Tripura High Court
Shri Dhiman Das vs The State Of Tripura ... on 24 February, 2021
Equivalent citations: AIRONLINE 2021 TRI 121
Author: S.G. Chattopadhyay
Bench: S.G. Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. 65 of 2017
Shri Dhiman Das
Village : Kalachari, No.1
P.S. : Kamalpur
District : Dhalai, Tripura ------- Petitioner(s)
Versus
The State of Tripura ------Respondent(s)
For Petitioner(s) : Mr. A. Basak, Adv.
For Respondent(s) : Mr. Ratan Datta, PP.
Date of hearing : 22.01.2021
Date of pronouncement : 24.02.2021
Yes No
Whether fit for reporting :
BEFORE
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Judgment & Order
[1] This Criminal Revision Petition has been filed
challenging the judgment and order dated 22.06.2017 delivered by the Addl. Sessions Judge, Unakoti Judicial District, Kamalpur in Criminal Appeal No.01 of 2017 whereby the learned Addl. Sessions Judge upheld the conviction and sentence of the petitioner under Section 420 of the Indian Penal Code (IPC in short) but reduced his sentence from Simple Imprisonment (SI) CRP/65/2017 Page 2 of 22 for 01 year to Simple Imprisonment for 6 months while maintaining the fine of Rs.6,000/- awarded by the Sub-divisional Judicial Magistrate, Kamalpur, Unakoti Judicial District by his judgment and order dated 06.12.20216 in case No. PRC(WP) 07 of 2016.
[2] The genesis of the prosecution case is rooted in the written FIR lodged by Sri Dipakmani Dey, S/o Sri Durjamani Dey of Manik Bhandar, Kamalpur, alleging, inter alia, that on 28.11.2015 in his absence at home the petitioner met his 85 years old father and took a sum of Rs.6,000/- from his father by making a promise that in return he would give him a gold chain. His father reposed faith in the petitioner and delivered the whole amount of Rs.6,000/- to the petitioner immediately. When the informant returned home from Agartala in the evening, his father unfolded the incidence to him. The informant then started searching for the petitioner but he was found nowhere. After about 2 weeks, the informant met the petitioner at his home on 11.12.2015 and demanded the money. He refused to pay back the money and threatened the informant with dire consequences. 02 CRP/ 65/ 2017 Page 3 of 22 days thereafter, the informant [PW-1] lodged this FIR making allegations of cheating against the petitioner. [3] Based on the said written ajahar of the informant, Kamalpur P.S. Case No.2015 KMP 115 dated 13.12.2015 under Sections 420 and 506 IPC was registered and the case was taken up for investigation.
[4] After the investigation was complete, the final report charge-sheeting the petitioner for prosecution under Sections 420 and 506 IPC was filed. The trial court after taking cognizance framed charges against the petitioner under Sections 420 and 506 IPC to which the petitioner pleaded innocence and claimed to be tried. The charges framed by the trial court against the petitioner are reproduced hereunder:
"Firstly, that on 28/11/2015 at about 14.00 hours at Manik Bhandar under Kamalpur P/S, you dishonestly and fraudulently induced Durjamani Dey to deliver certain property to wit Rs.6,000/- and that you thereby committed the offence of cheating punishable u/sec 420 of Indian Penal Code and within the cognizance of this Court.
Secondly, on the same date, time or subsequently any time and place as mentioned above, you committed criminal intimidation by threatening with dire consequence to kill informant Dipakmani Dey, S/O, Durjamani Dey and that you thereby committed the offence under sec.506 of Indian Penal Code and within the cognizance of this Court.
CRP/ 65/ 2017 Page 4 of 22 I do hereby direct that you be tried on the said charges."
[5] In order to substantiate the charge, prosecution examined as many as 06 witnesses including PW-1, his father Durjamani Dey[PW-2], neighbor Nidhu Das[PW-3], neighbor Samir Kanda[PW-4], police officer Dipankar Debnath[PW-5] who investigated the case and Pradip Datta[PW-6] who is a neighbor of the informant. The prosecution also introduced several documents including the written complaint, printed FIR form, signatures of the witnesses on these documents, hand sketch map of the place of occurrence with separate index etc. which were taken into evidence and marked as Exhibit-1 to Exhibit-3. For the defence no evidence was adduced. [6] During his examination under Section 313 Cr.P.C. the accused petitioner made the following statement in reply:
"In fact, I gave him[PW-1] my gold chain to have loan. Subsequently, I did not take loan and asked him to return my chain. On hearing this he assaulted me"
[7] At the conclusion of trial the trial, judge returned the finding of conviction of the petitioner under Section 420 IPC holding as under:
CRP/ 65/ 2017 Page 5 of 22 "24.Accused Dhiman Das has revealed in his statement recorded under Sec.313, Cr.P.C that he gave PW-1 his gold chain to obtain loan. Subsequently, he did not take loan and asked PW-1 to return his money. On hearing this, complainant has assaulted him. But this defence story has not been come up in the cross-examination of the prosecution witnesses. In his statement recorded under Section 313, Cr.P.C accused initially inclined to adduce defence evidence but the order passed by my Ld. Predecessor dated 14-09-2016 reflects that on the date fixed for adducing defence evidence, accused Dhiman Das declined to adduce any defence evidence. Thereafter, the case was fixed for hearing arguments. Hence, in spite of getting opportunity to lead evidence in support of his contention accused did not adduce any defence evidence. Thus, I find that prosecution has successfully proved the charge leveled against the accused Dhiman Das under Sec.420, IPC beyond reasonable doubt and point no.1 is accordingly answered in positive and in favour of the prosecution.
25.Now, coming to point no.2 in determination I find that only from the testimony of PW-1 it has been revealed that accused has committed criminal intimidation by threatening the complainant to kill. But the same is not supported by any corroborative evidence. Moreover, the intention of the accused to intimidate the complainant has not been proved in the evidence. Thus, I find that due to lack of evidence the charge against the accused under Sec.506, IPC has not been proved beyond reasonable doubt. Consequently, point no.2 is answered in negative and against the prosecution."
[8] Before awarding sentence, the trial court recorded the reasons as to why the benefit of the Probation of Offenders Act, 1958 was not given to the convict petitioner. It was viewed by the trial court that the convict petitioner deceived an old person who CRP/ 65/ 2017 Page 6 of 22 trusted him and in view of the nature of deception, the trial court declined to release the convict petitioner under the Probation of Offenders Act, 1958 and sentenced him to Simple Imprisonment for 01 year for offence punishable under Section 420 IPC and imposed a fine of Rs.6,000/- on him with default stipulation and it was ordered that the fine money on realization be paid to PW-1. [9] Learned appellate court re-assessed the evidence of the prosecution witnesses in the course of hearing the appeal and found that the conviction of the petitioner was based on proper appreciation of evidence. However, the appellate court felt that the sentence awarded to the convict petitioner was harsh. Accordingly, the appellate court reduced the sentence from SI for 01(one) year to SI for 6(six) months while maintaining the fine awarded by the trial court. The convict petitioner was asked to surrender before the trial court to serve out the sentence.
Aggrieved by and dissatisfied with the said judgment of the appellate court, convict petitioner filed this revision petition.
CRP/ 65/ 2017 Page 7 of 22 [10] Heard Mr. A. Basak, learned advocate appearing for the petitioner as well as Mr. Ratan Datta, learned PP, representing the State respondent.
[11] Appearing for the petitioner, Mr. A.Basak, learned advocate has emphasized mainly on the following grounds to assail the impugned judgment of the appellate court:
(i) Basic ingredients of cheating have not been proved.
(ii)No witness had seen the father of the informant paying the money to the petitioner and heard the petitioner saying the father of the informant that in turn he would give him a gold chain.
(iii)The courts below did not take into consideration the contradictions appearing in the evidence of PW-3, PW-4 and PW-6.
(iv)The courts below gave erroneous judgments ignoring the discrepancies appearing in the prosecution witnesses on material points and CRP/ 65/ 2017 Page 8 of 22 therefore, the judgments of the courts below are liable to be set aside.
[12] From the other side, Mr. Ratan Datta, learned PP has submitted that oral testimonies of the prosecution witnesses cannot be discarded because they did not have any personal enmity with either the informant or his father. Mr.Datta, learned PP has further submitted that the father of the informant is a 83 years old man and he had no reason to give false statement before the court against the petitioner who was his neighbor. According to learned PP, the judgments of the courts below are based on proper appreciation of evidence and therefore, there is no reason to interfere with the concurrent findings of the courts below with regard to the conviction and sentence of the petitioner. It is submitted by Mr.Datta, learned PP, that the appellate court considered the age of the of the accused and his back ground and the entire facts and circumstances of the case and observed that simple imprisonment for 06 months and fine of Rs.6,000/- would be appropriate in the case. Accordingly the appellate court by the impugned judgment dated 22.06.2017 upheld the conviction of CRP/ 65/ 2017 Page 9 of 22 the petitioner while modifying his sentence. According to Mr.Datta, learned PP, there is no wrong in the impugned judgment of the appellate court and therefore, the revision petition is liable to dismissed.
[13] This court has scrutinized the records afresh and found that PW-1, Dipakmani Dey, informant is no eye witness to the case. According to him he has a sweet shop at Manik Bhandar in Kamalpur. In his absence at Manik Bhandar on 28.11.2015 his father was running the shop. The accused petitioner then came to their shop and requested his father to give him Rs.6000/- and he made a promise to his father that in return he would give him a gold chain. On the basis of his promise, his father gave the petitioner a sum of Rs.6000/- immediately. 20 days elapsed. But the petitioner neither returned the money to his father nor gave the gold chain. On a day thereafter, the PW met him in front of his said sweet shop. When he demanded the money, the petitioner threatened him with dire consequences. PW-1 then filed FIR [Exbt.1] against the petitioner.
CRP/ 65/ 2017 Page 10 of 22 In his cross examination the PW stated that he had no documentary proof in support of the fact that his father actually paid Rs.6000/- to the petitioner. The PW further stated in cross that there were many other shops adjacent to his said sweet shop at Manik Bhandar. The PW, however, denied that he lodged a false case against the petitioner.
[14] PW-2, Durjamani Dey is the father of the informant. He stated at the trial that he was running the sweet shop of his son[PW-1] at Manik Bhandar in his absence at Manik Bhandar on the material day. At that time the petitioner came and took Rs.6,000/- from him by assuring that in return he would give him a gold jewelry. Subsequently, when no gold jewelry was given to the PW by the accused petitioner, he informed his son about the incidence. His son also failed to get back the money from the accused. Thereafter, his son reported the matter to police.
In cross, the PW denied that the accused petitioner did not take the sum of Rs. 6,000/- from him and that he did not promise to him that in return he would give him gold jewelry. CRP/ 65/ 2017 Page 11 of 22 [15] PW-3, Nidhu Das, came to the sweet shop of the informant at the material time when he saw the father [PW-2] of the informant running the sweet shop in absence of his son. At that time, the petitioner came there and requested the father of the informant to give a sum of Rs.6000/- to him. The accused petitioner assured the father of the informant that in return he would give him a gold chain by the evening. Subsequently, the PW heard that the petitioner failed to keep his promise and consequently, the informant [PW-1] lodged the complaint against the petitioner.
[16] PW-4, was an employee in the said sweet shop of the informant. He also stated at the trial that in absence of the informant[PW-1] at Manik Bhandar, his father was running the sweet shop. At around 3.30 p.m. the accused came to the shop and negotiated with the father of the informant that if he gets a sum of Rs.6000/- from the father of the informant, in return, he would give him a gold jewelry. The PW was available in the said shop at that time. Having returned to Manik Bhandar, the CRP/ 65/ 2017 Page 12 of 22 informant demanded the money from the petitioner. But he declined to pay back the money.
In cross examination, the PW stated that he was not aware about the denominations of the notes which were given to the convict petitioner by the father of the informant. He denied in his cross examination that he gave false evidence against the petitioner.
[17] PW-5, Dipankar Debnath who is the Investigating Officer of the case stated at the trial as to when and how he received the FIR and registered the case against the accused. He also deposed as to how he has done the investigation. He stated at the trial that his investigation revealed involvement of the accused in the alleged offence and therefore, he submitted charge sheet against him.
[18] PW-6, Pradip Datta, a neighbor of the informant simply stated at the trial that the petitioner had taken a sum of Rs.6,000/- from the father of the informant with assurance to pay back the money within the given time. Subsequently, he declined CRP/ 65/ 2017 Page 13 of 22 to pay back the money as a result of which the informant lodged the case against him. Nowhere in his evidence he stated that he had seen the father of the informant making payment of the alleged sum of Rs.6,000/- to the convict petitioner. [19] All the circumstances put up by the prosecution against the petitioner have been examined by this court. It has surfaced on record that other than PW-2 who allegedly paid the alleged sum of Rs.6000/- to the petitioner and PW-3, and PW-4 there is no other witnesses who actually saw the father of the informant making the payment of Rs.6000/- to the petitioner. Among these witnesses PW-2 is stated to be a person of the age of 83 years and PW-4 could not say about the denominations of the notes which were actually paid by informant's father [PW-2] to the petitioner. PW-3 introduced a new fact to the case. He said that the convict petitioner promised to deliver the gold chain to the father of the informant within the same evening. But neither the informant made such statement in his FIR, nor in his testimony at the trial. Even his father [PW-2] also did not make such statement. Other than the oral testimony of these 03 CRP/ 65/ 2017 Page 14 of 22 witnesses, which carries discrepancies, there is no other proof, oral or documentary, to prove the payment of a sum of Rs.6000/- to the petitioner by the father of the informant. . [20] The learned trial court held that since the accused did not deny the allegations in the cross examination or in the course of his examination under Section 313 Cr.P.C. he would be deemed to have admitted the allegations. Said view of the learned trial court is not acceptable because burden to prove the case rests on the prosecution and in absence of cogent proof, accused cannot be held guilty on the ground that he did not deny the allegations while cross examining the witnesses or that he did not make statement denying the allegations in his examination under Section 313 Cr.P.C. This apart, it is found from the cross examination of the prosecution witnesses that it was suggested to each of the witnesses during their cross examination that they are giving false statement before the court and also in his examination under Section 313, Cr.P.C the accused denied the charges brought out against him by prosecution witnesses. CRP/ 65/ 2017 Page 15 of 22 [21] In the given case, petitioner has been convicted and sentenced for the offence of cheating. Cheating has been defined in IPC under Section 415 which reads as follows:
"415. Cheating.--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 were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
Illustrations........
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and CRP/ 65/ 2017 Page 16 of 22 thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.
(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 to a civil action for breach of contract.
(h) A intentionally deceives Z into a belief that A has performed A's part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats."
[22] Section 420 provides punishment for cheating and dishonestly inducing delivery of property. The Section reads as under:
"420. Cheating and dishonestly inducing delivery of property.--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 a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
CRP/ 65/ 2017 Page 17 of 22 [23] In the given case the accused is convicted and sentenced under Section 420 IPC on the charge of cheating simply on the ground that he received Rs.6000/- from the father of the informant assuring that in return he would give him a gold jewelry. Apparently, no guilty intention or mens rea has been attributed to the convict petitioner which is the gravamen of the offence of cheating. Let us examine, even if the allegation is taken to be true, whether the petitioner can be held guilty. [24] The Apex Court in Ajay Mitra vs. State of M.P. and Ors. reported in (2003) 3 SCC 11 has succinctly held that a guilty intention is an essential ingredient of the offence of cheating. Observation of the Apex Court is as under:
"16.A guilty intention is an essential ingredient of the offence of cheating. In other words 'mens rea' on the part of the accused must be established before he can be convicted of an offence of cheating. (See Jeswantrai Manilal Akhaney v. The State of Bombay) In Mahadeo Prasad v. State of W. B. it was held as follows : (AIR paras 4-5) "Where the charge against the accused is under S.420 in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery an intention to do CRP/ 65/ 2017 Page 18 of 22 so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods then a case of cheating would be established."
17. In Hari Prasad Chamaria v. Bishun Kumar Surekha it was held that unless the complaint showed that the accused had dishonest or fraudulent intention at the time the complainant parted with the money it would not amount to an offence under Section 420 IPC and it may only amount to breach of contract. In G.V. Rao v. L.H.V. Prasad it was reiterated that guilty intention is an essential ingredient of the offence of cheating and, therefore, to secure conviction 'mens rea' on the part of the accused must be established. It has been further held that in order to constitute the offence of cheating the intention to deceive should be in existence at the time when the inducement was offered."
[25] In Murarilal Gupta Vs. Gopi Singh reported in (2005) 13 SCC 699 it has been enunciated by the Apex Court that fraudulent or dishonest intention at the time of inducing the person deceived to part with the property is an essential ingredients to constitute an offence punishable under Section 420 IPC. Observation of the Apex Court in this regard is as under:
"6...... Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Indian Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with money. It is not CRP/ 65/ 2017 Page 19 of 22 the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 of the I.P.C. is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurize the petitioner for coming to terms with the respondent."
[26] In the case of HARMANPREET SINGH AHLUWALIA & ORS. VERSUS STATE OF PUNJAB & ORS reported in (2009) 7 SCC 712: 2009 Cri.LJ 3462(SC), the Apex Court has held that unless culpable intention at the time of making the final terms is proved against the accused no offence under Section 420 IPC is made out even if failure by the accused to keep the promise is proved. The Apex Court has held as under:
"11. ............Section 415 of the IPC defines cheating as under:
"Section 415.----Cheating--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 CRP/ 65/ 2017 Page 20 of 22 which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to `cheat'."
An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
i) deception of a person either by making a false or misleading representation or by other action or omission;
(ii) fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
12. 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 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.
13. We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract."
[27] The proposition of law which emerges from the said decisions is that the prosecution has to prove fraudulent or CRP/ 65/ 2017 Page 21 of 22 dishonest intention against the accused at the time when the promise was initially made by him and in absence of proof of any such culpable intention at the beginning when promise was made no offence of cheating can be made out against the accused, even if he fails to keep the promise subsequently. Such dishonest intention can be proved by direct evidence or it can be proved by circumstances from which reasonable interference can be drawn against the accused.
[29] Keeping in mind the law enunciated by the Apex Court in the judgments cited to supra and having regard to the factual backdrop of the case in mind and the evidence adduced by the prosecution in support of the charge, this court is of view that no mens rea or culpable intention against the petitioner has been proved. It is no case of the prosecution that accused was not capable of returning back the money allegedly taken by him from the father of the informant [PW-2]. He was a known person to the informant and his ability was not also unknown to him. There is no iota of evidence either oral or circumstantial that it appeared to the father of the informant or any of the witnesses that right from CRP/ 65/ 2017 Page 22 of 22 the beginning the petitioner exercised fraud or acted in a deceptive manner. None said that his promise appeared to be a hoax to them. In these circumstances, even if the evidence of the prosecution witnesses with regard to payment of money to the petitioner is taken to be true, the charge of cheating for his failure to pay back the money does not stand established against him.
Resultantly, revision petition stands allowed and the impugned judgment is set aside.
Consequently, the convict petitioner is set at liberty. His bail bond stands discharged.
Send down the LCR.
JUDGE Saikat Sarma CRP/ 65/ 2017