Gauhati High Court
Crl.L.P./62/2016 on 2 April, 2025
GAHC010206502016
2025:GAU-AS:4394
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL LEAVE PETITION NO.62/2016
M/S Ganpati Enterprises,
Represented by its Manager
Sri Arvind Mour, presently situated
at 13, Kayal Market
T.R. Phookan Road, Fancy Bazar,
Guwahati-01, Kamrup(M), Assam
.......Petitioner
-Versus-
1. Sri Hardhan Chandra Saha,
C/o- M/S Hardhan Ch. Saha,
Netaji Subash Road,
Agartala-799001.
2. The State of Assam,
Represented by Public Prosecutor.
.......Respondents
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) :Mr. Y. Kothari , Advocate.
Page 1 of 27
For the Respondent(s) :Mr. S. Bharali, learned counsel
for the respondent No.1.
:Mr. P.S. Lahkar, learned Additional
Public Prosecutor for the State
respondent.
Date of Hearing :02.04.2025.
Date of Judgment :02.04.2025.
JUDGMENT & ORDER (ORAL)
Heard Mr. Y. Kothari, learned counsel appearing
for the petitioner. Also heard Mr. S. Bharali, learned
counsel appearing for the respondent No. 1 and Mr. P.S.
Lahkar, learned Additional Public Prosecutor appearing for
the State respondent.
2. This is an application under Section 378(3) and
Section 378(4) of the Cr.P.C. seeking leave to file appeal
against the impugned judgment and order dated
16.05.2016 passed by the Court of Judicial Magistrate First
Class, Kamrup (M), Guwahati (hereinafter referred to as
the trial Court) whereby the accused/respondent No.1 was
acquitted under Section 420 and 506 of IPC.
3. The brief facts of the case is that the
petitioner/complainant firm had filed a complaint case
before the trial Court under Sections
420/403/422/424/42/506 of the IPC against the
accused/respondent No. 1 stating, inter-alia, that on
20.05.2004, the accused/respondent No.1 accompanied by
one person namely Sarvan Beniwal, who was a broker, had
approached the Manager of the petitioner/complainant firm
and expressed his intention to do regular business with the
complainant by purchasing goods on wholesale basis and
promised to pay the price of the goods within a fortnight
on receipt of such goods. It was further alleged that on
such assurance, the petitioner/complainant firm delivered
850 (Eight Hundred and Fifty) bags of sugar to the
accused/respondent No.1 on 20.05.2004 and that the
same were loaded in two trucks and dispatched to the
accused/respondent No.1 and that the value of the sugar
supplied by the petitioner/complainant firm along with the
insurance charge thereon was about Rs.7,13,879 (Seven
Lakhs Thirteen Thousand Eight Hundred and Seventy Nine
Rupees). In support of that, two bills being numbered 90
and 91 were also annexed which were exhibited as exhibit
1 and 2. It is further alleged that after receipt of the
goods, the accused/respondent No.1 neither came to the
petitioner/complainant firm nor made any contact with
them and that several attempts were made on various
occasions by the petitioner/complainant firm regarding
payment against the said supply but the
accused/respondent No.1 deliberately and intentionally
avoided making any contact with the
petitioner/complainant firm just to escape from the lawful
dues he owed to the complainant firm. It was further
alleged that the petitioner/complainant firm firm even sent
one of its representatives to Agartala to meet the
accused/respondent no.1 concerning the transaction but to
his utter surprise, he found that the accused/respondent
No.1 had removed the signboard of his shop from his point
of business. It was further alleged that the representative
somehow managed to trace out the accused/respondent
No.1 on 19.09.2005 but the accused/respondent No.1
straightway refused to make any payment and threatened
the representative of the petitioner/complainant firm with
dire consequences. Hence, finding no other alternative, the
petitioner/complainant firm instituted a complaint case
against the accused/respondent No.1.
4. Thereafter, the said complaint case was
registered as C.R. Case No. 6220/2005 before the trial
Court. The trial Court examined the petitioner/complainant
firm under Section 200 of Cr.P.C and upon finding
sufficient materials to proceed against the
accused/respondent No.1, took cognizance under Section
403/420/506 of IPC and issued process against the
accused/respondent No.1. Accordingly, the
accused/respondent No. 1 entered appearance and the
trial commenced. Thereafter, the trial Court framed charge
under Sections 403/420/506 of IPC against the
accused/respondent No.1
5. After framing of the charge, the respondent No.1
claimed to be tried and the accused/respondent No.1
adduced prosecution witnesses thereafter, statement of
defence under Section 313 of Code of Criminal Procedure
was recorded by the trial Court and accused/respondent
No.1 expressed his willingness to adduce defense witness
and the accused/respondent No.1 examined himself as
defense witness and was cross examined by the
prosecution.
6. After hearing the evidences and conclusion of the
trial, the trial Court acquitted the accused/respondent No.1
from the charge under Sections 420 and 506 of IPC and
convicted the accused/respondent No.1 under Section 403
with a fine of Rs. 5,000/- in default to undergo to simple
imprisonment for 6 (six) months.
7. Situated thus, the present criminal leave petition
has been filed by the petitioner/complainant firm seeking
leave to file appeal against the said acquittal order.
8. Mr. Y. Kothari, learned counsel appearing for the
petitioner/complainant firm submits that judgment and
order of the trial Court acquitting the accused/respondent
No.1 from the charges under Section 420 and 506 of IPC is
manifestly erroneous. He further submits that the trial
Court has failed to appreciate the evidences in its proper
perspective especially to the fact that the
accused/respondent No.1 has removed the signboard of
the shop later on. He further submits that the receipt of
the goods in question, non-payment of the same and the
removal of the signboard having been clearly proved, the
offences under Sections 420 and 506 of IPC are clearly
made out and hence the judgment of the trial Court
acquitting the accused/respondent No.1 from the aforesaid
charges is palpably erroneous.
9. Per contra, Mr. S. Bharali, learned counsel
appearing for the accused/respondent No.1 submits that
the trial Court after appreciating the evidence on record in
its correct perspective has held the accused/respondent
No.1 not guilty of charge under Sections 420 and 506 of
IPC.
10. He further submits that the evidence on record
clearly indicates that the trial Court has taken a probable
view on the basis of such evidence and hence there is no
merit in the criminal leave petition filed by the
petitioner/complainant firm.
11. I have heard the arguments made by the learned
counsel appearing for the contending parties and perused
the material available on record.
12. This being an appeal against acquittal, apt at the
outset to refer to Section 378 of Cr.P.C., which is
reproduced hereunder for ready reference:-
"378. Appeal in case of acquittal.-[(1) Save as
otherwise provided in sub-section (2), and subject
to the provisions of sub-sections (3) and (5),
(a) the District Magistrate may, in any case,
direct the Public Prosecutor to present an
appeal to the Court of Session from an order
of acquittal passed by a Magistrate in
respect of a cognizable and non-bailable
offence;
(b) the State Government may, in any case,
direct the Public Prosecutor to present an
appeal to the High Court from an original or
appellate order of an acquittal passed by
any Court other than a High Court [not
being an order under clause (a)] or an order
of acquittal passed by the Court of Session
in revision.]
(2) If such an order of acquittal is passed in any
case in which the offence has been investigated by
the Delhi Special Police Establishment constituted
under the Delhi Special Police Establishment Act,
1946 (25 of 1946) or by any other agency
empowered to make investigation into an offence
under any Central Act other than this Code, [the
Central Government may, subject to the provisions
of sub-section (3), also direct the Public Prosecutor
to present an appeal-
(a) to the Court of Session, from an order of
acquittal passed by a Magistrate in respect
of a cognizable and non-bailable offence;
(b) to the High Court from an original or
appellate order of an acquittal passed by
any Court other than a High Court [not
being an order under clause (a)] or an order
of acquittal passed by the Court of Session
in revision.]
(3) [No appeal to the High Court] under sub-section
(1) or sub-section (2) shall be entertained except
with the leave of the High Court.
(4) If such an order of acquittal is passed in any
case instituted upon complaint and the High Court,
on an application made to it by the complainant in
this behalf, grants special leave to appeal from the
order of acquittal, the complainant may present
such an appeal to the High Court.
(5) No application under sub-section (4) for the
grant of special leave to appeal from an order of
acquittal shall be entertained by the High Court
after the expiry of six months, where the
complainant is a public servant, and sixty days in
every other case, computed from the date of that
order of acquittal.
(6) If, in any case, the application under sub-
section (4) for the grant of special leave to appeal
from an order of acquittal is refused, no appeal
from that order of acquittal shall lie under sub-
section (1) or under sub-section (2)."
13. In order to maintain an appeal in case of acquittal
before the High Court, such appeal has to be preceded
with an application seeking leave to appeal. Thus, unless
the High Court grants leave, no appeal against acquittal
can be entertained. The parameters for consideration of
grant of leave or refusal for appeal against acquittal has
been laid down by the Apex Court in a catena of decisions.
Reference is made to the decision of the Apex Court in the
case of State of Maharashtra Vs. Sujay Mangesh
Poyarekar reported in 2008 9 SCC 475. Paragraphs 20
21, 22, 23 and 24 of the aforesaid judgment is reproduced
hereunder for ready reference:
"20. In our opinion, however, in deciding the
question whether requisite leave should or should
not be granted, the High Court must apply its mind,
consider whether a prima facie case has been
made out or arguable points have been raised and
not whether the order of acquittal would or would
not be set aside.
21. It cannot be laid down as an abstract
proposition of law of universal application that
each and every petition seeking leave to prefer an
appeal against an order of acquittal recorded by a
trial court must be allowed by the appellate court
and every appeal must be admitted and decided
on merits. But it also cannot be overlooked that at
that stage, the court would not enter into minute
details of the prosecution evidence and refuse
leave observing that the judgment of acquittal
recorded by the trial court could not be said to be
"perverse" and, hence, no leave should be granted.
22. In Sita Ram v. State of U.P. this Court held that:
(SCC p. 669, para 31)
'31.... A single right of appeal is more or less
a universal requirement of the guarantee of
life and liberty rooted in the [concept] that
men are fallible, that Judges are men and
that making assurance doubly sure, before
irrevocable deprivation of life or liberty comes
to pass, a full-scale re-examination of the
facts and the law is made an integral part of
fundamental fairness or procedure.'
We are aware and mindful that the above
observations were made in connection with an
appeal at the instance of the accused. But the
principle underlying the above rule lies in the
doctrine of human fallibility that "Men are fallible"
and "Judges are also men". It is keeping in view
the said object that the principle has to be
understood and applied.
23. Now, every crime is considered as an offence
against the society as a whole and not only
against an individual even though it is an
individual who is the ultimate sufferer. It is,
therefore, the duty of the State to take appropriate
steps when an offence has been committed.
24. We may hasten to clarify that we may not be
understood to have laid down an inviolable rule
that no leave should be refused by the appellate
court against an order of acquittal recorded by the
trial court. We only state that in such cases, the
appellate court must consider the relevant material,
sworn testimonies of prosecution witnesses and
record reasons why leave sought by the State
should not be granted and the order of acquittal
recorded by the trial court should not be disturbed.
Where there is application of mind by the appellate
court and reasons (may be in brief) in support of
such view are recorded, the order of the court may
not be said to be illegal or objectionable. At the
same time, however, if arguable points have been
raised, if the material on record discloses deeper
scrutiny and reappreciation, review or
reconsideration of evidence, the appellate court
must grant leave as sought and decide the appeal
on merits. In the case on hand, the High Court,
with respect, did neither. In the opinion of the High
Court, the case did not require grant of leave. But it
also failed to record reasons for refusal of such
leave."
14. What transpires from the above, is that at the
time of deciding the question as whether leave ought or
ought not be granted, the High Court must apply its mind,
consider whether a prima-facie case has been made out or
not, whether arguable points have been raised or not and
whether the order of acquittal would or would not be set
aside. Keeping the aforesaid principle in mind, let me now
look into the facts and circumstances to determine whether
the leave sought for in this petition is liable to be granted
or not.
15. It appears that the prosecution adduced 4
prosecution witnesses whereas defence examined 1
defence witness apart from explaining the incriminating
circumstances during his 313 of Cr.P.C. examination. It
further appears from the evidence of P.W.1 that on
20.05.2004, the accused/respondent No.1 accompanied by
a broker approached the petitioner/complainant firm and
introduced himself to be a big businessman from Agartala.
It further appears that the accused/respondent No.1
expressed his intention to purchase sugar on credit and
promised to pay the consideration amount within a
fortnight. It further appears that on such assurance, 850
bags of sugar were loaded into two trucks and dispatched
to the accused/respondent No.1 amounting to Rs. 7,13,879
(Seven Lakhs Thirteen Thousand Eight Hundred and
Seventy Nine Rupees).
16. It appears that the two bills were accordingly
exhibited by P.W. 1 in connection with the said sale. It
appears that P.W. 1 further deposed that after receipt of
the sugar, the accused/respondent No.1 neither came to
their shop for payment nor did he contact them and that
after several attempts, when one of his staff i.e. P.W.2 had
gone to Agartala to collect the payment, he could not find
the accused/respondent No.1 nor could he find the shop of
the accused/respondent No.1 at the given address. It
further comes out from the evidence of P.W. 1 that upon
enquiry it was found that the shop used to be there but
after receiving the sugar, the accused/respondent No.1 has
shut down the shop and removed the signboard.
17. It appears from the evidence of P.W. 2 that he
corroborated the testimony of P.W.1 to the effect that the
accused/respondent No.1 had visited their shop in 2004
along with one broker and took 850 bags of sugar,
however, did not pay the value of the sugar and that when
he visited the shop of the accused/respondent No.1 at
Agartala, he was not found there and also the signboard
was removed. It further appears from the evidence of
P.W.3 that he corroborated the testimony of P.W.1 and
P.W.2 to the effect that the accused/respondent No.1 had
approached and purchased approximately 800 bags of
sugar worth amount to Rs. 7,00,000 (Seven Lakhs Rupees)
and later on had removed the signboard of his shop.
18. It further appears that when the P.W.1 was cross-
examined by the defence, he clarified that Exhibit-C series
exhibited by the defence are the bills issued by the
petitioner/complainant firm in favour of the
accused/respondent No.1 on different dates of 2003. It
further appears that P.W.1 during cross-examination
identified Exhibit-D as the road challan issued by the
petitioner/complainant firm for supply of sugar in the year
2003. It further appears that during cross-examination,
P.W.1 admitted the possibility of the claim raised by the
defence that the accused/respondent No.1 had dealings
with his firm for crores of rupees and the entire payment
was received through 66 demand drafts, though he stated
that he could not confirm it. He further admitted the
possibility of the claim that those drafts were received
through the account at Fancy Bazar Branch as disclosed by
the RTI reply (Exhibit-E) and stated that there might be a
possibility that the demand drafts were received as
advance payment of the supply made by them. However,
he denied the suggestion that 20.05.2004 was not the first
time that the accused/respondent No.1 had visited their
firm and also denied the suggestion that the 850 bags of
sugar, which was sent to the accused/respondent No.1 was
damaged.
19. It further appears from the explanation given by
the accused/respondent No.1 under Section 313 of Cr.P.C.
that he had been doing regular business with the
complainant firm since 2001 which came around Rs.
2,00,00,000 (Two Crores Rupees) and the amount have
been paid through 66 bank drafts and that there is no
outstanding dues to the complainant. It further appears
that by deposing himself as D.W.1, he stated that he knew
the alleged broker since 2001 and had business
transactions with him as well as the owner of the
petitioner/complainant firm and the authorized
representative of the petitioner/complainant firm. He
further deposed that all payments were made through SBI,
Fancy Bazar and Guwahati Branches and were payable to
the petitioner/complainant firm.
20. He further exhibited Exhibits- A to H in support of
the aforesaid deposition. He further deposed that on
20.05.2004, the petitioner/complainant firm sent 850 bags
of sugar, however, after receiving the same, he found it to
be damaged and had immediately called up the
complainant firm and informed the same. However,
complainant firm refused to accept the same.
21. Thus, it appears that the factum of receipt of the
sugar in question is admitted, however, the defence has
raised the plea that the same was defected for which he
refused to accept it.
22. In the backdrop of the aforesaid evidences, the
trial Court has acquitted the accused/respondent No.1 from
the offence under Section 420 and 503 of IPC. Relevant
paragraphs of the judgment and order is reproduced
hereunder for ready reference:-
"Judicial Determination
23. I have considered the evidence in its totality.
The crux of the prosecution evidence is that the
accused person was supplied with 850 (eight
hundred and fifty) bags of sugar. He accepted the
same but later did not make any payment for the
same. On the contrary, when one of the
complainant's staff visited his address in Agartala,
he found that the shop at the given address was
closed and the accused had removed his
signboard. Later, when he confronted the accused,
he refused to make the payment and threatened
him with dire consequences,
24. Per contra, the evidence of the defence
suggests that the accused and the complainant
had been in business prior to 2004 and had
engaged in transactions running into crores of
rupees. As to the sugar supplied, the same was
damaged and he had asked the complainant to
replace the same but instead the complainant filed
the instant case.
25. Now, let me analyze the entire evidence on
record and see whether the prosecution has been
able to establish its case.
Business Relations Between the Complainant
and Accused:
26. The complainant side has alleged that on
20.05.2004, the accused person had come to their
proprietary concern with one Sri Sarvan Beniwal
and introduced himself as a bug businessman from
Agartala. PW-1 has stated this categorically in his
evidence. Both PW-2 and PW-3 (Sri Sarvan
Beniwal) also stated that in 2004, the accused
person came to the complainant firm.
27. Per contra, the accused person has stated that
he had been in business with the complainant firm
since 2001. In fact, they had engaged in business
transactions worth crores of rupees. A perusal of
Exhibits A to D dearly shows that there were
indeed, business transactions between the two
parties. These exhibits have been identified by PW-
1 himself, Exhibits E to H also show that 31 (thirty
one) demand drafts payable to the complainant
firm were issued by the accused person prior to the
transaction of 20.05.2004. Even PW-1 admitted to
the possibility of those payments through the
demand drafts though he refrained from confirming
It.
28. Nevertheless, it seems cear that prior to the
transaction of 20.05.2004, there had been
business transactions between the complainant
and the accused. This was not mentioned by the
complainant side.
29. The learned counsel for the complainant stated
that though there might have been prior
transactions between the complainant and the
accused person, it was on 20.05.2004 that the
accused first visited the complainant company
through the broker, Sri Savan Beniwal and
Introduced himself.
30. The learned counsel for the accused, however
has vehemently argued that this omission cearly
shows mala fide intention on the part of the
complainant. After all, these transactions cearly
show that the accused and the complainant knew
each other prior to the said business transaction.
31. The learned counsel for the complainant has
argued that the defence was trying to make a
mountain out of a molehill. The complainant was a
major proprietary concern that engaged in large
scale trade with a number of different customers. It
is possible that on several occasions, the accused
person might have engaged in trade with the
complainant firm but it was on 20.05.2004 that the
accused person first appeared personally.
32. Now, I have considered the arguments of both
sides on this point. The defence exhibits clearly
show the existence of prior trade between the
complainant and the accused person but the same
do not show that the accused person had earlier
visited the complainant firm. Moreover, the accused
has also not stated anything to that effect in his
evidence.
33. Further, the offence alleged in the instant case
pertains to only a particular transaction which
occurred on 20.05.2004. That said transaction is
not dependent on any earlier transactions that both
parties might have entered into. That transaction
has not been denied by the defence. Hence,
omission of the complainant to mention any earlier
business transactions between both parties is not
fatal to the prosecution case.
Transaction Dated 20.05.2004
34. As mentioned in the preceding peragraph, the
offence alleged relates to the transaction dated
20.05.2004. Both PW-1 and PW-2 have backed up
the allegation that the 850 (eight hundred and fifty)
bags of sugar was loaded on two trucks and
dispatched to the accused person. The two road
challans (Ext-2 and Ext 3) stand in support of this
claim. The broker, Sri Sarvan Beniwal also
corroborated this.
35. Now, the interesting part is that though the
accused person has denied the allegations against
him, in his evidence adduced as DW-1 he has
admitted to receiving the consignments. However,
he has raised the plea that the sugar supplied was
damaged and he had requested the complainant
for a replacement.
36. Thus, the evidence in its totality, both
prosecution and defence, vouches for the
transaction dated 20.05.2004. The evidence clearly
shows that the accused person did receive the
sugar supplied by the complainant.
Was the Sugar Damaged?
37. The accused person has claimed that when he
received the sugar, he found the same to be
damaged. He informed the complainant of the
same and requested a replacement but the
complainant went ahead and instituted a false
case against him.
38. At this juncture, let me point out that the
defence has not produced any evidence, oral or
documentary, to corroborate this claim. The
accused has himself stated that he had not filed a
written complaint in respect of the supply of
damaged goods.
39. The accused person, by his own admission,
has engaged in deals worth crores of rupees with
the complainant firm. He has meticulously
preserved the different receipts and challans
issued by the complainant firm over the years. Yet
contrary to his meticulous nature, he failed to file a
written complaint to the complainant firm as to the
supply of damaged goods. Moreover, he has failed
to produce a single witness to whom he had
mentioned about the damaged supply.
40. In such circumstances, it seems that there is
nothing on record to suggest that the sugar
supplied by the complainant and received by the
accused was damaged.
Civil Wrong vs Criminal Offence
41. The learned counsel for the accused has
argued that there is at best a breach of contract
between the parties and the appropriate remedy
lies before a civil court. Per contra, the learned
counsel for the complainant has argued that just
because a civil remedy is available, it does not
imply that criminal remedy is extinguished.
42. At this juncture, I am reminded of the judgment
of the Hon'ble Supreme Court of India in M/S
Medchl Chemicals Pharma P. Ltd vs M/S
Biologoical E. Ltd. & Ors reported in AIR 2000
SC 1869 wherein the Hon'ble Supreme Court
observed that simply because of the fact that there
is a remedy provided for breach of contract, that
does not by itself dothe the court to come to a
conclusion that civil remedy is the only remedy
avallable. Both criminal law and civil law remedies
can be pursued in different situations and, they
are not mutually exclusive but clearly co-extensive
and essentially differ in their content and
consequence..."
43. Thus, it is apparent that just because the
complainant firm had the civil remedy available, it
is not barred from pursuing a criminal action
against the accused person. Establishing the guilt
of the accused person in a criminal trial, however,
is a different matter altogether.
44. Now, let me analyze, in the light of the evidence
adduced on record and aforementioned
discussions, if the accused person is guilty of the
offences charged.
Ingredients of The Offence of Dishonest
Misappropriation of Property
45. The essential ingredients of the offence of
dishonest misappropriation of property under
section 403, Indian Penal Code are:
a. The property in question must be movable,
b. The accused must have misappropriated it or
converted it to his own use;
c.. The accused must have done it dishonestly.
46. As discussed earlier, the evidence on record
cearly shows that the accused person received the
bags of sugar supplied by the complainant. It has
also been discussed that no evidence has been
found to establish that the sugar supplied was
damaged.
47. In such a situation, it is clear that the accused
person appropriated the bags of sugar supplied to
him. But does the appropriation amount to
misappropriation? The prosecution has
categorically stated in its evidence that the
accused failed to pay the amount due. In his
defence, the accused only stated that the sugar
was damaged which he then failed to prove. Since,
it is cear that no consideration has been paid for
the sugar bags, it can safely be assumed that the
appropriation was indeed misappropriation.
48. As for whether, the accused did it dishonestly,
let me go through Section 24 of the Indian Penal
Code.
Section 24, Indian Penal Code: Whoever
does anything with the intention of causing
wrongful gain to one person or wrongful
loss to another person is said to do that
thing dishonestly.
49. The acts of the accused person clearly caused
wrongful loss to the complainant and wrongful gain
to himself. The fact that he chose not to pay the
necessary consideration shows that it was indeed
his intention to cause such.
50. Situated thus, the particulars of Section 403,
Indian Penal Code are clearly made out against the
accused person, Sri Haradhan Chandra Saha.
Ingredients of The Offence of Cheating:
51. The accused person has also been charged
with cheating under section 420, Indian Penal
Code. However, I find it worth mentioning here that
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, at the time when the
offnece is said to have been committed. 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 a promise subsequently such a culpable
intention, cannot be presumed.
52. The learned counsel for the accused has
argued that the ingredients of the offence of
cheating have not been established against the
accused person. He has relied on two judgments of
the Hon'ble Gauhati High Court in his favour. Both
judgments reported in 2005 (Suppl) GLT 504 and
2012 (1) GLT 626 have analyzed the ingredients
of cheating.
53. In the latter judgment, the Hon'ble Gauhati
High Court categorically stated that,
'In order to constitute cheating, there must
be deception which should always precede
the fraudulent or dishonest inducement
and it must be established that the
intention of the accused was
dishonest even at the time of making
the promise. A promise and its failure of
fulfillment without the above mental
element would constitute only a civil
liability.'
(emphasis supplied)
54. Reverting to the case in hand, the evidence on
record does not show that the accused had
dishonest intention at the time of making the
promise. The transaction occurred on 20.05.2004.
There is nothing on record to suggest that the
accused person had come with a dishonest
intention on that day and it was pursuant to that
dishonest intention, that he induced the
complainant to deliver the sugar bags.
55. That the accused person subsequently failed to
pay the necessary consideration for the sugar bags
does not imply that there was dishonest intention
at the time, he made the promise to pay the money.
Conduct, previoυs or subsequent, is a relevant fact
for consideration in any trial or proceeding as per
Section 8 of The Indian Evidence Act. The accused
person has managed to prove through his exhibits
which were admitted by the Manager of the
complainant firm (PW-1) that he had on multiple
previous occasions engaged in trade with the
complainant and in each of those transactions, he
had paid the necessary payment through demand
drafts.
56. It is pertinent to mention here that the learned
counsel for the complainant has argued that the
fact that the accused person had removed his
signboard from his shop shows that his intention
had all along been to deceive the complainant. At
this juncture, let me point out that except PW-2,
nobody else's testimony to the effect that the
accused peson had removed the signboard is
based on their personal knowledge. As for PW-2's
statement, even if it is presumed to be true, the fact
remains that he went to Agartala more than a year
later. That does not in any way prove that the
accused person had a dishonest intention to
deceive the complainant a year earlier.
57. The absence of any evidence to show
preliminary dishonest intention on the part of the
accused juxtaposed with his previous conduct
shows us a picture in which, it can, in no way, be
held that he had the dishonest intention to deceive
the complainant at the time, he promised to make
the payment. That, he later failed to fulfill this
promise is a different matter altogether. Situated
thus, it is clear that the prosecution has not been
able to establish the ingredients the offence of
cheating against the accused person.
The Offence of Criminal Intimidation
58. The complainant side has also brought in the
allegation that the accused person threatened the
complainant's representative, Sri Vinod Singh on
19.09.2015. On the contrary, the accused person
has denied this allegation. It is worth recalling here
that through the suggestions put to PW-2, Sri Vinod
Singh, the defence raised the plea of alibi that the
accused was in Chennai at Apollo Hospitals at that
time. But the defence failed to shoulder the burden
of proving this plea.
59. Hence, in such a situation, it will have to be
assumed that the accused was not in Chennai on
that day. However, the prosecution still has the
initial burden of proving that the accused criminally
intimidated Sri Vinod Singh. Now, let me see what
Sri Vinod Singh has stated in his evidence in
relation to the criminal intimidation.
60. While deposing as PW-2, Sri Vinod Singh
stated that the accused person threatened him that
if he did not leave Agartala, he would face
troubles. The definition of criminal intimidation as
given in Section 503, Indian Penal Code deals with
the threat of injury to a person, his reputation or
property or to the person, reputation or property of
any one in whom that person is interested. Telling
a person that he would face troubles does not come
within the ambit of injury to the person, reputation
or property. That is way too vague a statement to
come within the broadest of contours of criminal
intimidation.
61. Hence, in such a situation, even if the
statement of PW-2 is taken at face value to be
absolutely true, the same does not make out the
offence of criminal intimidation against the accused
person, Sri Haradhan Chandra Saha."
23. Pertinent that, it is imperative for the appellate
Court while sitting in appeal against acquittal, to bear in
mind that in case of acquittal, there is double presumption
in favour of the accused/respondent No.1. Firstly, the
presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is
proved guilty by a competent Court of law. Secondly,
accused/respondent No.1 having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial Court. Thus, the
paramount consideration of the appellate Court ought to
be to avoid miscarriage of justice. A miscarriage of justice,
which may arise from the acquittal of guilty, is no less than
from the conviction of an innocent. Hence, in a case where
the trial Court has taken a view based upon conjectures
and hypothesis and not on evidence, a duty is cast upon
the High Court to re-appreciate the evidence in acquittal
appeal for the purposes of ascertaining as to whether the
accused/respondent No.1 has committed any offence or
not. However, if the view taken by the trial Court is a
probable view on the basis of evidence, the view taken by
the trial Court ought not be disturbed in the appeal.
24. Reference is made to the decision of the Apex
Court in the case of Chandrappa & Ors. Vs. State of
Karnataka reported in (2007) 4 SCC 415. Relevant
paragraph of the aforesaid judgment and order is
reproduced hereunder for ready reference:-
"42. From the above decisions, in our considered
view, the following general principles regarding
powers of the appellate court while dealing with an
appeal against an order of acquittal emerge:
(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973
puts no limitation, restriction or condition on
exercise of such power and an appellate
court on the evidence before it may reach its
own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as, 'substantial
and compelling reasons', 'good and sufficient
grounds', 'very strong circumstances',
'distorted conclusions', 'glaring mistakes',
etc. are not intended to curtail extensive
powers of an appellate court in an appeal
against acquittal. Such phraseologies are
more in the nature of 'flourishes of language
to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail
the power of the court to review the evidence
and to come to its own conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly,
the presumption of innocence is available to
him under the fundamental principle of
criminal jurisprudence that every person
shall be presumed to be innocent unless he
is proved guilty by a competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence is
further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible
on the basis of the evidence on record, the
appellate court should not disturb the finding
of acquittal recorded by the trial court."
25. Turning back to the facts of the instant case, it
appears that the trial Court after carefully apprising the
entire evidence has come to the conclusion that the
prosecution has not been able to establish the ingredient of
cheating and criminal intimidation against the
accused/respondent No.1.
26. Section 420 of IPC reads as hereunder:-
"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."
27. In order to attract the offence of cheating, there
has to be a dishonest intention from the very beginning
which is sine qua non to hold the accused/respondent No.1
guilty for commission of offence under Section 420 of IPC.
In the case in hand the evidence on record does not show
that the accused/respondent No.1 had dishonest intention
at the time of making the promise. Hence, in the absence
of any evidence to show initial dishonest intention to
deceive the petitioner/complainant firm at the time of
promise, no offence of cheating is established against the
accused/respondent No.1.
28. This brings me to the offence of criminal
intimidation. Section 503 of IPC reads as hereunder:-
"503. Criminal intimidation. Whoever threatens
another with any injury to his person, reputation or
property, or to the person or reputation of any one
in whom that person is interested, with intent to
cause alarm to that person, or to cause that person
to do any act which he is not legally bound to do,
or to omit to do any act which that person is legally
entitled to do, as the means of avoiding the
execution of such threat, commits criminal
intimidation.
Explanation. A threat to injure the reputation of
any deceased person in whom the person
threatened is interested, is within this section."
29. To constitute an offence under Section 503 of
IPC, there has to be a threat, inter-alia, with an injury to
his person, reputation or property. In the instant case,
P.W.2 deposed during trial that if he did not leave Agartala,
he would face troubles. Mere threat is not sufficient
enough to attract an offence of criminal intimidation unless
it causes alarm. In the present case, the
petitioner/complainant firm has failed to show that the
accused/respondent No.1 did threat them with an injury in
respect of their body, reputation and property with
intention to cause alarm to the petitioner/complainant firm
or other. Apparent thus, that nothing appears to be there
in the case to constitute an offence under Section 503 of
IPC. Hence, no offence under Section 503 of IPC is also
established against the accused/respondent No.1.
30. Pertinent that the argument of Mr. Y. Kothari,
learned counsel for the petitioner/complainant firm that the
accused/respondent No.1 had removed the signboard from
his shop shows the intention to deceive the
petitioner/complainant firm from the beginning is of no
merit or substance in as much as even if the testimony of
P.W.2 to the effect that the respondent No.1 had removed
the signboard is assumed to be true, it is clearly
discernable from the evidence of the prosecution witness
that P.W.2 went to the shop of the respondent No.1 at
Agartala after almost a year from the alleged date of
delivery of the sugar and therefore, the same is not
sufficient enough to prove that the accused/respondent
No.1 had the dishonest intention to deceive the
petitioner/complainant firm from the beginning of the
transaction.
31. In the backdrop of the aforesaid, it appears that
the trial Court has taken a probable view on the basis of
the legal evidences available on record. Hence, there are
no legal infirmities committed by the trial Court. As such,
the petitioner/complainant firm has failed to make out a
prima-facie case warranting grant of leave for appeal
against the said acquittal order by the trial Court. That
being so, the criminal leave petition has no merit or
substance whatsoever.
32. Hence, the criminal leave petition stands
dismissed.
33. No order as to costs.
34. Return the case records.
JUDGE
Comparing Assistant
