Patna High Court
Deodhari Mahto vs Emperor on 1 November, 1920
Equivalent citations: 59IND. CAS.921, AIR 1921 PATNA 80
JUDGMENT Jwala Prasad, J.
1. The petitioner has been convicted under Section 417 of the Indian Penal Code by the Magistrate of Palamau, exercising second class powers. The conviction has been upheld by the Deputy Commissioner.
2. The complainant had executed a kamiati bond on a stamp paper, eight or nine years ago, for an advance of Rs. 15. On the 10th of June 1920 the complainant paid the petitioner Rs. 22, the amount of the bond with interest. The complainant naturally expected that the bond would be returned to him and the accused after taking money went inside his house to fetch the bond. The bond war, however, not returned and the complainant was told by the accused that the kamiati parcha of his homestead must also be returned before he could get the bond. While accepting the services of the accused under the kamiati bond in question, the complainant had got settlement of the homestead land out of the accused's holding.
3. The complainant forthwith went to the Magistrate and lodged his complaint the next day.
4. On the 20th June a warrant of arrest of the accused was sent for execution to the Sub Inspector of Police. The bond was returned by the accused to the complainant on the 2 st and the accused appeared in Court on the 23rd.
5. The accused pleaded not guilty, but admitted receipt of the money and explained his failure to return, the bond on account of his son being away who had with him key of the basket containing the bond. He also pleaded premature return of the money in Asadh, where as according to the stipulation in the bond the money was to be paid bank in the month of Magh, and that the complainant's giving up services in the month of Asadh when agricultural operations commence, was inconvenient to the accused.
6. The Magistrate held that the assumed in refusing to return the bond after receipt of the money was actuated by a motive to retaliate for the inconvenience accused to him by the complainant returning the money before its due date and giving up services in Asadh, and was, therefore, guilty of having practised deception and having a fraudulent intention, and accordingly convicted him of cheating under Section 417, Indian Penal Code.
7. The learned Deputy Commissioner took the same view He replied to the argument on behalf of the accused that the facts proved did not constitute an offence of cheating, by holding that the accused by consenting to receive the money did in fact induce the complainant to believe that he would return the bond and that it was clearly under this belief that the complainant paid the money, and that it was not necessary that the inducement should have been by express words.
8. The question for determination if, whether the facts found in this case constitute an offence of cheating. According to the definition of the term given in Section 415 of the Indian Penal Code, it is essential, in the first place, that the person who delivers property should have been deceived before he makes delivery and, in the second place, that he should have been induced to do so fraudulently or dishonestly. The deception may be by words or by conduct vide Khoda Bux v. Bakeya Mundari 32 C. 941: 9 C.W.N. 1006 : 2 Cr. L.J. 764 and Ramanath Kalapahar v. King-Emperor 2 C.L.J. 524 : 3 Cr. L.J. 160, In this view the learned Deputy Commissioner is perfectly right. As to what is sufficient to constitute deception must be decided in each case on its merits, as held by Woodroffs, J., in the latter case.
9. In the former case, the accused after receiving the mortgage-money handed over to an illiterate messenger of the complainant a bogus unstamped bond instead of the real zarpeshgi deed, and it was held that there was a clear misrepresentation and fraudulent intention.
10. In the latter, the case of the prosecution was that the accused after receipt of the money returned a forged unregistered bond saying that, it was the real bond. Rampini and Mookerji, JJ., differed in their views as to whether this would constitute cheating. The case was referred to Woodroffe, J., who agreed with Rampini, J., and held that the facts, if established, would constitute cheating, but on merits he held that the fasts were not established.
11. These cases do not approach in any way to the facts of the prevent case. Later on, in the case of Kumeda Charan Ghose v. Emperor 15 Ind. Cas. 656: 15 C.L.J. 515 : 13 Cr. L.J. Holmwood and Sharfuddin, JJ., in the circumstances very nearly similar to the present case, held that the offence of cheating was not established, In that case the complainant who was a tenant on bad terms with the accused, his landlord, was sent for by the landlord and was asked to pay rent, and accordingly the rent was paid. The complainant left for home to fetch money requesting the accused and his gomashta to have in the meantime his dues worked out and dakhlas (receipts) written. He returned soon with Rs. 90 and paid the same to the accused who drove him away refusing to give dakhals or return the money until Rs. 25 more was paid by him to make the sum of Rs. 90, the said amount of Rs. 25 having been taken towards swadeshi subscription. It was held that there was no subsequent misrepresentation but only an illegal demand and that the case did not come within the purview of the criminal law. The case of Khoda Bux v. Bakeya Mundari 32 C. 941: 9 C.W.N. 1006 : 2 Cr. L.J. 764 was observed by their Lordships, to have gone so far as the law could possibly be taken in the direction of misrepresentation by conduct and was further distinguished on the ground that there was a positive conduct to show fraudulent intention, namely, the return of a bogus unstamped bond to an illiterate messenger. We have only to substitute the words "kamiati bond" for the word "dakhlas" and the words "homestead parcha" for the words "Rs. 25" and it would at once be obvious that the facts of the case of Kumeda Charan Ghose v. Emperor 15 Ind. Cas. 656: 15 C.L.J. 515 : 13 Cr. L.J. quoted above are exactly similar to the present one. Here the accused took the money inducing the complainant to believe that his kamiati bond would be returned, but instead of returning the same he demanded the homestead parcha which the complainant had obtained from the Settlement Department.
12. As held by the Magistrate, this "homestead" was settled with the complainant out of the accused's holding while accepting the services of the accused. Thus the homestead land originally belonged to the accused and was carved out and settled with the complainant as a part of the agreement entered into by the complainant and as set forth in the kamiati bond for and in consideration of the services of a kamia to be rendered by the complainant to the accused. The complainant paid the money and wanted back the bond in order to dissolve the agreement, which was the object of the transaction which is the subject of the trial in the present case. Although it may not have been stated at the time of negotiation for the return of money and the bond, the return of the homestead land was a natural concomitant of the cessation of the relationship between the parties. The accused could very well demand return of the parcha with respect to the homestead granted by the Settlement Department, on the basis of which the complainant wanted to hold on despite the accused. As held by the Magistrate, the giving of the parcha would certainly have meant a transfer of the land covered by it back to the accused. The fact that the parcha showed that the complainant was recorded as a raiyat in respect of the homestead direct under the malik would not affect the right of the accused to demand the land back which was given to the complainant in lieu of and as a consideration for the services to be rendered as a kamia. In any case, the accused could bona fide believe that he was entitled to have the homestead land and the parcha back from the complainant. In this view the demand for the parcha was not illegal and was at least under a bona fide belief. There is no question of dishonesty in the matter, for the accused received the money and retained it as legally being due under the bond. There was no wrongful gain to himself or wrongful loss to the complainant. There could also be no fraudulent conduct on his part in demanding the parcha from the complainant. He must have known his position with respect to the homestead and the terms upon which he got the land from the accused. He could not possibly have been deceived by the demand of the parcha by the accused when he wanted to sever his connection of eight or nine years with the accused once for all. The complainant was not in any way, deceived by any previous inducement to him by the subsequent demand of the parcha which may not have been told to him at the time that he understood that the money was to be paid and the bond was to be returned, for, as observed above, the return of the parcha, or at least the demand of it, was a necessary sequence of the severance of the connection between the parties. This puts the case much higher than the case of Kumeda Charan Ghose v. Emperor 15 Ind. Cas. 656: 15 C.L.J. 515 : 13 Cr. L.J. The two necessary elements constituting cheating under Section 415 of the Code and as set forth at the outset or this judgment are wanting in the present case. The Courts below have not considered the case from this aspect. To my mind, judging the case on its own merits and circumstances, the accused is not guilty of cheating of which he has been convicted. Far less is he guilty under Section 403, Indian Penal Code, of misappropriation of the money or of the receipt, inasmuch as it was his just due without any tinge of dishonesty in it. Still less would the accused be guilty under Section 383, Indian Penal Code of extortion, for the money was paid by the complainant not in consequence of his having been put in fear of any injury. There was no threat by the accused to dishonestly induce the complainant to return the parcha for the homestead land. I do not agree with the view taken by the learned Deputy Commissioner that if the accused was not guilty of cheating under Section 417 he was at least guilty of misappropriation under Section 403, Indian Penal Code, or extortion under Section 383, Indian Penal Code, I do not also agree with him that the accused could be straight away convicted without any charge under those sections in case the charge of cheating which he was called upon to meet, failed.
13. I have given my best consideration to the case and its circumstances, and I do not think, in the concluding words of Holmwood, J., in the case of Kumeda Charan Ghose v. Emperor 15 Ind. Cas. 656: 15 C.L.J. 515 : 13 Cr. L.J. that the accused comes within the purview of the criminal law.
14. The result is that the conviction of and the sentence passed on the accused are set aside and the petitioner is set at liberty.