Orissa High Court
State Of Orissa vs Ananda Chandra Das on 9 August, 2016
Equivalent citations: 2016 CRI. L. J. 4206, (2016) 166 ALLINDCAS 670 (ORI), (2016) 65 OCR 87, 2016 (4) CRIMES 538 SN
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
Government Appeal No. No. 86 of 1997
From the judgment and order dated 08.12.1995 passed by the
learned Chief Judicial Magistrate, Cuttack in Vig. G.R. Case No.31
of 1989.
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State of Orissa ......... Appellant
-Versus-
Ananda Chandra Das ......... Respondent
For Appellant: - Mr. Sanjay Kumar Das
Standing Counsel, Vigilance
For Respondent: - Mr. Sanatan Jena
S.P. Mohanty, L. Jena
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of hearing- 07.06.2016 Date of Judgment- 09.08.2016
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S. K. SAHOO, J.This is an appeal under section 378 (1) and (3) of the Code of Criminal Procedure preferred by the State of Orissa challenging the impugned judgment and order dated 08.12.1995 passed by the learned Chief Judicial Magistrate, Cuttack in Vig. G.R. Case No.31 of 1989 in acquitting the respondent Ananda Chandra Das of the charge under section 420 of the Indian Penal 2 Code for commission of the offence of cheating as against the informant.
2. The prosecution case as per the First Information Report (Ext.5) lodged by Rabindra Mohan Sahoo (P.W.7) before Superintendent of Police, Vigilance, Cuttack Division, Cuttack on 07.09.1989 was that the informant had passed P.E.T. (Physical Education Teacher) training in the year 1981-82. He appeared in an interview conducted by Harijan & Tribal Welfare Department, Bhubaneswar for the post of P.E.T. on 25.05.1986. Two to three days after facing the interview, the informant met the respondent at Baramba who was serving as a teacher in Damangadia U.P. School. The respondent told the informant that he had got close acquaintance with some of the officers of Harijan & Tribal Welfare Department and he would secure a job in the event the informant pays bribe to those officers. The respondent asked the informant to arrange the bribe amount and after three days, the respondent called the informant and told him that he had talked with the officers and they had agreed to give the informant a job on getting Rs.13,000/-. With much difficulty, the informant arranged a sum of Rs.12,200/- and handed over the same to the respondent on 19.06.1986 near the Baramba Court premises in presence of co-villager Chandrakanta 3 Sahoo (P.W.1) and another Dilip Kumar Das (P.W.3) of village Krushnachandrapur. In spite of fulfilling the demand of the respondent, the informant was not provided with a job as assured and on being asked about the same, the respondent on different pretext took time to do the needful. On 26.08.1988, the informant crossed the age of twenty eight years which was the maximum age limit for getting a government job and accordingly, he asked the respondent to refund the money but the respondent did not comply. The informant complained before the gentlemen against the respondent for which a meeting was convened on 20.09.1988 near Baramba weekly market in the house of one Abhaya Charan Choudhury (P.W.5) and in the said meeting, apart from P.W.5, Rabindra Kishore Rana, Laxminarayan Pattnaik, Mahendra Kumar Mohapatra and Chandrakanta Sahoo (P.W.1) were present. In presence of all the gentlemen, the respondent admitted to have taken the money from the informant but told that he had spent Rs.3,000/- on account of his frequent visit to Bhubaneswar. The gentlemen after hearing from the respondent, asked him to refund the balance of Rs.9,200/- to which the respondent agreed but in spite of repeated assurance, the respondent did not fulfill his promise for which the informant first complained before Baramba Police Station and as the same did not yield any result, he 4 presented the First Information Report before Superintendent of Police, Vigilance.
3. On the basis of such written report, the Superintendent of Police, Vigilance directed the Officer in Charge of Vigilance Police Station, Cuttack to register the case and accordingly, Cuttack Vigilance P.S. Case No.31 of 1989 was registered on 07.09.1989 under section 420 of the Indian Penal Code and P.W.8 Keshab Chandra Sethi, Inspector of Vigilance, Cuttack was directed to take up investigation.
During course of investigation, P.W.8 examined the informant, visited the village of the informant and examined some witnesses. He also visited the spot and prepared a spot map (Ext.7) and seized a Panchayat Rufanama on 11.09.1989 under seizure list (Ext.4) in presence of the witnesses and also seized Station diary entry book of Baramba Police Station containing the entries from 06.01.1989 to 23.02.1989 under seizure list (Ext.8). The station diary entry dated 06.02.1989 indicated that it was made by A.S.I. Laxman Kumar Swain of Baramba Police Station on the oral report of the informant who had made similar allegation as made in the F.I.R. (Ext.5) presented before the Vigilance Police. P.W.8 arrested the respondent on 12.09.1989 and on completion of investigation, he 5 submitted charge sheet against the respondent on 19.10.1990 under section 420 of the Indian Penal Code.
4. The defence plea of the respondent was one of denial and it was pleaded that P.W.1 Chandrakanta Sahoo who was serving as a Steno in Baramba Court had coal business. The respondent had taken coal from P.W.1 and there was dissention between them in connection with the rate of the coal. It was further pleaded that P.W.1 had done certain irregularities in a case record which was seized at the behest of the respondent for which he was very much aggrieved against the respondent. It is the further defence plea that P.W.3 Dilip Kumar Das was the cousin brother of the respondent and there was civil dispute between the two families. The informant was the cousin brother of P.W.1 who has been set up by P.W.1 to foist a false case against the respondent.
5. On 28.06.1991 the learned Trial Court framed charge under section 420 of the Indian Penal Code against the respondent on the accusation that on 19.06.1986 he cheated P.W.7 dishonestly inducing him to pay Rs.12,200/- for arranging P.E.T. service in H & T.W. Department for him and accordingly, P.W.7 paid the said amount to the respondent to get the said 6 service but the respondent neither arranged the service for P.W.7 nor refunded the said amount to him.
6. During Course of trial, in order to prove its case, the prosecution examined eight witnesses.
P.W.1 Chandrakanta Sahoo was attached to the Court of J.M.F.C., Barmba as Stenographer in Court and he was a witness to the assurance given by the respondent to the informant to get him selected for the P.E.T. Teacher post and also taking cash of Rs.12,200/- from the informant for that purpose and not refunding the money even though he had failed in complying his assurance. He is also a witness to the Rufanama (Ext.1).
P.W.2 Kapileswar Sahu stated to have paid Rs.5000/- to the informant for making payment to the respondent in connection with arranging a job for the informant. He further stated that neither the respondent arranged the service nor he refunded the money of the informant.
P.W.3 Dilip Kumar Das stated that in his presence, the informant paid Rs.12,200/- to the respondent.
P.W.4 Kalinga Keshari Sahu stated to have paid Rs.5000/- to the informant for making necessary payment to the respondent in connection with arranging a job for the informant. 7 He is a witness to the seizure of Rufanama under seizure list Ext.4.
P.W.5 Abhaya Charan Choudhury and P.W.6 Amiya Pattanaik did not support the prosecution case for which they were declared hostile.
P.W.7 Rabindra Mohan Sahoo is the informant in the case. He also stated about the seizure of Rufanama under seizure list Ext.4.
P.W.8 Keshab Chandra Sethi was the Inspector of Vigilance, Cuttack who was the Investigating Officer of the case.
The prosecution exhibited nine documents. Ext.1 is the Rufanama, Ext.2 is a letter dated 05.12.1990 written by the respondent, Ext.3 is an envelope, Ext.4 is the seizure list, Ext.5 is the written report, Ext.6 is the Chuktinama, Ext.7 is the spot map, Ext.8 is another seizure list and Ext.9 is the Station diary entry.
The defence examined two witnesses i.e. D.W.1 Antaryami Pradhan and D.W.2 Ramesh Chandra Pradhan who stated that they did not know the informant and they were not examined by the police.
7. The learned Trial Court after analyzing the evidence on record has been pleased to hold that P.W.1 and P.W.7 are the 8 only witnesses examined by the prosecution to speak about inducement by the respondent to P.W.7 to part with some money on the assurance of getting him selected for the post of P.E.T. in the H & T.W. Department and at that time neither P.W.2 nor P.W.4 was present and they only knew subsequently that the respondent would get money for getting the informant selected for the post of P.E.T. The learned Trial Court further held that P.W.1 and P.W.7 speak different stories and thereby their evidence are discrepant and therefore, much reliance cannot be placed on their evidence with regard to inducement made by the respondent to P.W.7 to part with some money to be selected for the post of P.E.T. The learned Trial Court further held that Ext.1 is the compromise document between the parties but it has not been signed by the respondent and non-signing of Ext.1 by the respondent creates a suspicion regarding the execution of Ext.1 in presence of the respondent and Ext.1 has been scribed by the informant himself. The learned Trial Court further held that P.W.7 does not speak about any meeting held on 25.9.1988 as has been stated in Ext.1 and P.W.5 and P.W.6 do not support the contents of Ext.1 and therefore, Ext.1 appears to be a suspicious document. The learned Trial Court further held that though P.W.7 has deposed that in the first week of January or February 1990, Ext.6 was executed but when charge sheet was submitted on 9 19.10.1990, Ext.6 was not produced with the charge sheet by the I.O. and it was filed in Court by P.W.7 during trial. It was further held that when the respondent denied to have executed Ext.6 in the accused statement and such document was not sent to the handwriting expert for his opinion and it was not produced during the stage of investigation before the Investigating Officer, no reliance can be placed on Ext.6. The learned Trial Court further held that on closer scrutiny of the evidence, there was no sufficient, reliable, clear and cogent evidence to prove payment of money by P.W.7 to the respondent and therefore, the question of refund of money by the respondent to P.W.7 does not arise and the prosecution has not been able to prove the ingredients of the offence under section 420 of the Indian Penal Code against the respondent.
8. Mr. Sanjay Kumar Das, learned Standing Counsel for the Vigilance Department appearing on behalf of the appellant contended that the learned Trial Court has not properly appreciated the evidence of P.W.1 and P.W.7 who are consistent and there was no reason to discard their evidence. He further urged that the learned Trial Court should not have disbelieved the evidence of P.W.2 and P.W.7 regarding advancing a friendly loan to P.W.7 for getting a service. It was further urged that the 10 evidence of P.W.7 gets corroboration from P.W.5 and P.W.6 who have signed Ext.1. It was contended that the reasonings assigned by the learned Trial Court for acquitting the respondent is quite faulty and unreasonable and since the impugned judgment of the learned Trial Court is highly unreasonable and the view taken therein is not sustainable, the same should be set aside and the respondent should be convicted of the offence charged.
The learned counsel for the respondent on the other hand supported the impugned judgment and submitted that when there was no documentary evidence relating to appearance of the informant in any interview for the post of P.E.T. or acceptance of money by the respondent from the informant and there is no documentary evidence that any money was taken by the informant from P.W.2 and P.W.4 to fulfill the demand of the respondent, it cannot be said that there is any scope for interference in the appeal against acquittal.
9. In order to establish the charge under section 420 of the Indian Penal Code, the guilty intention on the part of the accused must be adduced by the prosecution beyond all reasonable doubt. It is to be established that the accused had dishonest or fraudulent intention at the time when the victim 11 parted with the money. Unless there is fraudulent or dishonest intention at the time of making promise or representation, mere failure to keep up the promise subsequently cannot ipso facto attract the ingredients of the offence. The offence of 'cheating' is made up two ingredients i.e., deception of any person and inducement of that person to deliver any property to any person or to consent that any person shall retain any property by fraudulently and dishonestly. The requirement of 'dishonestly' as defined under section 24 of the Indian Penal Code can be satisfied only if there was an intention to make wrongful gain on the part of the person cheating or an intention to cause wrongful loss to the person cheated. If the dispute is basically civil in nature, no criminal proceeding can be initiated though it is not the law that merely because civil proceeding was pending between the parties, criminal proceeding can never proceed. Both criminal law and civil law remedy can be pursued in diverse situations and they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. Both the proceedings are separate, independent and cannot abate or defeat the other.
10. The star witness on behalf of the prosecution is none else than the informant Rabindra Mohan Sahoo (P.W.7). The 12 reason assigned by P.W.7 to part with cash of Rs.12,200/- and handing over the same to the respondent was that he faced an interview for the post of Physical Education Teacher in the H & T.W. Department, Bhubaneswar and the respondent gave him assurance to arrange that job for him. Neither any interview call letter nor any other document has been proved on behalf of the prosecution to substantiate that there was any such interview and that P.W.7 appeared in such interview. P.W.7 has stated that during investigation, the Vigilance police had not seized any document relating to his appearance in P.E.T. interview and he cannot say if any such document was available with him. Thus the prosecution has failed to bring any documentary evidence to substantiate the oral evidence of P.W.7 that he faced an interview for the post of P.E.T. in the H & T.W. Department.
P.W.7 stated that two to three days after the interview, he had come to Baramba and discussing about the interview with P.W.1 and at that time the respondent came there voluntarily and took part in the discussion and suggested for arranging some money for being selected for the post. P.W.1 on the other hand stated that in the last part of May 1986, when he was in his quarters at Baramba, P.W.7 came to him and told that the respondent was telling him that if would pay Rs.12,200/- to him, he would make him selected for the post of P.E.T. teacher. 13 Thus the version of P.W.1 and P.W.7 are contradictory to each other. It appears from the evidence of P.W.1, as if there was some earlier discussion between P.W.7 and the respondent and the respondent had also indicated the amount required for arranging the job whereas from the evidence of P.W.7, it appears that the discussion between him and the respondent was made for the first time in presence of P.W.1. It further appears from the evidence of P.W.7 that the amount was not quoted at the first instance in presence of P.W.1 and two to three days after the first meeting, the respondent quoted Rs.13,000/- for the selection of the post and subsequently P.W.7 arranged Rs.12,200/-. Thus it appears from the evidence of the P.W.7 that the respondent never gave the figure of Rs.12,200/- as stated by P.W.1. Therefore, the evidence of P.W.1 that P.W.7 came to his quarters and told him that the respondent was asking Rs.12,200/- is not acceptable.
Similarly there is no documentary evidence that the P.W.7 paid Rs.12,200/- to the respondent to arrange the job for which P.W.7 had already faced an interview. At that point of time, Rs.12,200/- was not a small amount for a person like P.W.7 and it was not expected that he would hand over such a huge amount to the respondent without any receipt or any other document.
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The respondent was a teacher in Damangadia U.P. School and he belonged to village Krushnachandrapur under Baramba Police Station and P.W.7 is a man from village Siaria under Kanpur Police Station. P.W.7 had not stated that earlier he had got close acquaintance with the respondent rather he stated that he knew the respondent after 25.5.1986 which is the date of facing interview. In such a situation, it is highly unbelievable that P.W.7 would believe the respondent so easily and hand over Rs.12,200/- to him without any documentary proof.
The evidence of P.W.7 indicates that he arranged Rs.5,000/- each from P.W.2 and P.W.4. P.W.2 has stated that he had not kept any paper to show that he had advanced loan of Rs.5,000/- to P.W.7. He further stated that no other person was present when he gave cash of Rs.5,000/- to P.W.7. Similarly P.W.4 stated that nobody was present when he paid money to P.W.7 and he did not obtain any receipt from him. Thus even though P.W.7 stated to have taken money from P.W.2 and P.W.4 to make payment to the respondent but to that effect also there is no documentary evidence.
Even though the prosecution has relied upon Ext.1 which is stated to be a document of compromise between the parties and styled as Rufanama but it does not bear any signature of the respondent. From the Rufanama which is dated 15 16.01.1989, it appears that on an application given by P.W.7, it was decided in a meeting held on 25.09.1988 that the respondent would refund a sum of Rs.9,200/- to P.W.7 by 31.12.1988 after deducting his expense of Rs.3,000/- and that the respondent admitted to have taken Rs.12,200/- from P.W.7. The Rufanama further indicates that the date of repayment was rescheduled to 15.01.1989 and then to 30.01.1989 on the request of the respondent. No further documentary evidence is available relating to the proceedings of the meeting dated 25.09.1988 or thereafter. P.W.5 and P.W.6 are stated to be the witnesses to the said Rufanama but they have not supported the prosecution case. Even P.W.7 has also not stated in detail what was mentioned in Ext.1. Therefore, in my humble view, the learned Trial Court was justified in holding that Ext.1 appears to be a suspicious document.
Similarly, Ext.6 which is stated to be a Chuktinama between the parties was executed on 01.02.1990 in which the signature of one Ananda Chandra Das appears. The respondent has disputed this signature in his accused statement. The document was not sent to handwriting expert for verification and opinion by comparing with the admitted signature of the respondent. Charge sheet was placed on 19.10.1990 but P.W.7 did not produce such a vital document before the Investigating 16 Officer during course of investigation and therefore, the learned Trial Court was justified in holding that no reliance can be placed on Ext.6.
11. On consideration of the materials available on record as well as on going though the findings of the learned Trial Court, it cannot be said that the view taken by the learned Trial Court in acquitting the respondent is palpably wrong or manifestly erroneous rather it appears to be a reasonably possible view.
Law is well settled that in a case of appeal against acquittal, even if two views are possible, the Appellate Court should not interfere with the conclusions arrived at by the learned Trial Court unless the conclusions are not possible even though the Appellate Court had no limitation on its power to reverse an order of acquittal which has resulted in miscarriage of justice by way of review, reappreciation and reconsideration of the entire evidence.
On careful analysis, it appears that there are discrepancies in the evidence of the witnesses and there is lack of documentary evidence in support of the oral evidence and the documentary evidence which have been brought on record by the prosecution are suspicious and therefore, on making independent assessment of evidence, I find no infirmity or 17 perversity in the impugned judgment of the learned Trial Court and accordingly, the impugned judgment and order of acquittal is upheld and the Government Appeal stands dismissed.
The respondent has been released on bail by the learned Trial Court by virtue of the order of this Court dated 1.2.1997. He is discharged from the liability of his bail bond. His personal bonds and surety bonds stand cancelled.
In the result, the Government Appeal stands
dismissed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack
The 9th August 2016/Sisir