Madhya Pradesh High Court
Virendra Singh Patel vs The State Of Madhya Pradesh on 7 January, 2019
Cr. R. 4192/2018.
(1)
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
(SB: Hon'ble Shri Justice Rajendra Kumar Srivastava)
Cr.R. No. 4192/2018.
Virendra Singh Patel.
Versus
State of Madhya Pradesh.
Shri Arvind Kumar Shrivastava, learned counsel for petitioner.
Shri Ashutosh Tiwari, learned G.A. for respondent-State.
Whether approved for reporting: Yes/No. Law laid down:
Significant paragraphs:
-O R D E R-
(07/01/2019) Petitioner-accused has filed this criminal revision under Section 397/401 of Criminal Procedure Code against the order dated 05/07/2018 passed by the First Additional Sessions Judge, Shahdol, in Sessions Trial No. 226/2011 whereby learned Judge framed the charge against the petitioner-accused under Section 420 of IPC.
2. Prosecution story in brief is that father of the petitioner- accused was owner of land Khasra No. 1677/5/17 area 0/014 hec. situated at Village Barachh, P.S. Beohari, District Shahdol. Co-accused Indrabhan entered into an agreement on 31/11/2006 with complainants Prakash Gautam and Sharmila Cr. R. 4192/2018.
(2)Gautam and received Rs. 70,000/- as advance amount but later on Indrabhan breached the agreement and entered into another agreement on 27/07/2009 with Tejpal Singh for the same property having Khasra No. 1677/5/17 area 0/014 hec. situated at Village Barachh, P.S. Beohari, District Shahdol, then complainants Prakash Gautam and Smt. Sharmila Gautam filed a complaint before Superintendent of Police, Shahdol. Matter was inquired, FIR was registered, it is found that petitioner- accused is a witness of second agreement dated 27/07/2009 and Patwari prepared a Panchanama on 13/02/2008. Petitioner- accused was mentioned as a witness in this Panchanama. The charge-sheet has been filed against the petitioner-accused also. Learned trial court framed the charge against the petitioner- accused under Section 420 of IPC.
3. According to the petitioner-accused the learned court below has completely overlooked as to the role played by the present petitioner for commission of the said offence. The allegations made in the complaint even if they are taken at their face value and accepted in their entirety, do not prima- facie constitute any offence or make out a case against the present petitioner-accused. There is no material against the petitioner-accused. Petitioner-accused has been made accused only on the basis of being witness in the agreement created by the party and the court below without seeing the actual fact of Cr. R. 4192/2018.
(3)the case held that there is sufficient material to frame the charge. In panchanama prepared by Patwari on 13/02/2008, petitioner's signature is there, it can be seen with bare eyes that the patwari has entered last three lines mentioning the purpose of preparing panchanama. At the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging thereon are taken at their face value, all the ingredients constituting alleged offence are satisfied, but in the present case, there is no material constituting the aforesaid offence against the present petitioner-accused. There is no material on record so as to indicate that the petitioner-accused was involved in commission of the aforesaid offence so set- aside the impugned order may be set-aside. FIR was registered under Sections 467, 468 and 420 of IPC and the case has been committed to the Court of Session who quashed the charge under Section 467 and 468 of IPC and framed the charge under 420 of IPC and remanded back the case to the Court of JMFC for trial.
4. Heard both the parties and perused the record.
5. It is not disputed that co-accused Indrabhan was the owner of disputed land Khasra No. 1677/5/17 area 0/014 hec. situated at Village Barachh, P.S. Beohari, District Shahdol. It is also evident from the record that co-accused Indrabhan Patel Cr. R. 4192/2018.
(4)entered into an agreement on 31/11/2006 with complainants Prakash Gautam and Sharmila Gautam to sell the aforesaid land for a consideration of Rs. 3,00,000/- and received Rs. 70,000/- as an advance amount but later on 27/07/2009 Indrabhan breached agreement and entered into another agreement with Tejpal Singh for the same property having Khasra No. 1677/5/17 area 0/014 hec. situated at Village Barachh, P.S. Beohari, District Shahdol. In this regard we will see the definition of cheating :-
Sec. 415 of IPC; 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". Section 420 in The Indian Penal Code:
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.
6. It is evident from the above section that it is necessary for cheating that the person is induced to deliver the property on the basis of fraudulently or dishonestly actions. In the present case, during the investigation statements of Prakash Cr. R. 4192/2018.
(5)Gautam and Smt. Sharmila Gautam have been recorded. These witnesses did not depose any fact against the petitioner- accused. They deposed against co-accused Indrabhan Patel. Co-accused Indrabhan Patel, entered into an agreement with the complainants to sell his property on the consideration of Rs. 3,00,000/- and co-accused Indrabhan only received Rs. 70,000/- in advance. Prakash Gautam and Sharmila Gautam produced a copy of agreement during investigation. It is evident from this agreement that petitioner-accused did not enter into an agreement with these complainants and did not receive any money from these complainants. It is evident from the record that petitioner-accused is not the party and not a witness of agreement dated 31/11/2006. So far as the question of Section 420 of IPC is concerned, it is evident that no fraudulent and dishonest inducement initially existed. In this regard Hon'ble Apex Court in the case of Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another 2000 (4) SCC 168 has held as under:-
14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do.
in the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
Cr. R. 4192/2018.
(6)
15. 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 to inducement which may be judged by his subsequent conduct but for this subsequent 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. "
7. In view of the above discussion, it appears that there is no material on record against the petitioner-accused, if petitioner-accused is a witness in later agreement dated 27/07/2009 and thereafter witness of Panchanama dated 13/02/2008, that fact is not sufficient to allege the offence under Section 420 of IPC. Moreover, in the complaint, complainants have not stated that petitioner-accused did anything to induce them fraudulently or dishonestly to deliver any property. Neither the complainants have mentioned anything to the effect that they did/ omitted to do anything on being deceived by petitioner-accused. At the time of framing charge learned trial judge must be considered all the facts of the case and ingredients of that section. Hon'ble Apex Court in the case of Union of India Vs. Prafulla Kumar Samal and Cr. R. 4192/2018.(7)
another AIR 1979 SC 366 has held as under:-
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
So it is evident that no case is made out under Section 420 of IPC against this petitioner-accused. On these grounds the petitioner accused cannot be implicated as an accused under Section 420 of IPC.
8. Accordingly, this criminal revision is allowed. The order Cr. R. 4192/2018.
(8)dated 05/07/2018 passed by the First Additional Sessions Judge, Shahdol, in Sessions Trial No. 226/2011 whereby learned Judge framed the charge against the petitioner-accused under Section 420 of IPC is hereby set-aside.
Record of the Sessions Court be sent back along with copy of this order.
(RAJENDRA KUMAR SRIVASTAVA) JUDGE MISHRA