Digambar G. Aradhye vs Ashok K. Khanchnalkar . And Anr
2016 Latest Caselaw 562 Bom

                                                    1                    A.482/2000(201)

    mnm

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                        
                   CRIMINAL APPELLATE JURISDICTION




                                                                
                          CRIMINAL APPEAL NO. 482 OF 2000

    Digambar G. Aradhye
    Residing at Hut No.2, Room No.4,




                                                               
    Chembur Children's Home,
    V.N. Purav Marg, Mankhurd
    Mumbai - 400088.                     ...Appellant (Orig.Complainant)
          Vs.




                                                       
    Ashok A. Khanchnalkar
    Residing at C/o. Smt. Anusuya A. Khanchnalkar
                                       
    M.D.C. Home, V.N. Purav Marg, Mankhurd
    Mumbai-400 088.                    ...Respondent No.1(Orig.Accused)
                                      
    The State of Maharashtra                        ...Respondent No.2

    Mr. Deepak Thakare, APP for the State Respondent No.2
    None for the Appellant
          
       



                                          CORAM : MR. S.B. SHUKRE, J.
                                          DATED   : 14TH MARCH, 2016
    JUDGMENT:

1. This is an appeal preferred against the judgment and

order dated 10th November, 1997 passed by the Metropolitan

Magistrate, 12th Court, Bandra, Mumbai in a Criminal Case

No.75/S/97, thereby acquitting the accused of the offence

punishable under Section 420 of the Indian Penal Code.

2 A.482/2000(201)

Briefly stated, facts of the case are as under:

The complainant, Digambar Gopalrao Aradhye came to

be introduced to the accused through the wife of the accused.

In the year 1988, wife of the accused and the complainant

were working in a Children's Home at Chembur. The

complainant was interested in taking one room on rent at

Koparkhairne at New Mumbai and he was promised by the

accused that he would try to get for him one such room. It is

alleged by the complainant that the accused asked for

payment of Rs.8000/- initially in order to enable him to fetch

a suitable room, which could be hired by the complainant.

The amount of Rs.8000/- was paid by the complainant to the

accused on 5th November, 1988 and thereafter, the

complainant paid an amount of Rs.10,000/- more to the

accused. The accused, however, did not fulfill his promise

and did not make any arrangement for making available the

room to be taken on rent by the complainant. One letter was

issued to him by the complainant, but in vain. Several

requests were made to the accused by the complainant in that

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regard, which also were not looked into by the accused.

Ultimately, the complainant filed a complaint case against the

accused for initiating criminal case against him for an offence

of cheating punishable under Section 420 of the Indian Penal

Code.

A verification statement of the complainant was

recorded. Upon finding that there were grounds to believe

that the allegations made against the accused were genuine

and indicated prima facie commission of the offence, the

learned Magistrate framed charge against the accused for the

offence punishable under Section 420 of the Indian Penal

Code. The accused pleaded not guilty to the the same and

came to be tried. Accordingly trial of the accused for an

offence punishable under Section 420 of the Indian Penal

Code proceeded in accordance with law. After considering

the evidence available on record and arguments of both the

sides, the learned Magistrate found that the complainant

failed to prove the offence punishable under Section 420 of

the Indian Penal Code and thus acquitted him of the same by

4 A.482/2000(201)

his judgment and order passed on 10th November, 1997. Not

being satisfied with the same, the complainant / appellant has

preferred the present appeal after seeking leave of the Court.

2. This is an old appeal filed in the year 2000 and is

pending for final disposal for long period of time. The record

shows that on the last occasion ie., 29th July, 2015 nobody

was present on behalf of the appellant although learned

Counsel for the respondent No.1 accused and the learned APP

for the respondent No.2 state were present. The appeal was,

therefore, adjourned to the next date ie. 12th August, 2015. It

appears that on that date, this appeal did not come up for

final hearing. Now, this appeal has been listed on board for

final hearing for this day of 14th March, 2016. Today, again

nobody is present on behalf of the appellant. Hearing of the

appellant, as per the mandate of Section 386 of the Code of

Criminal Procedure, would be necessary, if the appellant

remains present. The appellant, however, inspite of being

granted reasonable opportunity to present his case before this

Court, has not remained present. Therefore, in view of the

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provision of Section 386 of the Code of Criminal Procedure,

and the fact that this appeal is very old, this Court has

decided to proceed in the matter after hearing the Counsel or

the parties who are present before the Court and also

considering the record of the case.

3. None for the respondent No.1. Learned A.P.P for the

respondent No.2 is present. I have heard him. I have gone

through the record of the case including the impugned

judgment and order. The learned APP for the respondent

No.2 submits that an appropriate order be passed in the

matter.

4. It is seen from the impugned judgment and order that

the learned Magistrate has found this case to be a case of no

evidence so far as concerned the material fact that the

accused nurtured intention to cheat the complainant since the

beginning of the transaction of payment of money by the

complainant to the accused as a consideration for fetching

one room on rent for the complainant. The learned

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Magistrate has found that there was a doubt about the

accused himself making the promise for getting a room for

the complainant to be taken on rent as the wife of the

accused, D.W. No.1 Smt. Anusuya in her evidence said that

the amounts in question were received by one Gholap and

Chaudhary. The learned Magistrate further found that

although a letter was sent by the complainant to the accused

on 9th November, 1989 after paying the 2nd installment of

Rs.10,000/- by cheque calling upon the accused to perform

his promise, and that there was no response to such a letter

from the accused, the complainant chose to remain silent for

a period of about two years and it was on 19th January, 1992

that a complaint came to be filed by him, for which no

satisfactory explanation has been given by the complainat.

5. Upon going through the evidence of the prosecution

witness P.W. No.1 Digambar (complainant) and also the

defence evidence of D.W. No.1 Smt. Anusuya, I find that the

conclusion so drawn by the learned Magistrate cannot be said

to be perverse or arbitrary or representing an impossible view.

7 A.482/2000(201)

The evidence of P.W. No.1 Digambar does not establish the

essential ingredient of the offence of cheating in the sense

that no circumstances are appearing in his entire testimony

from which one could infer that the accused made a false

promise, which he knew to be false when he allegedly

accepted the amount of Rs.8000/- paid to him by cheque

from the complainant as a consideration for the accused

arranging for one room for the complainant that was to be

taken on rent. It appears that the room was to be actually

arranged by Gholap and Chaudhary and some transaction

also took place between the complainant and said two

persons. If this was so, the learned Magistrate was right

when he found that there was a doubt about the transaction

taking place between the complainant and the accused, as

alleged by the complainant and even if it was there, the

intention to cheat right from inception of the transaction was

not visible. That apart, no explanation for the delay occurred

in filing of a criminal complaint against the accused has been

given by the complainant. A cumulative effect of these facts

and circumstances appearing on record would be that the

8 A.482/2000(201)

appellant failed to establish the guilt of the accused for an

offence punishable under Section 420 of the Indian Penal

Code, with which he has been charged in this case. No

interference, therefore, is warranted in the impugned

judgment and order.

6. The Appeal stands dismissed.

(S.B. SHUKRE, J.)