Jharkhand High Court
Md. Alam vs State Of Jharkhand on 22 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P No. 517 of 2019
Md. Alam .... .... Petitioner(s).
Versus
State of Jharkhand .... .... Opposite Party(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
THROUGH : VIDEO CONFERENCING
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FOR THE PETITIONER(S) : Mr. Birendra Burman, Advocate
FOR THE STATE : APP
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05/22.02.2021
The lawyers have no objection with regard to the proceeding,
which has been held through video conferencing today at 11.00 A.M.
They have no complaint in respect to the audio and video clarity and
quality.
2. Heard learned counsel appearing for the petitioner(s) and the
learned Counsel for the State.
3. By filing this application, petitioner has challenged the order
dated 18.9.2017 passed by learned Additional Sessions Judge, Palamau
upholding the order dated 26.3.2015 passed by Chief Judicial
Magistrate, Palamau, corresponding to G.R. No. 353 of 1997 arising
out of Sadar (T) P.S. Case No. 128 of 1997. The order of the trial court
dated 26.3.2015 is also under challenge. By the impugned order, the
trial court has exercised jurisdiction under Section 216 Cr.P.C and
directed that additional charge be also framed under Section 420 IPC.
4. Counsel for the petitioner submits that petitioner was facing trial
under Section 406 IPC and charge was framed on 22.7.1999. He
submits that prosecution had produced seven witnesses thereafter
prosecution evidence was closed. On 03.01.2004 statement under
Section 313 Cr.P.C was also recorded. He submits that the case was
running for arguments but on 25.3.2015 a petition was filed by the
prosecution for adding Section 420 Cr.P.C. He submits that after much
delay, a petition was filed which is absolutely improper. He submits that
there were no material to frame charge under Section 420 Cr.P.C. He
lastly submits that complainant is dead so there is no person to
substantiate the charge under Section 420 Cr.P.C. He further submits
that document which is the basis to alter the charge is not on the police
papers.
5. Learned Counsel for the State submits that at any stage prior to
pronouncement of the judgment, the court has power to add and alter
charge. He submits that admittedly judgment has not yet been
pronounced, thus court has exercised its jurisdiction prudently. He
submits that there are materials to frame charge.
6. I have gone through the impugned orders. Initially FIR was
registered under Section 406, 420, and 120B IPC. Charge was framed
under Section 406 IPC and trial proceeded. The prosecution during the
stage of argument felt that charge should have also been framed under
Section 420 IPC also, thus a petition was filed by the prosecution and
the said petition was allowed and the charge under Section 420 IPC was
directed to be framed.
7. When I go through the complaint I find that there is an allegation
that the petitioner had entered into an agreement/arrangement with the
complainant wherein the accused had to sell five thousand bags of
Kendu Leaves to the complainant. It is the allegation that inspite of
taking advance, the petitioner has not sold the Kendu leaves, rather
taking steps to sell the Kendu leaves to other persons.
Section 420 IPC provides punishment for cheating and
dishonestly inducing a person to deliver property.
Section 415 IPC defines cheating. It is necessary to extract
Section 415 IPC herein below:-
415. 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".
There are several illustrations given in the foot of the aforesaid
section. Illustration (g) needs to be quoted herein below.
(g) A intentionally deceives Z into a belief that A
means to deliver to Z a certain quantity of indigo plant
which he does not intend to deliver, and thereby
dishonestly induces Z to advance money upon the faith
of such delivery. A cheats; but if A, at the time of
obtaining the money, intends to deliver the indigo plant,
and afterwards breaks his contract and does not deliver
it, he does not cheat, but is liable only to a civil action
for breach of contract.
8. From illustration (g), I find that if a person deceives another one
and obtains advance on the ground of selling some property and which
he does not intend to deliver the same will definitely make out an
offence. Now in this transaction what was the intention of the accused
person has to be gathered only after evidence. Prima facie from the
complaint I find that there is material which attracts Section 415 Cr.P.C.
Thus, court below has rightly altered the charge and added Section 420
Cr.P.C. I find no illegality in the same.
9. Further I find that there is no limitation in filing of application
under Section 216 Cr.P.C. Charges can be altered prior to the delivery
of the judgment also. This case is fixed for argument for the parties.
Thus, I find no illegality in amending the charge at the aforesaid stage.
10. So far as the claim of the petitioner is concerned that the
complainant is already dead and there is no one to give evidence on the
aforesaid point, I find that even in absence of the complainant, if there
are material witnesses who are at privy to the aforesaid fact can be a
competent witness. Thus on the ground that the complainant is dead,
the prayer of the petitioner cannot be allowed.
11. Further the claim of the petitioner that the documents are not the
part of the police papers, will have no relevance at this stage as because
it is the court below who has to look into the matter, after the charge is
framed and the evidence is gathered.
12. Considering all the aforesaid fact, I find no merit in this
application.
13. Accordingly the instant petition stands dismissed.
14. Since the trial is pending since long, I direct the trial court to take
all possible steps so that trial can be concluded on a priority basis,
preferably within a period of nine months without giving unnecessary
adjournments to the parties. The prosecution will give the list of
additional witnesses to the court below whom the prosecution intends
to produce, within four weeks from today. If any additional witness is
produced or if any additional evidence is taken, the petitioner will have
a right to cross-examine those witnesses.
15. The interim order dated 14.11.2019 stands vacated. The court
below to proceed.
(ANANDA SEN , J)
anjali/ C.P 3
