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2020 DIGILAW 101 (TRI)

Uttam Deb v. State of Tripura

2020-07-27

S.TALAPATRA

body2020
JUDGMENT : S. Talapatra, J. 1. The petitioner being the convict has challenged the judgment and order of conviction and sentence dated 03.01.2015 delivered in case No. PRC 616 of 2011 by the Judicial Magistrate, First Class, Udaipur, Gomati Tripura by means of this revision petition, filed under Section 397 read with Section 401 of the Cr.P.C. inasmuch as the said judgment and order of conviction and sentence have been upheld by the Additional Sessions Judge, Gomati Judicial District, Udaipur by his judgment and order dated 16.03.2016 in Criminal Appeal 05(1)/2015. 2. The prosecution against the petitioner had been initiated on the basis of a complaint [Exbt. 1] filed by one Rangalal Sutradhar stating that he had given Rs. 15,000/- to the petitioner on 17.09.2010 being induced that the said money would be invested in UNIPAY 2 U, a non-banking financial company in presence of witnesses. Again, the said complainant gave a sum of Rs. 30,000/- to the petitioner in order to deposit in UNIPAY 2 U, the said non-banking financial company, in the name of his wife, Smt. Beauty Sutradhar. The said money was paid to the petitioner according to the complainant in presence of the witnesses. Again on 30.12.2020, the complainant gave another sum of Rs. 15,000/- to the petitioner to deposit the same in the name of his wife in presence of the witnesses. Lastly, on 13.02.2011, the complainant gave another sum of Rs. 30,000/- to the petitioner to deposit the same in UNIPAY 2 U, the said non-financial banking company to be deposited in the name of his daughter namely Padma Sutradhar. In the same manner, the complainant had made investment of Rs. 1,20,000/- through the petitioner to UNIPAY 2 U, the said non-banking financial company. Later on, the complainant came to know 'from the office of the UNIPAY 2 U', the said non-banking financial company that the petitioner did not invest the said amount, even though he had received the amount from the complainant. Being defrauded thus, the said complaint was filed by Rangalal Sutradhar. 3. Based on the said complaint, made to the Officer-in-Charge, Kakraban P.S. Case No. 157/2011 under Section 420 of the IPC was registered on 21.09.2011. On completion of the investigation the final police report was filed sending up the petitioner to face the trial under Section 420 of the IPC. 3. Based on the said complaint, made to the Officer-in-Charge, Kakraban P.S. Case No. 157/2011 under Section 420 of the IPC was registered on 21.09.2011. On completion of the investigation the final police report was filed sending up the petitioner to face the trial under Section 420 of the IPC. When the charge was framed for committing offence punishable under Section 420 of the IPC on taking cognizance, the petitioner had denied the charge and claimed to be tried in accordance with law. It would be apparent from the records that the prosecution adduced as many as 9 (nine) witnesses and some documentary evidence [Exbt. 1-Exbt. 3]. On recording the prosecution, evidence the petitioner was examined under Section 313 of the Cr.P.C., when the petitioner reiterated his plea of innocence. No evidence has been led by the petitioner in his defence. Thus, on appreciating the evidence led by the prosecution by the judgment dated 03.01.2015 the petitioner has been convicted under Section 420 of the IPC having observed as under: "In this case, on consideration of the prosecution evidences as a whole one thing is clear that the accused with dishonest intention taken money from the complainant on various dates for depositing the same but failed to deposit the same and committed cheating. In this case, it is also proved by all the prosecution witnesses by giving cogent and corroborative evidence that the accused was known as agent of UNIPAY 2 U, Non Banking Financial Company and the accused has taken money from various persons for depositing the same in the said company but did not deposit the same in the company and, therefore, it is very natural and believable that the accused also taken money from the complainant for the said purpose and failed to deposit the same. Besides this, in the present society, it is common knowledge that many agents are running the business of collecting money from the various people for opening policy and in such circumstances, it is very reasonable and believable that the accused taken money from the complainant as deposed by the prosecution witnesses in the name of company and failed to deposit the same in the company." [Emphasis added] 4. The trial judge has also recorded his finding that the prosecution has proved the allegations in the complaint (Exbt. 1). The trial judge has also recorded his finding that the prosecution has proved the allegations in the complaint (Exbt. 1). It has been observed that the evidence of PW-1[the complainant] is corroborated by PW-7, Sri Sandhya Mohan Datta [the scribe] and PW-3 [Haripada Paul]. Even PW-6, Indrajit Debnath according to the trial judge, has corroborated supported the prosecution case. The trial judge has further observed that in the circumstances of the case, the delay in filing of the FIR is not fatal for the prosecution case as the complainant had been waiting on the assurance of the petitioner. When the assurance was proved to futile, the complaint was filed. The petitioner has been convicted fundamentally on the observation as reproduced. 5. Being aggrieved by the said judgment of conviction dated 03.01.2015 the petitioner filed the appeal under Section 374(3) of the Cr.P.C. being Criminal Appeal No. 05(1)/2015 in the court of the Sessions Judge, Gomati Judicial District, Udaipur. For determination of the appeal, the said appeal was transferred to the court of the Addl. Sessions Judge, Udaipur and by the judgment dated 16.03.2016 the said appeal was dismissed upholding the said judgment dated 03.01.2015. In the said judgment dated 16.03.2016, the appellate court has observed that in the case in hand though there is no documentary proof regarding payment by the complainant to the petitioner, but the fact of payment has been proved by the testimonies of PWs 2, 5 and 8. Hence, there is no reason to disbelieve those corroborative evidence. Perusal of the evidence also reveals that during the cross-examination of the witnesses, no statement of those witnesses [PWs 2, 5 and 8] could be dented and they stood by their statement made in the examination-in-chief. The appellate court has affirmed the finding of the trial court that the delay in filing the complaint is not fatal for the prosecution and as such, the conviction under Section 420 suffers from no infirmity inasmuch as 'cheating' as defined under Section 415 has been well-proved. 6. The appellate court has also observed that the dishonest intention has been proved for the 'conduct' of the petitioner from the very inception of the transaction and thus, the inducement defraud has been well substantiated to attract conviction under Section 420 of the IPC. The present petition as stated earlier has challenged the said judgment dated 16.03.2016 passed in the appeal. 7. Mr. The present petition as stated earlier has challenged the said judgment dated 16.03.2016 passed in the appeal. 7. Mr. S. B. Deb and Mr. S. Sarkar, learned counsel appearing for the petitioner has quite succinctly contended that fundamental ingredients to constitute the offence punishable under Section 420 of the IPC could not be proved by the prosecution inasmuch as it is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. [Uma Shankar Gopalika vs. State of Bihar and Another reported in (2005) 10 SCC 336 ]. 8. The counsel for the petitioner has, having referred to the testimonies of the complainant, submitted that the non-banking financial company namely UNIPAY 2 U has not been charged for committing offence of cheating under Section 420 of the IPC. PW-1 has asserted that on several occasions, he visited the house of the petitioner to collect the money receipt but the petitioner had replied that he had not purchased the printer and therefore he could not give the money receipt against the amount that he had received. The petitioner had also stated that the interest along with principal amount will be transferred to the complainant's account but that was not so done. Thereafter, PW-1 has made the following statement: "I also enquired about the Company but it reveals that there does not exist any company in the name of UNIPAY 2 U, Non Banking Financial Company." By the name of the said company, the petitioner has cheated the complainant. The statement in respect of inducement by the petitioner was not found in the previous statement of the complainant [PW-1], even though PW-1 has asserted that he had made such statement to the police officer. In the cross-examination, PW-1 has stated that: "It is fact that Ashish Datta, Haripada Paul, Indrajit Debnath and Sib Sankar Debnath, Alikul Laskar and Kanu Shil are my neighbours. It is fact that whenever a new account is opened the signature of the depository is mandatory. It is fact that neither myself nor my wife and daughter has put signature in any form of UNIPAY TO YOU, Non Banking Financial Company. It is fact that whenever a new account is opened the signature of the depository is mandatory. It is fact that neither myself nor my wife and daughter has put signature in any form of UNIPAY TO YOU, Non Banking Financial Company. It is not a fact that on 20.02.2010 I did not pay Rs. 60,000.00/- to the accused person above named to deposit the same in the account of my daughter any my wife in equal share. It is fact that on 30.12.2010 when myself along with Alikul Laskar and Sib Sankar Debnath visited the house of the accused person above named and paid Rs. 15,000.00/- to the accused above named to deposit the same in the account of my wife did not put any signature in the form of the said company. It is not a fact that myself along with Alikul Laskar and Sib Sankar Debnath did not visit the house of the accused person and did not pay Rs. 15,000.00/- to the accused to deposit the same in the account of my wife Smt. Beauty Sutradhar." The counsel for the petitioner has further pointed out that the complainant has claimed have deposited Rs. 30,000/- to the petitioner but he did not receive any interest along with the principal amount. In the cross-examination, PW-3 stated that on 17.09.2010 he saw the complainant paying Rs. 15,000/- to the accused person. 9. PW-3, Haripada Paul according to the counsel for the petitioner has simply stated that the complainant had deposited Rs. 30,000/- to the petitioner to deposit the same in his account. Even he had paid Rs. 18,000/- to the petitioner to deposit the same in his name. In the cross-examination, nothing could be achieved by the defence. But the counsel for the petitioner has submitted that if the testimony of PW-3 is scanned no element of inducement will be found from the inception of transaction nor there is any promise of delivery. 10. PW-4, Kanu Chandra Shil has stated that on September, 2010 he had paid Rs. 18,000/- to the petitioner to deposit the same in his name in the aforesaid company, but the petitioner did not give any money receipt. When he insisted for the money receipt, he had assured that interest along with the principal will be returned to his bank account, but that did never happened. 11. 18,000/- to the petitioner to deposit the same in his name in the aforesaid company, but the petitioner did not give any money receipt. When he insisted for the money receipt, he had assured that interest along with the principal will be returned to his bank account, but that did never happened. 11. PW-5, Shib Sankar Debnath has stated in the trial that one day, the petitioner came to his house and requested him to deposit money in the said company, but he was not convinced. One day, PW-1 requested to accompany him to go to the house of the petitioner. He had accompanied PW-1. In his presence, PW-1 deposited 15,000/- to the petitioner and again on 30.12.2010 in his presence, PW-1 deposited a sum of Rs. 30,000/-, but no money receipt for such deposit was given by stating that he had not purchased the printer. 12. PW-6, Indrajit Debnath had also deposited Rs. 60,000/- to the petitioner to open an account in the name of his daughter, Priyanka Debnath. When after two months, PW-6 asked for the money receipt he had stated him that the principal and interest will be transferred to his account, when the amount will be mature. 13. PW-7, Sandhya Mohan Datta has stated in the trial that he wrote the complaint at the dictation of PW-1. PW-8 has testified in the trial that the petitioner was an agent of UNIPAY 2 U, a non-banking financial company and he had received deposit from Rangalal Sutradhar [PW-1] in his presence sometime in December, 2010. In the cross-examination, he denied the suggestions made to him contrary to what he had stated in the examination-in-chief. 14. PW-9, Ranjit Das, a Sub-Inspector of police at the relevant time posted at Kakraban police station, has given a short narrative how he had conducted the investigation after he was entrusted with the case. He has also stated that he had examined PWs but very significantly he has testified in the course of cross-examination as follows: "PW-1 Sri Ranga Lal Sutradhar did not state to me that one day in the year 2010 Uttam Dey came to his house and requested him to open an account at UNIPAY 2 U, Non Banking Financial Company for which he will get higher interest. PW. PW. 1 also did not state to me that after five days again he visited the house of the above mentioned accused person and asked for money receipt for the said amount of Rs. 15,000/- and to this he told him to deposit Rs. 1,00,000/- and thereafter he will get the proper money receipt. PW. 1 also did not state to me that on several occasions he visited the house of the accused person above named asking him to give money receipt of the aforesaid amount paid to him and on several times he replied to him that he has not yet purchased the printer and therefore he cannot give the money receipt of the aforesaid amount and the accuser person above named also asked him his account number and told him that the interest along with the principal amount will be transferred to his account but till date he did not get any interest and not even his principal amount and he also told him that he cannot give the principal amount now as the company has not given the same to him and he also inquired about the company but it reveals that there does not exists any company in the name of UNIPAY 2 U, Non Banking Financial company." PW-9 has further stated in the cross-examination that: "PW-2 Sri Ashish Datta did not state to me that he has seen Uttam Deb at Palatana as Agent of UNIPAY to U Non Banking Financial Company. PW. 2 also did not state to me that after paying Rs. 30,000/- the accused above named in the name of the aforesaid company promised that the interest along with the principal amount will be transferred in his account. PW. 2 also did not state to me that on 17.09.10 he accompanied with the complainant of this case to the house of the accused above name at Dhuchikhola and have seen the complainant paying Rs. 15,000/- to the accused above named to open an account in the name of the complainant of this case and to deposit the dame in the name of the complainant under UNIPAY to U Non Banking Financial Company and the accused has also promised that the complainant will get the interest along with the principal amount in his account." Further, PW-9 has stated as follows: "PW. 3 Haripada Paul did not state to me that when he asked for money receipt the accused promised that the interest as well as the principal amount will be transferred to his account and he gave his account number and also his PAN card to the accused. PW. 3 also did not state to me that he along with Ashish data, Ranga Lal Sutradhar, Shib Sankar Debnath, Kanu Shil and others who were cheated by the accused above named and the name of the aforesaid company but he denied to receive any amount from them. PW. 4 Kanu Ch Shil did not state to me that accused did not give any money receipt of the said amount to him and on being asked he told him that the interest along with the principal amount will be transferred to his personal bank account. PW. 8 Sri Alikul Laskar did not state to me that he asked his deposited money back from Uttam Deb but he did not give him his money back." The counsel for the petitioner has therefore contended that the version based on which the conviction is returned are all and such improvement has come bare improved from the testimony of PW-9. 15. The counsel for the petitioner has, having referred to Mohd. Iqbal M. Shaikh and Others vs. State of Maharashtra reported in (1998) 4 SCC 494 , contended that when the embellishments are in respect of the substratum of the prosecution case, the court cannot place any reliance on such embellishment as those strike at the trustworthiness of witnesses. It has been contended by the counsel for the petitioner that there is no legal evidence against the petitioner to convict him under Section 420 of the IPC. 16. In Murari Lal Gupta vs. Gopi Singh reported in (2005) 13 SCC 699 it has been enunciated by the apex court that fraudulent or dishonest inducement unless is made coupled with delivery, the culpable act cannot be stated to be 'cheating by dishonest inducement' towards delivery of property. Such dishonest intention can be proved by direct evidence or it can be proved by circumstances from which a reasonable inference can be drawn. Further, mens rea at the time of inducing the person deceived to deliver any property to a person, is an essential ingredient to constitute an offence punishable under Section 420 of the IPC. Such dishonest intention can be proved by direct evidence or it can be proved by circumstances from which a reasonable inference can be drawn. Further, mens rea at the time of inducing the person deceived to deliver any property to a person, is an essential ingredient to constitute an offence punishable under Section 420 of the IPC. [Ajay Mitra vs. State of M.P. and Others reported in (2003) 3 SCC 11 ]. 17. From the other side, Mr. S. Debnath, learned Addl. P.P. has appeared for the respondent and he submitted that so far the dishonest inducement and delivery are concerned, those elements have been established by oral evidence. In the name of UNIPAY 2 U, the petitioner had collected money for purpose of investing the same in order to garner high return in the form of interest. What is most surprising is that even the company was not found to exist. Mr. Debnath, learned Addl. P.P. has submitted that the victim have come forward to testify in the trial and from their testimony it is apparent that the petitioner used to collect such money in the name of investing in the said company for high rate of interest. That apart, he had not given any money receipt nor any other sort of document laying down the conditions of such investment. It is thus apparent that from the very inception, the petitioner was with the culpable mind to deceive the complainant and the other victims. Thus, appreciation of evidence has been done by both the trial court and the appellate court without any aberration and hence, the finding of conviction as returned for such aggravated crime so deliberately done by the petitioner does not suffer from any infirmity. 18. Having appreciated the submission of the counsel for the parties and scrutinized the records of evidence, this court has confronted with three pertinent questions viz. (i) whether there is any legal evidence as to inducement? (ii) whether making of payment without any receipt or the agreement of high return can be believed in the course of human conduct? and (iii) whether the testimony of PW-9 in his cross-examination has irretrievably destroyed the fabric of the prosecution case? 19. The prosecution was launched on the basis of the complaint. The statements of the victims were recorded by the police station after long time of the occurrence. and (iii) whether the testimony of PW-9 in his cross-examination has irretrievably destroyed the fabric of the prosecution case? 19. The prosecution was launched on the basis of the complaint. The statements of the victims were recorded by the police station after long time of the occurrence. On scrutiny, no single line would be available in the complaint that at any point of time, the petitioner had introduced that if he had invested the money in UNIPAY 2 U, that it will fetch high return in the form of interest. Even when the statement of PW-1 was recorded during investigation (under Section 161 of the Cr.P.C.) he did not state to the investigating officer [PW-9] that such inducement was extended to him by the petitioner. The same PW-1 has stated in the trial that he had inquired about the company but it revealed that there did not exist any such company in the name of UNIPAY 2 U, non-banking financial company. But in the complaint PW-1 has categorically stated that subsequently he went to the office of UNIPAY 2 U marketing private limited company and on his query he could know that the petitioner did not deposit his money which he had given to the petitioner for investment in UNIPAY 2 U. This kind of diametrically opposite statements has taken out the credibility of PW-1. That apart, it is very difficult to believe that someone had been depositing money through an agent without asking for any receipt or without any agreement. No agreement can be complete without the signature of the depositor or the investor. PW-1 has categorically stated neither he nor his wife or daughter had ever signed any paper. As such, the story of making investment through the petitioner is visited by serious doubt and hence, the benefit would go to the petitioner. 20. PW-9 is the investigating officer and he had recorded their statements during the investigation. PWs 1, 2, 3, 4 and 8 have embellished their statement to ensure the conviction of the petitioner by completely deviating from their statement, recorded by the investigating officer during the investigation. The investigating officer [PW-9] has categorically stated that the facts of inducement for making payment or demanding for money receipt or denying to pay back the money were never stated to him. Thus, those testimonies have become susceptible to doubt. The investigating officer [PW-9] has categorically stated that the facts of inducement for making payment or demanding for money receipt or denying to pay back the money were never stated to him. Thus, those testimonies have become susceptible to doubt. Thus, the cumulative effect of such development is that the petitioner is entitled to get the benefit as there is no legal evidence to show there existed dishonest intention from inception of the transaction or the delivery of money was made under inducement. 'Cheating' by the petitioner has not been established beyond reasonable doubt. Even, there is no element of mens rea. In Harmanpreet Singh Ahluwalia and Others vs. State of Punjab and Others reported in (2009) 7 SCC 712 , it has been clearly held by the apex court that fraudulent or dishonest intention must exist at the time of initial promise or formation of contract. Such fraudulent or dishonest inducement at the inception of transaction has not been proved by the prosecution to the hilt. 21. In the result, the conviction under Section 420 of the IPC is liable to be interfered with and accordingly, it is so done. The impugned judgment and order dated 16.03.2016 delivered in Criminal Appeal 05(1)/2015 affirming the judgment dated 03.01.2015 delivered in PRC 616 of 2011 by the trial judge are set aside. For the same reason the judgment and order dated 03.01.2015 stand quashed. As consequence thereof, the petitioner is acquitted from the charge under Section 420 of the IPC on benefit of doubt. Since the petitioner is on bail, his sureties are discharged from their respective obligations. For the reasons and observation as stated above, this petition stands allowed. Send down the LCRs forthwith.