Patna High Court
Bageshwar Misser vs Mt. Khandari Kuer And The State on 12 February, 1969
Equivalent citations: AIR1970PAT20, AIR 1970 PATNA 20, 1969 PATLJR 360
ORDER B.D. Singh, J.
1. This criminal revision has been preferred by the sole petitioner who was convicted for an offence under Section 420 of the Indian Penal Code (hereinafter referred to as 'the Code') and was sentenced to suffer six months' rigorous imprisonment and a fine of Rs. 200/- was also imposed upon him for the said offence. In default of payment of the fine, he was ordered to undergo further rigorous imprisonment for two months, by the trial court. On appeal his conviction and sentence were maintained. It may be noted that the trial court had convicted also his two brothers, namely, Nag Narain Misser and Saligram Misser for the offence under the aforesaid section, and the same sentences were imposed upon them. The appellate court, however, gave benefit of doubt to Nag Narain Misser and Saligram Misser and acquitted them.
2. Facts, in brief, which have given rise to this application are : The prosecution was initiated on a complaint dated 4-1-1965 (Ext. 1) lodged by Mosammat Khandari Kuer (P. W. 4) widow of Dhorai Pandey. According to the complainant, on 14-12-1964 the petitioner along with his two brothers, who have been acquitted by the Sessions Judge, came from their village Bankata to the complainant who was living then at village Dhamnagar which is 16 miles from the village of the petitioner, and requested her to execute a zerpeshgi deed in respect of her 19 kathas 16 dhurs of land after taking a loan of Rs. 1,000/- from the accused. To this she agreed. On 15-12-1964 she was taken to Gopalganj Sub-Registry Office, and was made to execute a document (Ext. 2) by obtaining ner thumb impression, which she took to be a zerpeshgi deed, as according to her, the contents thereof were not read out or explained to her. The accused also promised to pay the consideration at her home after the registration. After the deed was registered the registration slip was also taken from her after obtaining her thumb impression thereon, but even later no money was paid to her. Thereafter, on enquiry she learnt that fraud was committed by the accused as in fact it was not a zerpeshgi deed but it was an out and out sale, and for that also no consideration was paid to her. Then she filed the said complaint on 4-1-1965.
3. The defence, in short, was that she had knowingly sold her lands after receiving Rs. 920/- by way of adjustment of prior loans before the execution and the balance of Rs. 80/- in cash, was paid to her after the registration. The trial court after considering the evidence on record, however, convicted the petitioner along with his two brothers as mentioned earlier. On appeal the conviction and sentence passed upon the petitioner were maintained whereas his two brothers were acquitted. Hence this revision.
4. Learned counsel appearing on behalf of the petitioner has raised the following points for consideration by this Court :
(i) The prosecution story about misrepresentation to the complainant regarding the zerpeshgi nature of the deed having been disbelieved by the appellate court, the petitioner cannot be convicted under Section 420 of the Code.
(ii) The appellate court has erred in convicting the. petitioner solely on the ground that no consideration was paid to her contrary to the promise made by the petitioner. For the payment of consideration the court ought to have examined the terms mentioned in the document (Ext. 2) itself, specially when there is no finding that the document was not read over and explained to her. Even if consideration had not passed the court below ought not to have gone into the matter as it was a civil right.
5. I will take up for consideration points Nos. (i) & (ii) together. Learned counsel appearing on behalf of the petitioner has contended that the prosecution examined 4 witnesses, namely, P. Ws. 1 to 4, to prove the prosecution story. The appellate court discarded the evidence of P. Ws. 1 to 3 and based the conviction solely on the testimony of P. W. 4, the complainant; even P. W. 4 has not been relied regarding her story that the accused had approached her for zerpeshgi and not for sale. The learned Judge held that her story regarding the zerpeshgi was false, and he gave the accused benefit of doubt for that part of the prosecution story. The learned Judge, however, convicted the petitioner on the ground that P. W. 4 did not receive any consideration for the sale deed (Ext. 2) and she was made to part with the registration slip on the pretext of paying the consideration later at home.
Learned counsel submitted that the appellate court erred in holding that the recital of the deed (Ext. 2) clearly showed that such an intention was present from the very beginning. He has drawn my attention to Ext. 2, wherein it is stated that Rs. 920/- was paid to her by adjust-ment of a prior loan, and the balance of Rs. 80/- was paid to her at the time of execution. Therefore, he urged that there was neither intention of cheating from the very beginning, nor there was existence of such intention at any subsequent stage. In fact, the balance of Rs, 80/- was paid to P. W. 4 on the same date after the registration of the document and before she parted with its receipt. The deed was scribed by one Jagannath. who has written in the deed that he read it out and explained it to her. There is no finding by the court below that Jagannath, the scribe, did not explain or read over the deed to her. In that view of the matter it cannot be said that Rs. 920/- was not paid to her by way of adjustment. She put the thumb impression on the deed after it was fully explained to her. If she would not have received Rs. 920/-she would not have put her thumb impression on it. The balance of Rs. 80/- was also paid to her before she parted with the registration receipt (receipt for the exchange of the deed). At one stage I wanted to see this receipt in order to find out what was written on her behalf or by her on this receipt. Hence, I called for the receipt from the office of the Sub-registry Office, Gopalganj, but it was reported that the same had been destroyed. The case of the prosecution is as mentioned earlier that she put her thumb impression on the receipt and parted with it on the assurance that the consideration money will be paid to her at her home but that was not paid. In examination under Section 342 of the Code of Criminal Procedure, the petitioner has stated that he paid the consideration money, and he further stated that he would file written-statement. In the written-statement also it was stated that Rs. 920/- was paid to her, before the execution of the sale deed and the balance of Rs. 80 was paid to her after -the registration and she put her thumb impresison on the receipt after the payment of the balance amount. Learned counsel further contended that once she parted with the registration receipt, the presumption would be that the entire amount was paid to her. The complainant (P .W. 4) is1 the only witness on the point that no consideration was paid to her and the court below has disbelieved her so far as the story regarding the zerpeshgi is concerned. According to him, the learned Judge ought not to have convicted the petitioner on her evidence when she was disbelieved on material particulars. In this connection reference may be made to a decision of this court in Awadh Singh v. The State, AIR 1954 Pat 483 where Choudhary, J. (as he then was) at page 486 observed that, of course, it is true that where the prosecution story is disbelieved as to its essential details, it is still open to the court to rely on a part of the story for the purpose of convicting the accused persons, but at the same time it is elementary that where the prosecution has a definite or positive case it must prove the whole of the case. His Lordship further observed that, though it cannot be laid down, as a law of general application, that, in no case, a Judge can accept a part of the prosecution story when he has disbelieved its other part, as a rule of prudence it will not be safe to rely on the evidence of witnesses on one part of the prosecution story when it has been disbelieved as to its material part.
6. Learned counsel further submitted that even assuming that no consideration money was paid to her, the definite case of the prosecution was that the petitioner misrepresented to the complainant to execute the zerpeshgi deed although in fact it was a sale deed. The learned Judge disbelieved this part of the prosecution story. Therefore, learned counsel has urged that when the deed was executed, petitioner had no intention to cheat her. It is well established that for a conviction for an offence under Section 420 of the Code, it is essential to establish the criminal intention of the accused, at the time the offence is said to have been committed. In that view of the matter, the conviction of the petitioner, according to him, cannot be sustained.
7. On the other hand, Mr. Ram Nan-dan Sahaya Sinha, appearing on behalf of the complainant-opposite party, submitted that the prosecution made out two distinct grounds of cheating, namely,
(i) the complainant was given to understand by the petitioner that she was executing a zerpeshgi deed whereas, in fact, it was a sale deed;
(ii) the recital in the sale deed regarding the payment of Rs. 920/- to the complainant before the execution by adjustment of prior loans and the balance of Rs. 80/- at the time of registration of the deed was false and fraudulent. The petitioner got the thumb impression of the complainant affixed on the registration receipt on the false promise that the consideration money would be paid to her later on at her home, but did not pay at all, contrary to his promise, which amounted to a clear case of cheating.
Learned counsel further submitted that It is true that on the first ground, she has been disbelieved by the learned Judge, but she has been relied so far ground No. (ii) is concerned and the conviction of the petitioner is based upon ground No. (ii). The learned Judge observed that the re-cital in the deed that Rs. 920/- had been paid to her by way of adjustments to wards prior loans at the time of execution of the deed, and the balance of Rs. 80/-at the time of registration of the deed clearly indicated that the petitioner had criminal intention to cheat her from the very beginning. He further held that, admittedly no amount had been paid to her at the time of the execution of the deed.
8. In order to repell this argument. Mr. Kailash Ray, appearing on behalf of the petitioner, contended that the finding of the learned Judge that "admittedly no amount had been paid to her at the time of the execution of this deed" is an error of record; and drew my attention to the examination of the petitioner under Section 342 of the Code of Criminal Procedure, which I have already mentioned in the earlier part of my judgment; and also referred to the written statement which was filed on behalf of the petitioner, the relevant portion whereof reads as follows-
"That the real story is that the complainant received Rs. 920/- before the execution of the sale deed and she willingly and voluntarily executed the sale deed and incorporated Rs. 920/- in the sale deed which she had taken and after registration, she executed the receipt duly thumb impressed by her on receipt of Rs. 80/- the balance of the consideration money of the deed. The complainant was later manoeuvred by Manu Pandey and filed the complaint with false allegations."
Hence, he urged that it was not an admitted case of the petitioner. On the contrary, the case of the petitioner was and is that the entire consideration money was paid to her. Besides, before she executed the deed, the scribe Jagannath read it out to her and explained it to her, as it is mentioned in the deed itself, and there is no finding of the court below that the document was not read over and explained to her. If the deed clearly mentioned that Rs. 920/- was paid to her by way of adjustment, it cannot be said that the petitioner had criminal intention from the very beginning. In that view of the mater also, his conviction cannot be upheld, In order to substantiate his point, he has relied on a decision of this Court in Sheosagar Pandey v. Emperor (1936) 37 Cri LJ 38 (Pat), where Fazl Ali, J. (as he then was) observed that mere breach of a contract cannot give rise to a criminal prosecution. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time of the alleged inducement which may be judged by his subsequent act, but of which the subsequent act is not the sole criterion. Where there is no clear and conclusive evidence of the criminal intention of the accused at the time the offence is said to have been committed, and where the party said to be aggrieved has an alternative remedy in the civil court the matter should not be allowed to be fought in the Criminal Courts.
9. In view of the above discussions, I am inclined to agree with the contentions of learned Counsel for the petitioner. On the facts and in the circumstances of the instant case, it cannot be said with certainty that the petitioner had criminal intention to cheat her at the time the offence is said to have been committed. Besides, in the present case also, she has alternative remedy in civil court. The judgment of the court below convicting the petitioner cannot be upheld.
10. In the result, I allow this application and set aside the conviction and sen-tence imposed upon the petitioner.