Tripura High Court
Sri Samir Roy vs The State Of Tripura on 31 January, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
CRL. REV. P. No.75 of 2014
Sri Samir Roy,
son of late Santosh Kumar Roy,
resident of 36, Akhaura Road, R.M.S. Chowmuhani,
P.S. West Agartala, P.O. & Sub-Division-Agartala,
District - West Tripura
...... Petitioner
-Versus-
1. The State of Tripura
2. Smt. Gouri Sarkar,
wife of Sri Abani Mohan Sarkar,
resident of Ramnagar Road No.8,
P.O. Ramnagar, P.S. West Agartala,
Sub-Division-Agartala, District - West Tripura
...... Respondents
BEFORE
THE HON'BLE MR.JUSTICE S. TALAPATRA
For the petitioner : Mr. S. Lodh, Advocate
For the respondent No.1 : Mr. A. Ghosh, P.P.
For the respondent No.2 : Mr. B. N. Majumder, Advocate
Date of hearing : 18.11.2016
Date of delivery of Judgment: 31.01.2017
and order
Whether it is fit for reporting: YES
JUDGMENT & ORDER
By means of this revision petition the judgment and
order dated 28.05.2014 delivered in Criminal Appeal
No.25(2)/2013 by the Sessions Judge, West Tripura, Agartala,
has been challenged by the convict. By the said judgment dated
28.05.2014, the judgment dated 26.04.2013 delivered in CR
1406 convicting the petitioner under Section 420 of the IPC has
been affirmed. Thus, the finding of conviction and the order
[2]
sentencing the petitioner to suffer RI for 2 years and to pay a
fine of Rs. 50,000/-, in default to suffer RI for further six months
have been sustained on re-appreciation.
02. The complainant Smt. Gouri Sarkar took a room on
rent from the petitioner in the year 2000 situated at Akhaura
Road, Agartala and started her business in electronic goods.
When the said room fell in the share of the brother of the
petitioner in the exercise to partition the joint property,
according to the complainant the petitioner approached her in
the month of June 2002 for selling the room adjoining the earlier
rented room. The proposal as communicated was accepted by
the complainant and the consideration was settled as
Rs.2,80,000/-. An agreement for sale was executed on
19.06.2002 on paying the earnest money of Rs.60,000/- in
cash. It was further agreed that a sum of Rs.80,000/- paid
earlier by the complainant to the petitioner in connection with
the rent of the room in the year 2000 shall also be the part of
the earnest money for the proposed purchase of another shop.
Thus, an amount of Rs.1,40,000/- was paid and it was further
agreed that the balance amount of Rs.1,40,000/- would be paid
within a year from the date of execution of the agreement to
sale. Accordingly, the complainant prepared herself for payment
of the balance amount within the stipulated time but according
to the complainant the petitioner deferred accepting the balance
of the consideration amount on different pleas. However, the
petitioner received Rs.10,000/- and Rs.5,000/- from the
complainant on 25.08.2003 and 20.08.2004 respectively within
CRL. REV. P. No.75 of 2014 Page 2 of 19
[3]
the terms of the agreement dated 19.06.2000. Ultimately, on
02.06.2005, the petitioner executed the sale deed in favour of
the complainant. In the sale deed, the sale amount was however
was mentioned as Rs.1,15,000/- as per the Government rate.
On the day of execution of the sale deed, the petitioner assured
that he would shortly vacate the premises but on 28.06.2005,
the complainant received a notice from the court of the Civil
Judge, Junior Division, Agartala in connection with Misc. Case
No.55 of 2005 arising out of TS 77 of 2005. From the notice, the
complainant could gather that the petitioner entered into an
unregistered tenancy agreement with Basana Roy and Pranab
Kanti Sarkar on 15.12.2004 for a period of 5 years w.e.f.
01.01.2005 receiving an advance of Rs.50,000/-. The
complainant has stated that the petitioner has cheated her for
the second time when on 02.06.2005 he executed the sale deed
in her favour receiving the balance payment of Rs.1,40,000/-. In
that background, the complainant filed the complaint for taking
cognizance under Section 420 of the IPC.
03. On taking cognizance, the Court of the Chief Judicial
Magistrate, West Tripura, Agartala proceeded to record evidence
before framing of the charge and after framing of the charge. As
stated, the charge was framed under Section 420 of the IPC
against the petitioner, to which he pleaded innocence and
claimed to face the trial. From the cross-examination it
appeared, as recorded by the appellate court, that in the money
receipt relating to the payment, the signature of the petitioner
CRL. REV. P. No.75 of 2014 Page 3 of 19
[4]
was taken on a blank paper and later on it was given the shape
of the money receipt.
04. To substantiate the charge, the complainant
adduced as many as three witnesses including herself and
adduced five documentary evidence including the Exbt.4 series
and Exbt.1 and Exbt.A series [the agreement to sale]. Having
recorded the evidence of the prosecution, the petitioner was
examined under Section 313 of the Cr.P.C. where he repeated
his plea of innocence and contended that he had been falsely
implicated. By the judgment dated 26.04.2013 the petitioner is
held guilty of committing offence punishable under Section 420
of the IPC and accordingly he has been sentenced. For returning
the finding of conviction, the trial court has observed in the
judgment dated 26.04.2013 as under:
"To prove the charge under Section 420 of the IPC
the prosecution/complainant should prove the
following ingredients- "(i) there should be
fraudulent or dishonest inducement of a person by
deceiving him, (ii)(a) the person so deceived
should be induced to deliver any property to any
person, or to consent that any person shall retain
any property or; (b) the person deceived should be
intentionally induced to do or omit to do anything
which he would not do or omit if he were not so
deceived (ii)(b) the act of omission should be one
which cause or is likely to cause damage or harm to
the person induced in body, mind, reputation or
property".
05. Here, in this case in the year 2002 the accused
approached the complainant to sell his 171 sq. feet of land
including 'dokan viti' within his share and the consideration
money was fixed at Rs.2,80,000/- on negotiation and after that
agreement for sale was made on 19.06.2005 and it was agreed
CRL. REV. P. No.75 of 2014 Page 4 of 19
[5]
that the deed of sale would be executed within a short span of
time, even though on different occasions, the accused received
money from the complainant but denied to execute the said
deed and ultimately on 02.06.2005 he executed a registered
sale deed in favour of the complainant. When the complainant
came to know that the accused already leased out the said
premises demised in the sale deed to the third party who filed a
civil suit against the present complainant and others, she filed
the complaint in the court.
06. To substantiate the charge, the complainant and her
two witnesses were adduced in this case and they were duly
cross-examined by the accused person. From the trend of cross-
examination, it appears that the accused could not dent her
evidence to make it unreliable for the fact that he did not
execute any sale deed in favour of the complainant within time
and the fact of receiving the money on different occasions from
the complainant and further, the fact of leasing out of the said
disputed land in question to the third party who sought relief
before the civil court against the complainant. Even, injunction
restraining from interfering with the possession was granted.
Thus, it evinces that the accused knowing fully the fact that he
had leased out the land and building in question to some other
persons executed the sale deed in favour of the complainant and
received the remainder of consideration money. The accused
deceived and cheated the complainant and in the premises as
narrated above, the accused person committed the offence
punishable under Section 420 of the IPC.
CRL. REV. P. No.75 of 2014 Page 5 of 19
[6]
07. The said finding has been affirmed by the impugned
judgment dated 28.05.2014. Hence, the petitioner by way of
this revision petition has challenged the said judgment and order
dated 28.05.2014.
08. Mr. S. Lodh, learned counsel appearing for the
petitioner has submitted that the provisions of Section 420 of
the IPC have been misconstrued both by the trial court and the
appellate court. According to him, there is no evidence of
deception. Even proving deception is not enough. The person
who has allegedly been deceived should be induced to do or
omit to do anything which he would not do or omit, if he were
not so deceived. The act of omission should be one which causes
or which is likely to cause damage or harm to the person
induced in body, mind, reputation or property. Mr. Lodh, learned
counsel has referred to the testimony of the complainant where
she has stated that in terms of the agreement dated 19.06.2002
on 02.06.2005, the petitioner executed the sale deed in favour
of the complainant. Only after registration of the sale deed, the
complainant came to know that Basana Roy and Pranab Kanti
Sarkar in terms of the tenancy agreement dated 15.12.2004
was inducted in the said property as demised in the sale deed.
The complainant has stated, as referred to by Mr. Lodh, learned
counsel, that though the sale was executed on 02.06.2005, she
could not take the possession as the possession was already
with those tenants. Mr. Lodh, learned counsel has pointed out
that the complainant has stated in the trial as under:
CRL. REV. P. No.75 of 2014 Page 6 of 19
[7]
"Accused has executed sale deed suppressing the
actual fact that he has already entered into a
tenancy agreement with others. Accused has
received full consideration of the purchased land
making false promise considering the truth and
thereby cheated me. If I could realize the intention
of the accused I would not entered into an
agreement with the accused to purchase the land
from the accused."
09. The complainant has stated in her evidence before
the charge that after the registration, the accused had assured
that he would hand over the possession after a week, as he had
some goods inside the shop, but the accused did not handover
the possession of the shop as assured to the complainant. In the
cross-examination after the charge, the complainant has stated
as under:
"My son earlier hired a room from Samir Roy as
monthly rent basis and later on my son purchased
said Dokan Viti from Samir Roy in lieu of
consideration money. I could not say the actual
quantum of land within the said Dokan viti before
purchase of the same by my son from Samir Roy.
The adjacent shop which I have purchased there is
another shop under ownership of said Samir Roy.
The shopkeeper of that adjacent shop has filed a
civil suit against me, as alleged by the accused of
this case. I have contested the suit and filed the
written statement. Before the Civil Court I made
deposition on 27.4.06 and stated that prior to hire
that shop on monthly rent basis by my son. There
was one Roy varieties adjacent of the said dokan
Viti."
10. When, PW-1, the complainant was confronted with a
question that since she was running a business for four years in
that adjacent shop and she purchased the disputed plot knowing
fully well about its status, PW-1 denied the said suggestion. PW-
1 has stated that it was agreed that from the date of execution
of the agreement i.e. 19.06.2002 the balance consideration
money shall be paid within one year. It appears that there is no
CRL. REV. P. No.75 of 2014 Page 7 of 19
[8]
statement that within one year the complainant intended to pay
the balance consideration money. However, she has stated that
on different occasions she paid various quantities of money till
01.05.2005 i.e. much after the date for payment of the balance
consideration money. Finally, on 27.05.2006 she paid a sum of
Rs.50,000/- by cheque and another sum of Rs.50,000/- by
cheque on the day of execution of the sale deed i.e. 02.06.2005.
After registration, the petitioner had allegedly stated that he
would hand over the possession within a short while as he had
kept some goods inside the shop but the petitioner did not
handover the possession. Meanwhile, they received the notice
from the Civil Court in a suit for injunction. The complainant has
submitted a photocopy of the rental agreement entered into
between the petitioner and one Smt. Basana Roy and another on
15.12.2004. Thus, it has been claimed that the accused has
deceived the complainant. In the cross-examination after the
charge the complainant has admitted that adjacent to the shop
which she purchased, there is another shop under the ownership
of the petitioner and her son earlier hired that from the
petitioner on monthly rent and later on her son purchased the
said shop from the petitioner. The complainant has categorically
stated in the said cross-examination: "My son started his
business on the disputed dokan viti in the year 2000. At the time
of opening ceremony I went to the shop of my son and I have
found another adjacent shop namely Roy Varieties. Said shop
was belonging to Samir Roy." PW-3 Abani Mohan Sarkar
husband of the complainant corroborated the statement of PW-
CRL. REV. P. No.75 of 2014 Page 8 of 19
[9]
1. He has also stated in the trial that adjacent to the shop of his
son there was another chala ghar under the ownership of Samir
Roy. PW-3 has stated that the said suit has been dismissed. PW-
2 however, is a formal witness who attested the sale deed dated
02.06.2005.
11. After examining the petitioner under Section 313 of
the Cr.P.C. and on appreciation of the evidence as recorded by
the trial court, by the judgment dated 26.04.2013 it has been
observed as under:
"To prove the charge under Section 420 of the IPC
the prosecution/complainant should prove the
following ingredients-
"(i) there should be fraudulent or dishonest
inducement of a person by deceiving him, (ii)
(a) the person so deceived should be induced
to deliver any property to any person, or to
consent that any person shall retain any
property or; (b) the person deceived should be
intentionally induced to do or omit to do
anything which he would not do or omit if he
were not so deceived (ii) (b) the act of
omission should be one which cause or is likely
to cause damage or harm to the person
induced in body, mind reputation or property".
Herein this case the case of the complainant as that
in the year, 2002 the accused approached the
complainant to sell his 171 sp. Feet of land
including dokan viti from his parental share and
accordingly consideration money was fixed at
Rs.,80,000/- and after that agreement for sale was
made on 19/06/2005 and it was agreed to execute
the deed within a short span of time but on
different occasion the accused received money from
the complainant and denied to execute deed and
ultimately on 02/06/2005 he executed a registered
sale deed in favour of the complainant when the
complainant came to know that the accused already
leased out the said suit premises to a 3rd person
who filed a Civil Suit against the present
complainant and others. To substantiate the charge
the complainant and her two witnesses were
adduced in this case and they were duly cross-
examined by the accused person. From the trend of
cross-examination it appears that the accused
could not discard their evidence to disbelieve the
CRL. REV. P. No.75 of 2014 Page 9 of 19
[10]
evidence of the complainant to the fact that he did
not execute any sale deed in favour of the
complainant and also the fact of receipt of
consideration money by him on different occasion
from the complainant and also the fact of leasing
out of the said disputed land in question to a 3rd
person who sought relief before the Civil Court
against the present complainant of this case and
injunction was granted. Thus from the discussion
made above and also on perusal of the exhibited
documents it appears to me that the accused
knowing fully the fact that he has leased out the
disputed land in question to some other person
executed a sale deed in favour of the complainant
of this case and received consideration money and
thus dishonestly deceived and cheated the
complainant and thereby the accused person has
committed the offence punishable under Section
420 of the IPC. Thus the aforesaid point is
answered in favour of the complainant."
12. The petitioner has been sentenced to suffer rigorous
imprisonment for 2 (two) years with fine of Rs.15,000/- in
default to undergo further RI for a period of 6 months for
committing offence punishable under Section 420 of the IPC.
13. Being aggrieved, the petitioner filed an appeal under
Section 374(3) of the Cr.P.C. being Criminal Appeal No. 25(2) of
2013 which has been dismissed by the impugned judgment
dated 28.05.2014 observing that:
"None having appeared for the appellant, the
responsibility of the appellate court is doubled so
far as the scrutiny of the impugned judgment is
concerned. Accordingly, I have closely gone
through the cross-examination of the complainant
and her two witnesses. In the impugned judgment,
at para 4, it is discussed in details as to how the
charge under Section 420 I.P.C. is proved against
the appellant."
14. Mr. B. N. Majumder, learned counsel appearing for
the complainant has submitted that the prosecution (the
complainant) has established the charge beyond reasonable
CRL. REV. P. No.75 of 2014 Page 10 of 19
[11]
doubt that at the time of execution of the sale deed, the
petitioner by suppressing that he had inducted the tenants for a
tenure of 5 years caused inducement with intent to cheat the
complainant and thereafter failed to deliver the vacant
possession and thus the trial court has correctly held that the
petitioner has committed the offence punishable under Section
420 of the IPC.
15. Having scrutinized the records and on appreciation
of the submission advanced by the learned counsel, the
questions those emerged for response from this court are: (1)
whether the appellate court can dismiss an appeal without
representation from the appellant on merit? (2) whether there
was any inducement at the time when agreement to sale of the
referred property was entered between the petitioner and the
complainant and (3) whether the so called suppression could be
beyond the knowledge of the complainant or whether there is
any inducement at all?
16. The apex court in Mohd. Sukur Ali v. State of
Assam reported in (2011) 4 SCC 729 has held that in the
absence of a counsel, for whatever reason, the case should not
be decided forthwith against the accused but in such a situation,
the court should appoint a counsel who is practising on the
criminal side as amicus curiae and decide the case after fixing
another date and hearing him on the foundation of the following
analogy:
"We are of the opinion that even assuming that the
counsel for the accused does not appear because of
CRL. REV. P. No.75 of 2014 Page 11 of 19
[12]
the counsel's negligence or deliberately, even then
the Court should not decide a criminal case against
the accused in the absence of his counsel since an
accused in a criminal case should not suffer for the
fault of his counsel and in such a situation the Court
should appoint another counsel as amicus curiae to
defend the accused. This is because liberty of a
person is the most important feature of our
Constitution. Article 21 which guarantees
protection of life and personal liberty is the most
important fundamental right of the fundamental
rights guaranteed by the Constitution. Article 21
can be said to be the 'heart and soul' of the
fundamental rights.
In our opinion, a criminal case should not be
decided against the accused in the absence of a
counsel. We are fortified in the view by a decision
of the US Supreme Court in Powell Vs. Alabama,
287 US 45 (1932), in which it was observed:
"What, then, does a hearing include? Historically
and in practice, in our own country at least, it has
always included the right to the aid of counsel
when desired and provided by the party asserting
the right. The right to be heard would be, in many
cases, of little avail if it did not comprehend the
right to be heard by counsel. Even the intelligent
and educated layman has small and sometimes no
skill in the science of law. If charged with crime, he
is incapable, generally, of determining for himself
whether the indictment is good or bad. He is
unfamiliar with the rules of evidence. Left without
the aid of counsel he may be put on trial without a
proper charge, and convicted upon incompetent
evidence, or evidence irrelevant to the issue or
otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defense, even
though he have a perfect one. He requires the
guiding hand of counsel at every step in the
proceedings against him. Without it, though he be
not guilty, he faces the danger of conviction
because he does not know how to establish his
innocence. If that be true of men of intelligence,
how much more true is it of the ignorant and
illiterate, or those of feeble intellect. If in any case,
civil or criminal, a State or federal court were
arbitrarily to refuse to hear a party by counsel,
employed by and appearing for him, it reasonably
may not be doubted that such a refusal would be a
denial of a hearing, and, therefore, of due process
in the constitutional sense".
17. The above decision of the US Supreme Court has
been cited with approval in A.S. Mohammed Rafi Vs. State of
Tamil Nadu & Ors. reported in AIR 2011 SC 308.
CRL. REV. P. No.75 of 2014 Page 12 of 19
[13]
18. A similar view was also taken by the apex court in
Man Singh & Anr. vs. State of Madhya Pradesh reported in
(2008) 9 SCC 542 and in Bapu Limbaji Kamble Vs. State of
Maharashtra reported in (2005) 11 SC 412.
19. In this connection we may refer to Articles 21 and
22(1) of the Constitution. Articles 21 and Articles 22(1) provide
as under :
"Article 21. Protection of life and personal liberty. -
No person shall be deprived of his life or personal
liberty except according to procedure established
by law".
"Article 22(1). Protection against arrest and
detention in certain cases. - (1) No person who is
arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for
such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner
of his choice."
20. In Maneka Gandhi vs. Union of India reported in
AIR 1978 SC 597, it has been held by a Constitution Bench of
the apex court that the procedure for depriving a person of his
life or liberty should be fair, reasonable and just. It is not fair or
just that a criminal case should be decided against an accused in
the absence of a counsel. It is only a lawyer who is conversant
with law who can properly defend an accused in a criminal case.
Hence, if a criminal case (whether a trial or appeal/revision) is
decided against an accused in the absence of a counsel, there
will be violation of Article 21 of the Constitution. It has been
held thus in Md. Sukur Ali (supra).
The right to appear through the counsel has
existed in England for over three centuries. In
ancient Rome, there were great lawyers e.g. Cicero,
CRL. REV. P. No.75 of 2014 Page 13 of 19
[14]
Scaevola, Crassus, etc. who defended the accused.
In fact, the higher the human race has progressed
in civilization, the clearer and stronger has that
right appeared, and the more firmly has it been
held and asserted. Even in the Nuremberg trials,
the Nazi war criminals, responsible for killing
millions of persons, were yet provided counsel.
Therefore, when we say that the accused should be
provided counsel we are not bringing into existence
a new principle but simply recognizing what already
existed and which civilized people have long
enjoyed.
21. Apart from the above, in Md. Sukur Ali (supra) the
observation of the eminent jurist Seervai made in his
'Constitutional Law of India' [Third Edition, Vol. I, Page 857] has
been approvingly quoted. Let us also reproduce the same for
some more light on the point.
"The right to be defended by counsel does not
appear to have been stressed, and was clearly not
considered in any detail in Ajaib Singh's case
(1953) SCR 254. But the right of a person accused
of an offence, or against whom any proceedings
were taken under the Cr.P.C. is a valuable right
which was recognized by Section 340 Cr.P.C. Article
22 (1) on its language makes that right a
constitutional right, and unless there are
compelling reasons, Article 22 (1) ought not to be
cut down by judicial construction........ It is
submitted that Article 22 (1) makes the statutory
right under Section 340 Cr.P.C. a Constitutional
right in respect of criminal or quasi-criminal
proceedings."
We are fully in agreement with Mr. Seervai
regarding his above observations. The Founding
Fathers of our Constitution were themselves
freedom fighters who had seen civil liberties of our
people trampled under foreign rule, and who had
themselves been incarcerated for long period under
the formula `Na vakeel, na daleel, na appeal' (No
lawyer, no hearing, no appeal). Many of them were
lawyers by profession, and knew the importance of
counsel, particularly in criminal cases. It was for
this reason that they provided for assistance by
counsel under Article 22 (1), and that provision
must be given the widest construction to effectuate
the intention of the Founding Fathers.
In this connection, we may also refer to the ringing
speech of Rt. Hon. Srinivasa Sastri, speaking in the
CRL. REV. P. No.75 of 2014 Page 14 of 19
[15]
Imperial Legislative Council, at the introduction of
the Rowlatt Bill, Feb 7, 1919 (the Rowlatt Act
prohibited counsels to appear for the accused in
cases under the Act):
"When Government undertakes a repressive policy,
the innocent are not safe. Men like me would not be
considered innocent. The innocent then is he who
forswears politics, who takes no part in the public
movements of the times, who retires into his house,
mumbles his prayers, pays his taxes, and salaams
all the government officials all round. The man who
interferes in politics, the man who goes about
collecting money for any public purpose, the man
who addresses a public meeting, then becomes a
suspect. I am always on the borderland and I,
therefore, for personal reasons, if for nothing else,
undertake to say that the possession, in the hands
of the Executive, of powers of this drastic nature
will not hurt only the wicked. It will hurt the good
as well as the bad, and there will be such a
lowering of public spirit, there will be such a
lowering of the political tone in the country, that all
your talk of responsible government will be mere
mockery."
*********************
"Much better that a few rascals should walk abroad than that the honest man should be obliged for fear of the law of the land to remain shut up in his house, to refrain from the activities which it is in his nature to indulge in, to abstain from all political and public work merely because there is a dreadful law in the land."
In Gideon vs Wainwright, 372 US 335 (1963) Mr. Justice Hugo Black of the US Supreme Court delivering the unanimous judgment of the Court observed:
"Lawyers in criminal courts are necessities, not luxuries"
In Brewer vs William, 430 US 387 (1977) Mr Justice Stewart delivering the opinion of the US Supreme Court observed:
"The pressures on state executive and judicial officers charged with the administration of the criminal law are great. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all."CRL. REV. P. No.75 of 2014 Page 15 of 19 [16]
22. In view of the law as enunciated and approved by the apex court this court would have without a blink quashed the impugned judgment as the same has been passed in absence of the counsel of the accused and even in absence of the accused himself. But that process would protract the life of the litigation. Keeping this perspective in view, this court have heard the learned counsel much elaborately and scanned every bit of documents as produced by the prosecution. There surfaces that the sale deed dated 02.06.2005 which has been admitted by the petitioner is in pursuance to the agreement, though that has not been recorded in the sale deed, but it is the consistent case of the complainant as proved. The complainant nowhere stated that at the time of entering in the said contract to sale the petitioner had any intention to deceive the complainant and pursuant to that the petitioner had induced the complainant to enter into the agreement and make payment of the consideration money. What has further surfaced that in the sale deed dated 02.06.2005, there is no promise to handover the possession to the vendor within a week and no collateral agreement has been proved by the complainant. That apart, both the complainant (PW-1) and her husband (PW-3) have stated in unison that their son has a shop just adjacent to the disputed shop. Thus, it is quite improbable not to know that whether the shop that the complainant was purchasing was vacant or under possession of any other persons. Thus, this court is of the view that during or after execution of the sale deed there was no inducement from the petitioner to deceive CRL. REV. P. No.75 of 2014 Page 16 of 19 [17] the complainant. Even if there was any promise by the petitioner after the sale deed was executed there is no evidence to hold that such promise was preceded by intention to deceive the complainant. It is well settled that mere breach of agreement does not constitute deception or cheating. For establishing those elements it has to be proved that the transaction was preceded by intention of the accused for deception and inducement was made dishonestly to deliver any valuable property and if deception was not there the person who delivered the property would not have delivered the said property. However, it is not necessary that the deception should be by express words but it may be inferred from the conduct or may it be presumed from in the nature of the transaction itself. Even no such allegation has been made by the complainant that she had realised from the conduct of the petitioner that he had in mind to deceive her. In Uma Shankar Gopalka vs. State of Bihar reported in (2006) 2 SCC (Cri) 49 the apex court has laid down the law 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. In Hridaya Ranjan Prasad Verma v. State of Bihar reported in (2000) 4 SCC 168 the apex court has held as under:
"In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent CRL. REV. P. No.75 of 2014 Page 17 of 19 [18] conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
23. There is no evidence, as stated above, that after execution the petitioner made any promise of handing over the possession. On scrutiny of the sale deed it appears that the sale deed is strangely silent over the handing over the physical possession. The word 'to possess' also includes 'to possess constructively'. There is no such allegation against the petitioner that at the time of entering into the contract to sale dated 19.06.2002, the petitioner had any fraudulent or dishonest intention. In absence of any fraudulent or dishonest intention at the beginning or when such promise has been made it cannot be held that the person is guilty of the cheating. In International Advanced Research Centre for Power Metallurgy and New Materials (ARCI) and others vs. NIMRA Cerglass Technics (P) Ltd. and another reported in (2015) AIR SCW 5432 the apex court has reiterated the law as under:
"20. By analysis of terms and conditions of the agreement between the parties, the dispute between the parties appears to be purely of civil nature. It is settled legal proposition that criminal liability should not be imposed in disputes of civil nature. In Anil Mahajan v. Bhor Industries Ltd. & Anr. (2005) 10 SCC 228, this Court held as under:
"6. ........... A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the CRL. REV. P. No.75 of 2014 Page 18 of 19 [19] accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction."
24. Having held so this court is of the considered opinion that the impugned judgment affirming the judgment of conviction returned by the trial court is liable to be interfered with and accordingly it is interfered with inasmuch as fraudulent and dishonest intention to deceive the complainant at the beginning has not been proved beyond reasonable doubt, hence the impugned judgment is quashed. The petitioner is acquitted from the charge under Section 420 of the IPC on benefit of doubt.
In the result, this petition stands allowed. Sureties are discharged from their obligation.
Send down the LCRs forthwith.
JUDGE MB CRL. REV. P. No.75 of 2014 Page 19 of 19