Bangalore District Court
The State Through vs Unknown on 5 January, 2016
IN THE COURT OF XXIV ADDL. CHIEF
METROPOLITAN MAGISTRATE, BANGALORE
DATED THIS THE 5TH DAY OF JANUARY 2016
C.C. No.29599/2007
Present: SRI. CHINNANNAVAR R. S.
XXIV ADDL. C.M.M., BANGALORE.
COMPLAINANT : The State through
Hanumanthanagar Police Station
(State by Sr. A.P.P.)
V/s.
ACCUSED :
Naresh Kumar S/o. Kallaiah,
Aged about 51 years, R/o.
No.54/1, Hanumanthnagar,
B.S.K. 1 Stage, Bangalore.
st
(Reptd. by Sri. S.A. Wajid., Advocate)
DATE OF COMMENCEMENT
OF OFFENCE : 01.03.2006
DATE OF ARREST
OF THE ACCUSED : During the crime stage
accused is released on
bail.
OFFENCE ALLEGED : U/s. 420 of IPC.
DATE OF COMMENCEMENT
OF EVIDENCE : 23.04.2011
DATE OF CLOSING OF
EVIDENCE : 13.03.2015
OPINION OF THE JUDGE : Found not guilty
(Chinnannavar R. S.)
XXIV A.C.M.M., BANGALORE.
2 C.C.No.29599/2007
-: J U D G M E N T :-
The PSI of Hanumanthnagar police station has filed
charge sheet against accused for the offence punishable U/s.
420 of IPC.
2. The case of the prosecution in brief in is as under:
It is alleged that, during 2006 accused dishonestly and
with intention to cheat complainant entered into oral contract
with the complainant to construct compound wall by
vacating trespassers from survey No.19/1 situated at Kalena
Agrahara by receiving Rs.22,00,000/- and failed to construct
compound wall and failed to vacate trespassers and failed to
execute sale deed with respect to Government land, as
agreed, and thereby dishonestly and fraudulently induced the
complainant to deliver Rs.22,00,000/- and committed offence
punishable U/s. 420 of IPC.
3. The first information was filed by the complainant
K.V. Aravamudan S/o. Late K. Vedantha Iyengar on
26/09/2006 at 1.30 p.m. before PSI of Hanumanthnagar
police station with above said allegations. On the basis of
written complaint PSI of Hanumanthanagar police station
registered in crime No.206/2006 for the offence U/s. 420 of
IPC and sent FIR to the court. Later he visited the spot
conducted spot panchanama, recorded statements of
witness, collected documents about cheating and after
completion of investigation filed charge sheet against the
accused by showing him as absconding accused.
3 C.C.No.29599/2007
4. On perusing the charge sheet this court has taken
cognizance for the offence punishable U/s. 420 of IPC and
issued summons to the accused. On service of summons
accused appeared and was released on bail.
5. The copy of the charge sheet and other materials
has been supplied to the accused as required U/s. 207 of
Cr.P.C.
6. After hearing both side the charge for the offence
punishable U/s. 420 of IPC was recorded & read over to the
accused in the language known to them. He denied the
charge and claimed trial.
7. In order to prove the case the prosecution has got
examined PW.1 to 7 and got marked Ex.P.1 to 21.
8. The 313 Cr.P.C. statement has been recorded,
accused has denied incriminating evidence and got marked
Ex.D.1 to 4 through cross of PW.1.
9. I have heard the learned Sr. A.P.P. and learned
defense counsel at length.
10. The following point arises for my consideration:
1. Whether the prosecution proves beyond
reasonable doubt that during 2006 accused
dishonestly and with intention to cheat
complainant entered into oral contract with the
4 C.C.No.29599/2007
complainant to construct compound wall by
vacating trespassers from survey No.19/1 situated
at Kalena Agrahara by receiving Rs.22,00,000/-
and failed to construct compound wall and failed
to vacate trespassers and failed to execute sale
deed with respect to Government land, as agreed,
and thereby dishonestly and fraudulently induced
the complainant to deliver Rs.22,00,000/- and
committed offence punishable U/s. 420 of IPC ?
2. What order ?
11. My answer to the above points is as under;
Point No.1 - In the Negative.
Point No.2 _ As per final order for the following;
REASONS
12. POINT NO.1:
Accused has not disputed the contract with the
complainant. He has not disputed that, he has agreed to
construct compound wall and agreed to evict encroachers
from the land of the complainant. It is not in dispute that
complainant is owner of the RS.No.19/1. It is also not in
dispute that, complainant has entered oral agreement with
the accused. The only dispute is according to complainant,
accused has received Rs.22,00,000/- from him and has not
completed the work of construction of compound wall and
has not evicted the trespassers and thereby cheated him but
according to accused he has completed his part of contract
and the cheque issued by the complainant towards payment
was dishonored and hence complainant himself has
5 C.C.No.29599/2007
committed the offence and he has not cheated the
complainant.
13. The burden is upon the prosecution to prove that,
accused has dishonestly induced the complainant to deliver
Rs.22,00,000/-. In order to prove the case the prosecution
has relied upon evidence of PW.1 to 7 and Ex.P.1 to 21.
PW.1 is the complainant, Ex.P.1 is complaint, PW.2 and 3 are
the friends of the complainant, in whose presence the
transaction was stated to have taken place. PW.4, 6 and 7
are the police officials who stated to have searched the
accused. PW.5 is the investigating officer who conducted
entire investigation and filed charge sheet against the
accused.
14. The prosecution has mainly relied upon evidence
of PW.1 to 3. PW.1 deposed that, he has entered oral
agreement with the accused and he has entrusted work to
the accused and accused has cheated him by not completing
the work entrusted to him. He has produced the letters to
prove their contract. He deposed that, accused has not
completed the work and hence he stopped the payment of
cheque of Rs.10,50,000/-. The learned APP argued that, this
witness was not cross examined by the defence and hence
the evidence of this witness has to be believed. On the
contrary the learned defence counsel argued that even if the
evidence of the PW.1 taken as it is, it does not attract
ingredients of section 420 of IPC and hence through witness
was not cross examined it is not fatal to his defence.
6 C.C.No.29599/2007
15. It is well settled position of law that, accused can
create doubt in the case of prosecution by cross examining
the witness, through documents produced by the prosecution
even without getting examined himself. The position of law is
that the prosecution has to prove its case beyond reasonable
doubt. It cannot rely upon the lacunas of the accused. On
the contrary accused can prove his defence by leading
evidence or through the evidence of the prosecution witness
and said evidence may be in the nature of preponderance of
probabilities. Accused need not prove his defence beyond
reasonable doubt. If he raises reasonable doubt in the case
of the prosecution then the said benefit of doubt shall be
given to the accused. So keeping above said settled position
of law in mind let me consider the evidence on record.
16. PW.1 deposed that, accused has not completed
the contract and hence he is liable for punishment. He
deposed that, he has paid Rs.22,00,000/- to the accused. In
his complaint or in his evidence he no were stated that,
accused has induced him to draw Rs.22,00,000/- . In his
evidence he has not at all stated that, at the inception of the
contract accused has made false statement. He has not at all
deposed that, with intention to cheat him, accused has
entered contract with him. So this witness has simply
deposed that, accused has breached the contract. He
deposed that, accused has not performed the contract and
hence he has committed cheating. Prosecution has relied
upon Ex.P.6 to 16 the correspondence between the
complainant and accused. These documents are material
7 C.C.No.29599/2007
evidence to decide the evidence of cheating. Ex.P.6 is the
letter issued by the complainant to the accused, which
discloses that complainant has made offer to the accused,
which is as under;
" though I am having all documents in my name
everything in tact, I am not in a position to get rid of them
and enjoy my property. Such being the case, I wanted to
entrust the assignment to you, to talk with the concerned
persons and settle the matter amicably and get back my
piece of land.
I hope that you can finish my assignment successfully.
For further steps it is better to talk personally. Kindly take
this assignment on priority. Kindly let me know when you
are coming for discussion."
17. Ex.P.7 is the reply given by the accused to the
complainant. Under this letter accused has accepted the
offer of the complainant. The contents of said letter dated
30/01/2006 is as under:
"The area is very much developing and getting
importance as a commercial area. The occupants are
expecting a good sum of money to vacate and moreover they
are having very good local support. By calculating all these
points, in my opinion it is better to take the local heads into
confidence to get rid of this people by paying some money.
Further if we go legally it may fetch us a good result but it is
a question of time and money. If you are ready to take the
responsibility of finance to give money to the occupants and
8 C.C.No.29599/2007
for other expenses, I will take this assignment to negotiate
with them and assure you to get back your land measuring
approximately 8800 sqft which is worth more than Rs.2.25
crores. In my opinion this is the best way to finalize this
matter without any clash and soon after they vacate it is
better to construct the compound immediately.
If you are agreeing for this, let us talk the further steps
of actions to be taken."
18. Ex.P.8 is the reply given by the complainant to the
letter issued by the accused. Under Ex.P.8 complainant has
asked the accused about his service charges and he asked
the accused about the duration of the work. The contents of
the said letter is as under;
" I received your letter dated 30/01/2006 and with
reference to our personal discussion had on 06/02/2006, I
discussed the matter with my sons and came to a conclusion
that it is better to pay them, a certain sum of money and get
rid of this problem. Such being the case, kindly let me know
how much money is needed to pay them, and to construct
the compound and also how much time it taken. And what
about your service charges ?
Your early reply is expected."
19. Ex.P.9 is the letter issued by the accused to the
complainant wherein accused has fixed the cost of the work
and of his service charges. Ex.P.10 is the reply given by the
complainant to Ex.P.9. Under this letter complainant has
agreed to pay Rs.1,00,000/- as service charges to the
accused and he agreed to entrust the work to the accused.
9 C.C.No.29599/2007
The contents of this letter are very much necessary which is
as under;
"Kindly negotiate it once again and bring it down as far
as possible which will help me lot.
Secondly the construction of the compound should be
very clean and there should not be any loose construction.
Thirdly, we are ready to pay Rs.1 lakhs as your service
charges.
I am entrusting the responsibility to you to pay the
money to the concerned persons. And I know that in this
type of work it is not possible to give bifurcations of expenses.
I am assuring you that I will not interfere in you way of work
to solve this problem. I know that you are taking a very high
risk in dealing with such type of people. I feel that you have
to be very careful in handling Men and Money. If anything
happens wrong, we both of U/Sec. have to face unnecessary
complications. I am full confidence on you that, you will not
slip in your responsibility. With full confidence in your
assurance and responsibility, I am venturing into this deal."
20. Ex.P.12 is the letter given by the complainant to
the accused under which complainant prays time for
arranging money. Ex.P.13 is the letter issued by the accused
to the complainant under which he requested the
complainant to arrange money and keep the money ready for
completing work.
21. All these documents/correspondence if perused
and appreciated it is crystal clear that, there was oral
agreement between complainant and accused and there was
10 C.C.No.29599/2007
oral contract. All these documents discloses that,
complainant himself has approached the accused for his
work and he agreed the terms and conditions put forth by the
accused. Complainant in his complaint-Ex.P.1 has
specifically mentioned that the transactions between him and
accused have taken place in the house of accused. So the
complainant has approached the accused and accused has
accepted the offer made by the complainant. It is not the
case of the complainant that, accused has made false
representation and even it is not its case that, at the
beginning itself accused has made false assurance. The offer
of the complainant under Ex.P.6 is dated 15/01/2006 and
last correspondence is dated 04/04/2006. So during these
four months time there was contract between complainant
and accused and there were several communications between
them.
22. In the evidence complainant has deposed that,
accused has not constructed the compound wall as agreed
and hence he has cheated him but in Ex.P.1 i.e. in complaint
on page No.2 he has specifically mentioned that, accused
has constructed compound only one side of the open space.
So it cannot be said that, accused has cheated the
complainant by not obeying the promise.
23. In the complaint it is alleged that, accused has
not executed the sale deed with respect to open space
measuring 2920 sqft of Government law. But the evidence on
record does not discloses as to why the accused has to
execute the said sale deed with respect to Government land.
11 C.C.No.29599/2007
24. Ex.P.15 is the letter issued by the complainant to
the bank under which he has stopped the payment of cheque
of Rs.10,50,000/-, which he has issued in favour of the
accused. Under Ex.P.14 accused has issued the receipt with
respect to Rs.10,50,000/-, the amount paid to him through
cheque payment was stopped. So looking to the materials on
record it appears that, the difference of opinion arose
between the complainant and accused with respect to oral
contract and breach of said contract leads to filing of cheque
bounce case by the accused and the present case by the
complainant.
25. If the evidence of complainant and documents
produced by him is considered as it is, the said evidence is
not at all sufficient to attract the ingredients of offence of
cheating. The materials on record disclose that, there may
be a breach of contract, but at any cost it cannot be said as
cheating. So even though PW.1 was not cross examined by
the accused the evidence of complainant does not discloses
any ingredients of section 420 of IPC.
26. The PW.2 and 3 the friends of the complainant
deposed about the payment by complainant to the accused.
But accused has not disputed the payment but the dispute is
whether accused has cheated the complainant or not. So
even if the evidence of both these witnesses is accepted as it
is. It is also not sufficient to attract the evidence of cheating.
The evidence of these witnesses is helpful to the prosecution
to prove the transaction, which is not disputed by the
12 C.C.No.29599/2007
accused. So the evidence of these witnesses is not sufficient
to attract ingredients of offence of cheating.
27. Investigating officer i.e. PW.5 deposed about the
investigation conducted by him, but his evidence is not
sufficient to convict the accused in the absence of evidence of
complainant. The evidence of police officials and
documentary evidence on record discloses that, there was
difference of opinion between complainant and accused with
respect to their oral contract and Investigating Officer
without considering the same mechanically filed charge sheet
against the accused. So I decline to accept the evidence of
the police officials.
28. Advocate for accused relied upon the several
supreme court rulings and argued that, the evidence on
record is not sufficient to attract the offence of cheating. The
ruling relied by him reported in 2000(2) Crimes 72(SC) in
the case of K.T. Thomas and D.P. Hohapatra JJ. Hridaya
Ranjan PD. Verma & Ors. Vs. State of Bihar and Anr. is
applicable to the case on hand. In the said ruling it is held
is as under , (i) Indian Penal Code, 1860 - Section 415
cheating - Definition of Mere breach of contract cannot
give raise to criminal prosecution for cheating - It is
necessary to show that person making promise had
fraudulent or dishonest intention at the time of making
promise. So in this case there is no evidence on record that,
while making the promise accused had fraudulent intention.
There is no material on record that, accused has induced
13 C.C.No.29599/2007
fraudulently or dishonestly the complainant to deliver the
amount.
29. The ruling relied by accused reported in AIR 2009
Supreme Court 3191 between Dalip Kaur & Ors. Vs. Jagna
Singh & Anr. is also applicable to this case wherein it is
held is as under, Penal Code (45 of 1860). Ss. 406, 420 -
Criminal breach of trust or cheating - Fraudulent or
dishonest intention at time of making promise or
representation - Is necessary to constitute offence - Pure
and simple breach of contract of sale does not constitute
offence of criminal breach of trust or cheating. In the
said ruling it is specifically held that, pure and specific
breach of contract of sale does not considered offence of
criminal breach of trust or cheating. In this case there is
pure breach of contract and said breach of contract cannot
be said as offence of cheating.
30. The ruling relied by the accused passed by
Hon'ble Supreme Court in Crl.Appeal No.2341 of 2011
between Vesa Holdings P.Ltd & Anr. Vs. State of Kerala &
Ors dated 03/17/2015 is aptly applicable to the facts of this
case. In the said ruling the Hon'ble Supreme Court at para
No.8 held as under ;
From the decisions cited by the appellant, the
settled proposition of law is 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
14 C.C.No.29599/2007
inception. If the intention to cheat has developed later
on, the same cannot amount to cheating. In other words
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 Indian
Penal Code can be said to have been made out.
31. In this case there is no material on record that, at
the inception of the contract accused had fraudulent or
dishonest intention to cheat the complainant. Merely
because accused has not completed or obeyed his promise it
cannot be said that, he has cheated the complainant. So the
materials on record is not sufficient to attract the offence of
cheating.
32. The advocate for the accused has argued and
relied upon illustration (g) of section 415 of IPC, which is as
under;
(g) A intentionally deceives Z into a belief that A means
to deliver to Z a certain quantity of indigo plat which he does
not intend to deliver, and thereby dishonestly induces Z to
advance money upon the faith of such delivery. A cheats;
but if A, at the time of obtaining the money, intends to
deliver the indigo plant, and afterwards breaks his
15 C.C.No.29599/2007
contract and does not deliver it, he does not cheat, but is
liable only to a civil action for breach of contract.
33. The second part of the said illustration is
applicable to this case. So even if accused has not completed
the transactions that does not amount to cheating but it
amounts to breach of contract and the remedy open to the
complainant is to file civil suit. But materials on record does
not discloses that, complainant has approached civil court
for breach of contract. It appears that, instead of
approaching civil court complainant has filed this case and
dragged the accused to the court all along.
34. The evidence of the complainant is contrary to
the documents produced by him. As per complaint - Ex.P.1
it is alleged that, accused has demanded Rs.32,00,000/- to
sell the land of Government but the documents produced by
him i.e. letters of correspondence does not whisper anything
about the said assurance by the accused. The allegations
that he agreed to purchase the land of the Government from
the accused itself is illegal and the said case of the
complainant cannot be accepted. So looking to the evidence
of prosecution witness and documents on record I hold that,
the case on record is simply case of breach of contract and at
any cost it does not attract the ingredients of section 420 of
IPC.
35. It is well settled position of law that, prosecution
has to prove its case beyond reasonable doubt but the
prosecution has not all proved its case beyond reasonable
16 C.C.No.29599/2007
doubt. It is also well settled position of law that if there
exists any reasonable doubt in the case of the prosecution
then the benefit of the doubt shall be always given to the
accused. Hence I hold that, prosecution has not proved its
case beyond reasonable doubt and I extend benefit of the
doubt to the accused and answer point No.1 in Negative.
36. POINT NO.2 :
In view of my answer to point No.1 in negative accused
is entitle for acquittal from the offence alleged. So I proceed
to pass the following:
ORDER
Acting U/s. 248(1) of Cr.P.C. the accused is acquitted from the offence punishable U/s. 420 of IPC.
The bail bonds of the accused and his surety stands cancelled after appeal period is over.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in open court on this the ...... day of............, 2015) (Chinnannavar R. S.) XXIV A.C.M.M., BANGALORE.
ANNEXURE Witnesses examined for the Prosecution:
PW-1 : K.V. Aravamudan
PW-2 : Basavaraj
PW-3 : Krishnappa
PW-4 : Prakash
17 C.C.No.29599/2007
PW-5 : U. Ramachandra Rao
PW-6 : Guru Nanjayya
PW-7 : Lava M.R.
Documents marked for the Prosecution:
Ex.P-1 : Statement of Complainant Ex.P-1(a) : Signature of PW.1 Ex.P-2 : Spot Panchanama Ex.P-2(a) : Signature of the PW.1 Ex.P-3 & 4 : Copy of Survey Sketch Ex.P- 5 : Copy of Form 16 Ex.P-6 to 13 : Letters Ex.P-14 : Receipt Ex.P-15 : Letter written by Complainant to Bank Ex.P-16 : Letter by Bank to complainant Ex.P-17 : Statement of Account Ex.P-18 : FIR Ex.P-18(a) : Signature of Sub Inspector of Police Ex.P-19 : Copy of Agreement Letter Ex.P-20 : Copy of RTC Extract Ex.P-21 : Statement of PW.6 Witnesses examined for the accused:
-NIL-
Documents marked for the accused:
Ex.D-1 : Portion of statement of PW.3
Ex.D-2 : Letter dated 22/05/2006
Ex.D-3 : Letter dated 23/03/2006
Ex.D-4 : Receipts
(Chinnannavar R. S.)
XXIV A.C.M.M., BANGALORE.