Patna High Court
Hare Krishan Sahay vs State Of Bihar on 5 June, 1980
Equivalent citations: 1981(29)BLJR488
JUDGMENT Uday Sinha, J.
1. This is an application under Section 482 of the Code of Criminal Procedure for quashing the prosecution of the petitioner under Sections 406, 409 and 420 of the Indian Penal Code, cognizance of which was taken by the Chief Judicial Magistrate, Muzaffarpur by order dated 7-11-1979 which is now pending in the Court of Sri R.P. Ram, Judicial Magistrate, First class, Muzaffarpur.
2. The State Government launched a programme of holding lottery. In pursuance of the scheme of lottery, District Lottery Officers were appointed, camp offices for the sale of lottery tickets were opened outside this state as well. Some of the camps, involved in this proceeding, were at Delhi, Hyderabad and Bombay. For bulk purchases of lottery tickets the scheme envisaged a rebate of 20% of the price of tickets. Each ticket was of the value of Rs. 1/-. The scheme also envisaged that out of the winning of the tickets the agent who had sold the ticket was to be entitled to bonus which was a fixed percentage of the winning. The petitioner was one such agent. He purchased in bulk from the camp at Hyderabad. The petitioner purchased tickets of the value of Rs. 3,54,000/- for the 57th draw of the lottery. The sales commenced on 7-4-1975. The draw was held on 15-6-1975. The petitioner paid the price of these tickets by seven cheques, the total amount of which after giving deduction of 20% in terms of the scheme, the petitioner was liable to pay Rs. 2,68,000/-. The cheques were presented by the District Lottery Officer to the Bank but they are all dishonoured as there was insignificant amount of money in the account. After great chasing some dues were adjusted against the claims of the petitioner. But a sum of Rs. 85,900/- remained unpaid. The petitioner purchased tickets for the 62nd draw worth Rs. 60,000/- for which the petitioner was liable to pay Rs. 45,000/-. He gave cheques of this value but this cheque also was dishonoured and the entire sum remained unpaid. The petitioner took no step to show his bona fides that he intended to pay. For the 63rd draw the petitioner purchased tickets worth Rs. 30.000/- for which he was liable to pay Rs. 22,800. The cheque for this amount also was not honoured. Thus a total sum of Rs. 1,54,300/- was not paid for the three draws by the petitioner. Despite chasing and coaxing, three sums remained unpaid. The District Lottery Officer finding that he had been cheated by the petitioner, lodged a first information report at Kazi Mohammadpur police station in the town of Muzaffarpur which was numbered as case No. 79(9) 76. After investigation the police submitted charge-sheet for prosecution of the petitioner under Sections 420, 409 and 406 of the Indian Penal Code. The learned Chief Judicial Magistrate, Muzaffarpur, took cognizance of the offence and transferred the case to Sri R.P. Ram for disposal. It would be useful to state here that the petitioner behaved similarly with several district lottery officers for which several other cases were submitted in which separate charge-sheets have been submitted. The total sum, alleged to be due from the petitioner is about rupees thirty lakhs.
3. Learned Counsel for the petitioner submitted that upon the facts alleged by the District Lottery Officer and as found by the police, no offence had been made out against the petitioner. According to learned Counsel for the petitioner, the case was merely one of breach of contract and not of cheating nor of criminal breach of trust. According to learned Counsel for the petitioner, in absence of any assertion by the District Lottery Officer that the tickets had been sold to the petitioner on any inducement which was found to be false, the petitioner had not indulged in any fraudulent mis-representation of facts and, therefore, no cheating had been committed by the petitioner. The petitioner secondly submitted that there was nothing to indicate that the petitioner had no intention to pay at the outset for the tickets sold to him and, therefore, the prosecution of the petitioner for cheating the District Lottery Officer, Muzaffarpur, was misconceived and erroneous in law. Lastly it was submitted that no case of criminal breach of trust had been made out as where had been no entrustment of tickets with the petitioner. The tickets on the own showing of the prosecution had been sold to the petitioner. They thus became his property and could not be said to have been entrusted with the petitioner. Upon that basis it was submitted that no offence under Sections 406 or 409 of the Indian Penal Code has been made out even prima facie .
4. At the outset it should be mentioned that before the tickets were sold to the petitioner as agreement to sell tickets to him by the District Lottery Officer was executed by the petitioner. Even so learned standing counsel for the state conceded that the case standing counsel for the State conceded that the case was not of agency but was a case of outright sale of tickets and in that view of the matter, the charge under Section 406 or 409 of the Indian Penal Code could not be levelled against the petitioner. He, however, submitted that the facts, prima facie , show that the petitioner was liable to be tried for the offence of cheating punishable under Section 420 of the Indian Penal Code.
5. Learned standing counsel opposing the application conceded that in the first information report it had not been stated specifically that the tickets had been sold to the petitioner on the representation that the cheques would be encashed and that there was no question of their dishnoured. But the first informant has stated, during investigation, that the tickets had been sold to the petitioner on his representation that there was fund in the Bank and that there was no question of the cheques being dishonoured. Since the statement of the District Lottery Officer, during investigation, show that the tickets had been sold on the representation of the petitioner it cannot be said that the District Lottery Officer was not induced to sell the tickets to the petitioner on any inducement based on facts which were not true. The tangible material in the case diary shows that the District Lottery Officer was induced to part with the tickets on the inducement of the petitioner. The inducement was in the form of availability of the funds in the Bank. If that inducement had not been there the tickets would not have been sold to the petitioner. It is, therefore, difficult to accept the submission of the learned Counsel for the petitioner that there was no inducement by the petitioner to the first informant. Learned standing counsel showed to me from the case diary that on 11-4-1975 the petitioner issued two cheques for Rs. 68, 560/- When he had only Rs. 4,618/- in his account. On 8-11-8975 the petitioner issued cheques of Rs. 45,600/-when he had only Rs 1,419/- in his account. I shall deal with the effect of issuing cheques later but at the moment, suffice it to say, there was yawning gap between the amount in the account and the value for which cheques had been issued. Learned Counsel for petitioner drew my attention to the averment in the first information report where it has been stated that Hare Krishna Sahay, the petitioner, stated "Laatri ticket ki udhari Kharidgi kee aur unhe kharidaaron ke haath becha tatha pichohe mulya ka anshik bhugtan kuchch nagad draft avom cheque ke roop mein kiya." From these statements, learned Counsel for the petitioner contended that the sale of tickets were sales on credit and not outright sale for value payable instantly. The expression "Udhari kharidgi" does give the impression that the purchases were on credit. A deeper analysis, however, shows that it is not possible to hold definitely that the sales were credit sales. The first information report was lodged over a year after the incidents and at the time the tickets were delivered to the petitioner nothing had been paid. Only some cheques had been delivered. In that sense the District Lottery Officer may have used the expression credit sales. According to the system prevalent in the lottery offices of the State the cheques used to be sent for collection after the draw. Thus, the expression "udhari Kharidgi" was not very appropriate but it cannot show that the State Government had sold tickets to the petitioner on credit. Further, according to the system of functioning the cheques were to be sent for collection after the draw and thus for the time being the sales may have been loosely stated at credit sales.
6. The submission that the petitioner had paid certain amounts later was not indicative of any mens-rea in the petitioner is also of no significance. That fact that the State Government was able to chase the petitioner and realise some amount cannot deviate from the fact that the petitioner did not intend to pay or at least wanted to take advantage of the time by which he would be able to pay for them. The diligence of the District Lottery Officer in chasing the petitioner cannot minimise the criminal liability of the petitioner. If he did not intend the price to be paid on the day the cheques were issued it is not very difficult to conclude that the petitioner at the outset did not intend to pay for them. Even by delaying payment of certain amounts the petitioner gained wrongfully and the State Government lost to which it was not liable. Action of the petitioner, therefore, in buying the tickets on the payment and representation through the cheques shows, clearly, that he did not intend to pay and, therefore, it was a dishonest act. In fact a very small sum as paid by the petitioner. The bulk of the dues were adjustments of sums which the Government owed. The petitioner was, thus, actuated by dishonest motives in delivering the sale price.
7. In regard to the 62nd Draw nothing has been paid up till this day. The cheques were dishonoured and the petitioner did nothing to show his bona fides. There has been outright wrongful gain to the petitioner. Mens-rea is essentially a question of fact. Whether the petitioner had the intention to pay for the tickets at the time he bought them or not will depend upon all the surrounding circumstances, There was no attempt by the petitioner to wipe out the liabilities specially the sums payable by him for the cheques delivered in connection with the 62nd and 63rd draws. Merely, upon the fact that payments were by cheques the presence of intention to gain wrongfully cannot be ruled out. In my view, therefore, this is not a clear case in wnich it can be said that there was no intention on the part of the petitioner to gain wrongfully.
8. Learned Counsel for the petitioner also submitted that the whole case was one of accounting. The State Government owed something to the petitioner and the petitioner owed some amount to the State. Therefore, until accounts were taken and balance struck, it could not be said that the petitioner had acted dishonestly by not having paid full value. Learned standing counsel strongly refuted this assertion. He submitted that no amount was due to the petitioner from the State Government and that every pie which was due to the petitioner had been paid. Learned standing counsel also submitted that guilty intention of the petitioner to cheat the State was obvious from the fact that Rs. 2,45,481/- was paid to the petitioner on 7th July, 1975 but no action was taken by the petitioner to show that he intended to pay for the tickets from this stand, learned standing counsel submitted that this clearly shows that the petitioner had no intention at any point of time to pay to the State Government. In my view, the cheques were delivered to the District Lottery Officer only to lull him into confidence. Learned standing counsel also showed from the case diary that the petitioner had several accounts with the State Bank of India at Patarbar in the district of Giridih. They were first, in his own name, secondly in an account jointly with his wife, thirdly in an account jointly with his minor son and fourthly with an account known as Sahay Constructions. Learned standing counsel showed from the case diary that in some cases while the cheques were of his own account the account number mentioned on the cheques by the petitioner were of some other account. He has also relied upon the circumstance that whereas at relevant times the petitioner had large sums in his account jointly with his wife he did not issue cheque on that account but issued it on an account which had very paltry sum. On all these circumstances learned standing counsel submitted that the reasonable inference flowing from the circumstances collected during investigation, would be that the petitioner at the time of buying the tickets did not have the intention to pay or at least to see that the sums were paid after considerable delay. The submission urged on behalf of the State cannot be brushed aside lightly. It must also be conceded that the submission urged on behalf of the petitioner also are worthy of consideration. They also cannot be lightly brushed aside. The cumulative effect of the various circumstances pros and con will indicate the intention of the petitioner. Having heard the learned Counsels for the parties, I am of the view that there are several aspects of the matter which need to be thrashed out by a Court of facts. The main question at the trial would be as to intention of the petitioner at the time he bought the tickets. That is a question of fact. T would not hazard to give my own findings on those aspects of the matter. Learned Counsel for the petitioner advanced some other arguments as well but I do not propose to deal with them as any finding by me may prejudice the trial.
9. Learned Counsel for the petitioner submitted that the delivery of tickets and the fact of the cheques being dishonoured cannot show that there was want to intention of pay. He placed reliance upon decision in Bindeshari Singh v. Sheo Sohan Singh and Anr. 1954 B.L.J.R. 77. for the above proposition. That was a case of a post dated cheque. It is true that Banerji, J., observed in that case that what is true of post dated cheque is true of current cheque as well. I regret I have some difficulty in accepting this position. A post dated cheque by its very nature shows that there is no money in account in presenti. In Manmohan Chaudhuri v. Turner Morrison and Co. I.L.R. 1957/76 Cal. 443. A Division Bench of the Calcutta High Court took the view that the position is different when a post dated cheque is handed over to any person from that when a current cheque is delivered. A similar view has been taken in Shanti Lal v. State 1956 M.B. 19., Cantonment Board, Muttra v. Kishan Lal I.L.R. 1957 Alld. 246.
10. Learned Counsel for the petitioner brought to my notice decision of this Court given by Shamsul Hasan, J. in Har Krishan Sahay v. State of Bihar 1980 B.B.C.J. 156. where the prosecution of the petitioner was quashed by this Court. The facts in that case appear to be identical. He, therefore, submitted that this case being identical to the other case against the petitioner this prosecution also should be quashed. I regret Shamsul Hasan, J., decided that case on a different act of facts. In paragraph 6 his Lordship stated which was the only reason for quashing the prosecution, that in the first information report it had not been specifically stated as to how and to whom the fraudulent and dishonest representation had been made. His Lordships attention was not drawn by the counsel for the State in that case to the materials in the case diary. The result of a case cannot depend upon the finess in drafting. In this case, the District Lottery Officer has categorically stated in his statement before the police that the petitioner made fraudulent and dishonest representation to him. In my view, therefore, the instant case is distinguishable on facts from the case decided by Shamsul Hasan, 1., in which case also the petitioner was prosecuted on identical charges.
11. There is a mass of materials-collected against the petitioner during investigation. I, therefore, do not consider it a fit case for quashing the prosecution of the petitioner. It is essential that the matter be thrashed in Court to arrive at the correct conclusion in regard to questions of fact, It cannot be held that no case had been made out against the petitioner. It would be rash to quash the prosecution upon superficial aspect of the case.
12. For all the reasons, stated above, I do not consider it to be a fit case for quashing the prosecution of the petitioner. The application is accordingly, dismissed.