IPC. The recourse available to the complainant is to approach the competent Civil Court to file a civil suit for getting the execution of the sale deed as per the recital in the Ex.P1. Therefore prayed for setting aside the judgment. 7. In support of his contention, the learned counsel for the petitioner relied upon the following judgments of the Hon'ble Supreme Court: (A) NAGESHWAR PRASAD SINGH @ SINHA VS. NARAYAN SINGH & ANR. REPORTED IN, (1998) 5 SCC 694 (B) V. Y. JOSE & ANR. VS. STATE OF GUJARAT & ANR. REPORTED IN, (2009) 3 SCC 78 (C) INTERNATIONAL ADVANCED RESEARCH CENTRE FOR POWDER METALLURGY & NEW MATERIALS (ARCI) & ORS. VS. NIMRA CERGLASS TECHNICS PRIVATE LIMITED & ANR. REPORTED IN, (2016) 1 SCC 348 8. Per contra, the learned counsel appearing for the state contended that the accused executed the agreement of sale on 22.03.1999 as per the contents of the complaint. The court below rightly came to the conclusion that the accused executed the agreement of sale, but has not executed the sale deed, and thereby cheated the complainant after receiving Rs.2,70,000/- towards the earnest money. Hence the learned HCGP supported the case of the prosecution and prayed for dismissing the revision petition. 9. On perusal of the evidence of the prosecution, especially PW-1 and PW-2 who are the complainant and son of the complainant, respectively. As per the evidence of PW-1, PW-2 knows the transaction and the accused agreed to sell the property and received the amount of Rs.2,70,000/- and agreed to execute the sale deed by receiving the remaining amount of Rs.80,000/-. But in the cross-examination, she has categorically admitted that she do not know the contents of Ex.P1 and she says that the entire transaction is known to her son, PW-2, and she also stated that Ex.P1 was executed in the police station. She also admitted in the cross-examination at page-4 that she also do not know the contents of the complaint, the Ex.P2, and she pleads everything is known to her son, PW-2. She also admitted in the cross-examination at page-4 that she also do not know the contents of the complaint, the Ex.P2, and she pleads everything is known to her son, PW-2. She also stated that she do not know as to whether as on the date of alleged sale talks or as on the date of Ex.P1, any site so mentioned at Ex.P1, was standing in the name of the accused or not. On perusal of the evidence of PW-2, in the examination-in-chief itself he has categorically stated that the deed of agreement came into existence in the house of his father at Guttahalli Village on 12.02.1996 and his father had paid Rs.2,50,000/- on that day. PW-2 has further admitted that in the month of April 1996, the accused and his father came to him and demanded another Rs.20,000/- to get the under valuation matter settled, and thereby he has given in all Rs.2,70,000/-. The evidence of PW-2 in his examination-in-chief goes to show that agreement of sale was said to be executed on 12.02.1996, whereas Ex.P1 which is a stalk document, does not reveal any date of its execution. On the backside of the bond paper it is mentioned that it was purchased on 20.12.1996 from the stamp vendor. The stamp vendor who is examined as PW-5 has categorically stated that the paper was sold to one Mr. G. Lokesh on 20.12.1996. 10. The evidence of PW-2 contradicts the complaint, Ex.P2/P9. As per the complaint, the agreement of sale was said to have been executed on 22.03.1999, whereas in the examination-in-chief of PW-2, he has stated that the same was executed on 12.02.1996. In the cross-examination, PW-2 admits he has not issued any legal notice to the accused on his failure to execute the sale deed. He further admitted in the cross-examination that the accused had not offered the site for sale to his mother in his presence, and he has stated that he was present only at the time when the agreement of sale came into existence and earnest money was paid to the accused. He has also admitted that Ex.P1 was undated. There are clear contradictions and inconsistency in their evidence regarding transaction and execution of Ex.P1. 11. The evidence of PW-1 & PW-2 and the admission made by them in the cross-examination was not at all considered and appreciated by both the courts below. He has also admitted that Ex.P1 was undated. There are clear contradictions and inconsistency in their evidence regarding transaction and execution of Ex.P1. 11. The evidence of PW-1 & PW-2 and the admission made by them in the cross-examination was not at all considered and appreciated by both the courts below. The judgment of the trial Court goes to show that the judgment was passed only on considering the examination-in-chief of PW-1 to PW-7. Absolutely there is no finding given by the trial Court in respect of the admission made by PW-1 with regard to the execution of Ex.P1 in the police station and not knowing the contents of the complaint. Even the First Appellate Court has not given any finding on this point. Even the trial Court erred in not formulating any point for consideration to prove the guilt of PW-1 by prosecution. There is no whisper even in the judgment passed by the Fast Track Court in respect of formulating the point for consideration to prove the guilt of the accused. Thereby both the courts erred in passing the judgment without formulating a proper point for consideration to prove the guilt of the accused. Though these are the irregularities which can be cured under Section 464 Cr.P.C., but both the courts have not considered the evidence of PW-1 and PW-2 properly with regard to the fact that the dispute between the complainant and the accused is purely civil in nature and in this regard, reliance has been placed by the learned counsel for the petitioner on the following identical cases, wherein the Hon'ble Supreme Court has held as under: (1) In the case of NAGESHWAR PRASAD SINGH @ SINHA VS. SNARAYAN SINGH & ANR. REPORTED IN, (1998) 5 SCC 694 , at para-3 it has held as under : "3. The latter part thereof illustrates that at the time when agreement for sale was executed, it could have in no event been termed dishonest so as to hold that the complainants were cheated of the earnest money, which they passed to the appellant as part-consideration, when possession of the total land involved in the bargain was passed over to the complainant-respondents, and which remains in their possession. Now, it is left to imagine who would be interested in delaying the matter in completing the bargain when admittedly the complainants have not performed their part in making full payment. Now, it is left to imagine who would be interested in delaying the matter in completing the bargain when admittedly the complainants have not performed their part in making full payment. The matter is therefore before the civil Court in this respect. The liability, if any, arising by the breach thereof is civil in nature and not criminal. We therefore allow this appeal, and set aside not only the impugned orders of the High Court, but quash the proceedings too which are pending before the Magistrate. The complainant-respondents shall pay compensatory costs to the appellant for these vexatious proceedings which we assess at Rs.10,000/- which the respondents are directed to pay to the appellant within six weeks from today." (2) In the case of V. Y. JOSE & ANR. VS. STATE OF GUJARAT & ANR. REPORTED IN, (2009) 3 SCC 78 , at para-14, it has held as under : "14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: (i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) Fraudulently or dishonestly including any person to deliver any property; or to consent that any person shall retain any property and finally intentionally including that person to do or omit to do anything which he would not do or omit. For the purpose of constituting an 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. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out." (3) In the case of INTERNATIONAL ADVANCED RESEARCH CENTRE FOR POWDER METALLURGY & NEW MATERIALS (ARCI) & ORS. VS. NIMRA CERGLASS TECHNICS PRIVATE LIMITED & ANR. REPORTED IN, (2016) 1 SCC 348 , at para-15 and 16, it has held as under : "15. VS. NIMRA CERGLASS TECHNICS PRIVATE LIMITED & ANR. REPORTED IN, (2016) 1 SCC 348 , at para-15 and 16, it has held as under : "15. The essential ingredients to attract Section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security; and (iii) mensrea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant. 16. The distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a 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. On the other hand if all that is established is that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil Court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. In S. W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 , this Court held as under: "21. .. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating." 12. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating." 12. The Hon'ble Supreme Court in all the above cases has clearly held that the dispute between the parties are purely breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. In the present case, the accused is said to have executed the agreement of sale in favour of the complainant for selling the site by receiving Rs.2,70,000/- and he has not executed the sale deed and thereby he has failed to perform his part of the contract. This is clearly a civil dispute between the parties as per the recital in the agreement, Ex.P1. The recourse available to the complainant is only to file a civil suit under the Specific Relief Act for execution of sale deed in favour of the complainant for nonperformance of the contract by accused. But PW-1 and PW-2 clearly admitted that they have not filed any civil case against the accused and no notice was issued against the accused either by PW-1 or by PW-2. Though the signature of the accused on Ex.P1 was said to be proved by the prosecution by examining PW-3, Jayadevi, but the competency of the opinion of PW-3 was disputed by the counsel for the petitioner on the ground that this Court has already held in Writ Petition No.40154/10 that examination of the thumb impression and the signature cannot be done by a person who is not qualified to do so, and to give opinion. The said Jayadevi was not a competent person or qualified person to give opinion. Even on perusal of the evidence of PW-3, Jayadevi, she has admitted in the cross-examination that she has not obtained any qualifying certificate from Calcutta University or any other University or technical institution approved by the government to examine the documents, handwritings and signatures. The said admission was not at all considered by both the courts below, while accepting the evidence of PW-3, which is also erroneous. The said admission was not at all considered by both the courts below, while accepting the evidence of PW-3, which is also erroneous. On perusal of the evidence of the prosecution, it is admitted that the accused has executed the agreement of sale to execute the sale deed in favour of the complainant. But, the prosecution has failed to prove that the accused executed the agreement of sale in favour of the complainant on the alleged date and the recourse available to the complainant was only to file a civil suit under the Specific Relief Act, but not file a complaint against the accused-petitioner. These points were not at all considered by the courts below. Therefore, the judgment of conviction and sentence passed by the trial Court and confirmed by the Appellate Court, are illegal and erroneous and are liable to be set aside. 13. The contention of the learned Government Pleader cannot be accepted that the accused executed the agreement of sale and thereby has cheated the complainant. The very provision of Section 415 IPC clearly states that the intention of the accused to cheat the complainant must be from the inception of the commission of offence. Therefore, if the accused fail to execute the sale deed even after two years of executing the agreement of sale, it would not attract the offence under Section 415 IPC to punish under Section 420 IPC as there was no intention to cheat the complainant. Therefore, the judgment of conviction and sentence passed by both the courts below call for interference of this Court. Accordingly I pass the following order: The petition is allowed. The judgment of conviction and sentence passed by the I Addl. CMM, Bangalore in C.C.No.2245/2000 dated 27.10.2005, and the judgment in Crl.A.No.1408/2005 passed by the Fast Track Court-VIII, Bangalore City dated 26.11.2005, are hereby set aside. The accused is acquitted of the charges leveled against him and the bail bond stands cancelled. If any fine amount is deposited, the same shall be refunded to the accused. Intimate the Courts below and send back the LCRs.