Delhi District Court
State vs : Vijay Kumar Gupta on 3 September, 2014
IN THE COURT OF SH. SUDHANSHU KAUSHIK : ACMM-01 :
CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
State Vs : Vijay Kumar Gupta
FIR No : 159/1998
U/s : 420 IPC & 24 Emigration Act
PS : Paharganj
Unique Identification No. 02401R0377562003
Date of Institution: 31.07.1999
Date of Judgment reserved on: 30.08.2014
Date of Judgment: 03.09.2014
Brief details of the case
A. Sl. No. of the case 000992/P
B. Offence complained of
or proved U/s 420 IPC & 24 Emigration Act
C. Date of Offence 24.04.1996
D. Name of the complainant Sh. Malkiat Singh
S/o Sh. S.Dhian Singh
R/o Village Brhani,
PO Hardaspur, PS Amaria,
Distt. Pilibhit (UP)
E. Name of the accused Vijay Kumar Gupta
S/o Ramesh Prasad
R/o 6310, Main Bazar, Gandhi
Nagar, Delhi
F. Plea of the accused Pleaded not guilty
G. Final order Acquitted
H. Date of Order 03.09.2014
Judgment
On the accusation of cheating and dishonestly inducing Sh. Malkiat
Singh (hereinafter referred to as ' complainant' ) to part with a sum of Rs.
FIR No.159/1998 State Vs Vijay Kumar Gupta Page 1 of 14
2,45,000/- (Rupees Two lacs Forty-Five Thousands only) on the false promise
of arranging his emigration to Itlay, accused Vijay Kumar Gupta was sent up to
face trial for committing offences punishable under Section 420 IPC and 24 of
Emigration Act 1983.
Brief Facts as disclosed in the charge-sheet
2. The case of prosecution is that complainant (PW-2) was a resident of Village Birhani, PS Hardaspur, PS Amaria, Distt. Pilibhit (UP) while accused used to run a travel agency under the name and style of M/s Non-Stop Travels Pvt. Ltd. having its office at Premises No.2376, Rajguru Road, Paharganj, New Delhi. In the month of January 1996, accused induced complainant to part with a sum of Rs.2,45,000/- (Rupees Two Lac Forty-Five Thousands only) by promising that he can send him to Itlay. Believing upon the assurance given by the accused, complainant arranged the money by mortgaging his agricultural land with Nazar Singh (PW-5). The money was paid in two installments of Rs.1,00,000/- (Rupees Lac only) and Rs.1,45,000/- (Rupees Lac and Forth-Five Thousands only) and these installments were paid in the presence of Jaswant Singh (PW-1) and Trilok Singh (PW-3). Accused took the passport of complainant and on 24.04.1996, he booked him on plane with return ticket to Lajubljana via Moscow with assurance that his men would receive him at Lajubljana. However, the complainant was stopped at the airport as he has not carrying the requisite Visa and he was sent back by the authorities. On returning back, complainant demanded refund of the amount paid by him but accused kept assuring him that he would return his money or send him abroad. When, inspite of repeated requests, amount remained unpaid, FIR No.159/1998 State Vs Vijay Kumar Gupta Page 2 of 14 on 23.04.1998, complainant lodged a written complaint with Police Station Paharganj on which present FIR bearing No. 159/1998 under Section 420 IPC read with Section 24 of Emigration Act 1983 was registered.
3. Necessary investigation was carried out and statement of witnesses were recored. Accused was arrested but the cheated amount could not be recovered. On completion of investigation, charge-sheet was put to the court. Copies of the charge-sheet were supplied to the accused and charges under Section 420 IPC and Section 24 Emigration Act 1983 were framed against him to which he pleaded not guilty and claimed trial.
Witnesses Examined
4. In order bring home the charges against the accused, six prosecution witnesses were examined.
PW-1 Sh. Jaswant Singh (witness in whose presence the money was handed over to accused) stated that accused gave assurance to the complainant that he would send him to a foreign country. He mentioned that the amount of Rs.2,45,000/-(Rupees Two Lacs Forty-Five Thousands only) was paid in two installments of Rs.1,00,000/-(Rupees One Lac only) and Rs. 1,45,000/-(Rupees One Lac Forty-Five Thousands only) and both these installments were paid in his presence at the office of accused at Paharganj, New Delhi.
PW-2 Sh. Malkiat Singh (complainant) narrated the entire episode mentioning that he generated the amount by selling/mortgaging his agricultural land. He stated that accused sent him to Lajubljana from where he was deported by the authorities as he was not possessing the requisite Visa. He mentioned FIR No.159/1998 State Vs Vijay Kumar Gupta Page 3 of 14 that after his return, accused kept assuring him that he would either return his money or send him abroad. He stated that accused only returned a sum of Rs. 45,000/-(Rupees Forty-Five Thousands only) but failed to return the remaining amount.
PW-3 Sh. Trilok Singh (father-in-law of complainant) deposed on the line of Malkiat Singh mentioning that the payment was made to the acused in two installments. He stated that he was accompanying the complainant at the time of payment of both the installments and at that time, Jaswant Singh was also accompanying them.
PW-4 ASI Dhyan Singh (Duty Officer, PS Paharganj) deposed about registration of FIR. The copy of FIR is Ex.PW-4/A. PW-5 Nazar Singh (Mortgagee to whom the property was mortgaged by the complainant) mentioned that complainant mortgaged his agricultural land for securing loan from him but the amount was not repaid. He stated in his cross examination that complainant had mortgaged 3 acres of land with him for securing a sum of Rs.90,000/-(Rupees Ninety Thousands only) PW-6 Insp. Naveen Chandra (Investigating Officer) justified the investigation carried out by him.
5. Statement of accused was recorded under Section 313 Cr.P.C wherein he denied all the allegations and stated that he has been falsely implicated in the present case. He mentioned that the alleged amount of Rs. 2,45,000/- was not paid to him by the complainant. No defence witness was examined by him.
FIR No.159/1998 State Vs Vijay Kumar Gupta Page 4 of 14
Arguments
6. I have heard Ld. APP for State as well as Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Ld. Defence Counsel has argued that prosecution has failed to establish its case. He contended that the evidence on record is not sufficient to conclusively arrive at a finding that accused made dishonest or fraudulent inducement to the complainant or that complainant acted upon the purported inducement. He has argued that the testimony of complainant is to be discarded as he has not been cross examined and there is no other evidence to establish the alleged offence of cheating. He argued that Jaswant Singh (PW-1) has admitted in his cross examination that the initial proposal/promise by the accused was not made in his presence while the testimony of Trilok Singh (PW-3) amounts to hearsay. It has been argued by the counsel that, even if, the prosecution' s case is taken to be absolutely correct, still, the offence of cheating is not made out as there is no evidence to infer that accused had the intention to cheat, at the inception, when the alleged promise was made him.
8. On the other hand, Ld. APP has countered the arguments of defence arguing that the prosecution' s case stands proved beyond reasonable doubt. He contended that the testimony of witnesses establish that complainant acted upon the false promise made by the accused and paid him a sum of Rs.2,45,000/-. He argued that dishonest intention to cheat, since the inception of the transaction, is evident as accused was not an authorized agent to arrange for emigration of citizens of India to Itlay. He has submitted that, even if, the testimony of complainant is discarded, still, there is ample evidence to establish that accused FIR No.159/1998 State Vs Vijay Kumar Gupta Page 5 of 14 committed the offence of cheating. He has argued that the requisite criminal intention (mens-rea) to cheat the complainant can be inferred from the circumstances depicted by Jaswant Singh and Trilok Singh.
Brief reasons for decision
9. I have perused the record in the light of respective arguments.
10. The charges against the accused are that he cheated and dishonestly induced the complainant to deliver him a sum of Rs.2,45,000/- by making a false promise that he would arrange for his emigration to Itlay. Charges under Section 420 IPC and Section 24 of the Emigration Act 1983 have been framed against the accused. Section 420 IPC provides punishment for cheating and states that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of valuable security or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with the imprisonment provided under the said Section. The term cheating has been defined under Section 415 IPC. It provides that whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if, he was not so deceived, and which act of omission causes or his likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat. Thus, to conclude that a person has cheated a person, the first and foremost ingredient is that there should be a dishonest inducement to deceive a person to deliver any property FIR No.159/1998 State Vs Vijay Kumar Gupta Page 6 of 14 and the person so deceived must act on the said dishonest inducement.
11. For the purpose of holding a person guilty under Section 420, the evidence adduced must establish, beyond reasonable doubt, mens-rea on his part. A guilty intention is an essential ingredient of the offence of cheating and mens-rea on part of the accused must be established before he can be convicted of an offence of cheating. Unless the evidence shows that accused had dishonest or fraudulent intention at the time of making dishonest inducement, he can not be convicted for the offence of cheating. Record must show that the intention to deceive was in existence at the time when the inducement was offered. Prosecution has to prove every ingredient of the offence of cheating including the burden of proving the mental state of the accused where intention or knowledge forms one of the ingredients of the offence and that the act of accused was intentional.
12. Thus, broadly, it can be said that there are three essential ingredients to attract Section 420 IPC: (i) Cheating; (ii) dishonest inducement to deliver property or to make or alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into valuable security and; (iii) mens-rea of the accused at the time of making a false representation. The making of a false representation is one of the essential ingredients for the offence of cheating under Section 420 IPC. Let us peruse the record to see whether these ingredients have been proved.
13. The fact that complainant paid a sum of Rs.2,45,000/- to the accused has been proved. Jaswant Singh (PW-1) has deposed that complainant gave a sum of Rs.2,45,000/- to the accused in two parts. He stated that initially, FIR No.159/1998 State Vs Vijay Kumar Gupta Page 7 of 14 in the month of January 1996, a sum of Rs.1,00,000/- was paid to the accused and after about 10-15 days, further payment of Rs.1,45,000/- was made to him. He stated that both the payments were made in cash, at the office of accused, located at Paharganj. Malkiat Singh (PW-2) has also stated that he made the payment in two installments of Rs.1,00,000/- and Rs.1,45,000/-. He mentioned that he arranged the said amount by mortgaging/selling his agricultural land. Trilok Singh (PW-3), father-in-law of accused, has also stated so.
14. Ld. Defence Counsel has challenged the testimony of Trilok Singh mentioning that his testimony amounts to hearsay. He has further argued that testimony of complainant is to be discarded as he has not been cross examined by the accused. Counsel has argued that incomplete testimony of complainant can not be read in evidence. Record shows that initially, on 14.03.2006, complainant was examined but his cross examination was recorded as ' nil' after an opportunity was given to the counsel of accused as he did not appear to cross examine the said witness. Subsequently, vide order dated 15.03.2010, an application under Section 311 Cr.P.C was allowed by the court of Sh. Santosh Snehi Mann, Ld. ASJ and accused was granted an opportunity to cross examine the complainant. In compliance of the said order, summons were served upon the complainant but the same were received back with report that he is pursuing a job at Itlay. Report was forwarded that wife of accused was found available at the address who made a statement that her husband is pursuing a job at Itlay for the last 3-4 years. On this report, the evidence was closed by the Ld. Predecessor and the matter was listed for final arguments. I am of the considered opinion that in the circumstances of the present case, the previous FIR No.159/1998 State Vs Vijay Kumar Gupta Page 8 of 14 statement of complainant which was recorded by the court on 14.03.2006 can be read in evidence as opportunity was given to the accused to cross examine the witness but he failed to avail the opportunity and subsequently, a report on the summons was received that the presence of this witness can not be secured without any amount of delay. Reference in this regard can be made to Section 33 of the Indian Evidence Act which expressly provides that the evidence given by a witness in judicial proceedings is relevant for the purpose of proving, in a subsequent judicial proceedings, or in a later stage of same judicial proceedings, the truth of the fact which it states when the witness is dead or can not be found or is incapable of given evidence or is kept out of the way by the adverse party or if his presence can not be obtained without any amount of delay or expense which, under the circumstances of the case, the court considers unreasonable. Thus, the earlier testimony of complainant is relevant and can be read in evidence.
15. Now coming to the testimony of Trilok Singh (PW-3). He deposed that Malkiat Singh told him that complainant had arranged money by selling/mortgaging his agricultural land. He stated that complainant told him in the month of January 1996 that he would be leaving for Itlay. He mentioned that on the request of complainant, he accompanied him to Delhi and payment of Rs.1,00,000/- (Rupees One Lac only) was made to the accused in his presence. He identified the accused mentioning that he had assured to arrange the emigration of complainant to Itlay. He mentioned about the second installment stating that a further sum of Rs.1,45,000/- (Rupees One Lac Forty- Five Thousands only) was paid to the accused after 15 days and this time also, FIR No.159/1998 State Vs Vijay Kumar Gupta Page 9 of 14 he accompanied the complainant. He stated that complainant also handed over his passport to the accused at his office at Chuna Mandi, Paharganj. He mentioned that accused neither honoured his commitment nor returned the amount to the complainant. This testimony has been challenged primarily on the ground that it amounts to hearsay. I am in agreement with the argument of the defence that the testimony of this witness, in so far as it relates to the aspect of inducement by the complainant, amounts to hearsay but the same can not be said about his deposition wherein he stated that the payment was made to the accused in his presence. He has categorically mentioned that he accompanied the complainant on both the occasions when payment of Rs.1,00,000/- and Rs. 1,45,000/- was made to the accused at his office.
16. Thus, as observed in preceding paras, the aspect of payment made to the accused has been proved. Now what remains to be seen is whether accused made fraudulently or dishonestly inducement to the complainant for making the said payment? In order to establish the inducement part, prosecution has relied upon the testimony of Jaswant Singh (PW-1), complainant (PW-2) and Trilok Singh (PW-3). As observed earlier, the testimony of Trilok Singh, qua the inducement part, amounts to hearsay and same is to be excluded in terms of Section 60 of the Indian Evidence Act, 1872. The witness has mentioned that it was complainant who told him in the month of January 1996 that accused assured him to arrange his emigration to Itlay. He stated that such an assurance was also made by the accused when he accompanied the complainant to his office for making payment of Rs.1,00,000/- (Rupees One Lac only). The testimony of this witness suggests that accused made a FIR No.159/1998 State Vs Vijay Kumar Gupta Page 10 of 14 representation for arranging emigration of the complainant to Itlay but the other witnesses have not stated so. Even the complainant did not mention that accused promised to arrange his emigration to Itlay. He has simply stated that accused told him that he would arrange for him a foreign tour and demanded a sum of Rs.2,45,000/- (Rupees Two Lacs and Forty-Five Thousands only) from him. Jaswant Singh admitted in his cross examination that initial talks between the complainant and accused did not take place in his presence.
17. It is a settled law that for establishing the offence of cheating, the prosecution is duty bound to show that accused had fraudulent or dishonest intention at the time of making promise for representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is time when the promise was made, can not be presumed. Thus, the record must show that the accused had dishonest or fraudulent intention at the time when the complainant parted with the money. Unless the record demonstrates such an intention at the inception of the transaction/contract, it would not amount to an offence under Section 420 IPC, although, it may amount to breach of contract. Illustration (g) to Section 415 IPC aptly defines the difference between cheating and criminal breach of contract. I take liberty to quote the relevant illustration, " Illustration (g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant 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 contract and does not deliver it, he does not cheat, but is liable only FIR No.159/1998 State Vs Vijay Kumar Gupta Page 11 of 14 to a civil action for breach of contract." Thus, breach of every promise would not amount to cheating unless the fraudulent intention to cheat can be inferred at the inception of the promise.
18. On appreciating the record, I am of the considered opinion that there is no concrete evidence on the basis of which it could be concluded that accused made a fraudulent or dishonest inducement to the complainant at the time of inception of the oral contract. Admittedly, accused was a travel agent running a travel agency from Paharganj, New Delhi. Jaswant Singh has stated in his cross examination that he came to know about the accused from some other person but he can not tell the name of that person. Complainant has deposed that he came in contract with the accused for the purpose of going to Itlay. He has not stated that accused promised to arrange for his emigration, although, Trilok Singh has stated so. He stated that accused took his passport mentioning that he would arrange for his Visa but kept postponing the matter for two years. He mentioned that between this period, wife of the accused gave him a ticket of domestic airline from Delhi to Bombay and it appears from his testimony that he flied on that ticket to Bombay and stayed there for 5-7 days. He has further stated that in the year 1996, accused gave him a return ticket to Lajubljana via Moscow and he flied on that ticket. He mentioned that although, he reached Lajubljana but the authority deported him back to India as he was not carrying a valid Visa. He stated that after returning back to India, he repeatedly approached the accused for refund of the amount paid by him but only a sum of Rs.45,000/- was returned by the accused. It appears from the evidence on record that act of accused, at best, can be described as breach of FIR No.159/1998 State Vs Vijay Kumar Gupta Page 12 of 14 contract. There is no cogent evidence to conclude that accused had a fraudulent or dishonest intention at the time when he made promise to send the complainant to Itlay. What can be concluded from the record is that the accused, as a travel agent, made a promise to arrange for travel of complainant to Itlay but failed to do so. It is not that accused failed to arrange a foreign trip of the complainant or that there was no intention on his part to arrange the promised trip. Complainant himself has stated that in the year 1996, on a return ticket provided by the accused, he flew to Lajubljana via Moscow but he was deported by the authority. In case, accused had not kept his promise, then, there was no occasion for the complainant to fly to a different country upon the ticket provided by the accused. The fact that he used the ticket provided to him by the accused goes on to show that he ratified the variation in the initial contract made by the accused wherein he made promise to send him to Itlay. The delay for around two years in lodging the complaint goes on to show the reluctance of the complainant and no plausible explanation for the said delay has been tendered.
19. In view of the discussion made in the aforesaid paras, I have reached a conclusion that the material on record is insufficient to conclude that accused had dishonest or fraudulent intention to cheat the complainant at the time of making promise that he would be sending him to Itlay. The failure of accused to keep his promise amounts to breach of contract for which the accused may avail civil remedies but to hold the accused guilty for committing the offence of cheating would not be a correct preposition. The prosecution has to prove every ingredient of the offence in question beyond a shadow of FIR No.159/1998 State Vs Vijay Kumar Gupta Page 13 of 14 reasonable doubt including the mental state of the accused wherever intention or knowledge forms one of the ingredients of the offence and that the act of accused was intentional. The circumstances, as depicted on record, does not establish that the accused was having the guilty intention (mens-rea) of cheating the complainant at the time of making the initial promise. The offence of cheating has not been proved. Charge under Section 24 of Emigration Act 1983 has also not been established. The result is obvious. Accused Vijay Kumar Gupta stands acquitted of the charges under Section 420 IPC and 24 Emigration Act, 1983.
File be consigned to record room after necessary compliance.
Announced in open Court (SUDHANSHU KAUSHIK)
on 03.09.2014 ACMM-01, Central District,
Tis Hazari Courts, Delhi
It is certified that this judgment contains Fourteen (14) pages and each page bears my signatures.
(SUDHANSHU KAUSHIK) ACMM-01, Central District, Tis Hazari Courts, Delhi FIR No.159/1998 State Vs Vijay Kumar Gupta Page 14 of 14