Jharkhand High Court
Saluka Deogam @ Vishal Deogam vs The State Of Jharkhand on 25 June, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 961 of 2013
Saluka Deogam @ Vishal Deogam, son of Arjun Deogam, resident of
Village - Matkamhatu, P.O. - Matgkamhatu, P.S. - Muffasil, District -
Singhbhum West ... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Saurav Kumar Singh, Advocate
For the Opp. Party State: Mr. Sanjay Kr. Srivastava, A.P.P
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Through Video Conferencing
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10/25.06.2021 Heard Mr. Saurav Kumar Singh, learned counsel
appearing on behalf of the petitioner.
2. Heard Mr. Sanjay Kumar Srivastava, learned counsel
appearing on behalf of the opposite party - State.
3. This criminal revision application has been filed against
judgment dated 27.08.2013 passed by learned Sessions Judge,
West Singhbhum at Chaibasa in Criminal Appeal No.72 of 2013
whereby he has dismissed the appeal filed by the petitioner and
upheld the judgment of conviction and order of sentence dated
05.07.2013 passed by learned Judicial Magistrate, 1st Class at
Chaibasa in G.R. Case No.553 of 2010 arising out of Muffasil P.S
Case No.112 of 2010 so far it relates to conviction under Section
420 of Indian Penal Code.
4. The petitioner was the sole accused, who was charged for
offence under Sections 323/406/420 and 452 of Indian Penal
Code and upon trial, was found guilty of offence under Sections
406/420 and 323 of Indian Penal Code read with Section 34 of
Indian Penal Code. The petitioner was acquitted for alleged
offence under Section 452 of Indian Penal Code.
5. The learned appellate court acquitted the petitioner for
offence under Sections 406 and 323 of IPC but upheld his
conviction under Section 420 of IPC.
6. The petitioner has been sentenced to undergo rigorous
imprisonment for two years for offence under Section 420 of
Indian Penal Code and fine of Rs.500/- and in default of
payment of fine, he was to undergo simple imprisonment for
one month.
Arguments on behalf of the Petitioner
7. Learned counsel for the petitioner submits that the
learned trial court convicted the petitioner by referring to
Section 34 of Indian Penal Code, but throughout the petitioner
was the sole accused and accordingly Section 34 of Indian Penal
Code could not be attracted. However, the learned appellate
court upheld the conviction of the petitioner only under Section
420 of Indian Penal Code.
8. Learned counsel for the petitioner further submits that
the solitary point of law involved in the present case is that the
basic ingredient for offence under Section 420 of Indian Penal
Code is not at all satisfied. It was specific case of the informant
P.W.1 that a friendly loan of Rs.1,03,000/- was extended to the
accused on different dates which was not returned and
thereafter a Panchayati was held where the accused agreed to
repay the amount in monthly installments of Rs.2,000/- but he
did not act upon his promise. He submits that further specific
case of informant P.W.1 was that the accused had taken one
mobile and golden ring on the pretext that he was going to see a
girl for marriage, but the same was also not returned. Learned
counsel submits that there is no material on record to indicate
that since beginning there was any ill intention or fraudulent
intention of the petitioner and accordingly, the conviction
under Section 420 of Indian Penal Code cannot be sustained in
the eyes of law. He submits that the entire dispute is of pure
civil nature and this aspect of the matter has not been properly
considered by the learned courts below and accordingly the
appellate court's judgment upholding the conviction under
Section 420 of Indian Penal Code calls for interference by this
Court in revisional jurisdiction.
9. Learned counsel has also referred to judgments passed by
Hon'ble Supreme Court in the case of "Uma Shankar Gopalika
Vs. State of Bihar and Another" reported in (2005) 10 SCC 336;
"V.Y. Jose and Another Vs. State of Gujarat and Another"
reported in (2009) 3 SCC 78; "Vesa Holdings Private Limited
and Another Vs. State of Kerala and Others" reported in (2015)
8 SCC 293; "Hira Lal Hari Lal Bhagwati Vs. CBI, New Delhi"
reported in (2003) 5 SCC 257; "Satishchandra Ratanlal Shah Vs.
State of Gujarat and Another" reported in (2019) 9 SCC 148.
Arguments on behalf of the opposite party - State
10. Learned counsel appearing on behalf of the opposite
party - State, while opposing the prayer, has submitted that
there are concurrent findings recorded by the learned courts
below so far as conviction of the petitioner under Section 420 of
Indian Penal Code is concerned. During the course of
argument, learned counsel for the State also does not dispute
the fact that the petitioner was the sole accused and therefore,
there was no occasion for attracting Section 34 of Indian Penal
Code. It has also not been disputed by the learned counsel for
the State that it was the specific case of the informant, who was
examined as P.W.1 that an amount of Rs.1,03,000/- was given
as friendly loan on different dates to the accused and the same
was not returned although subsequently an agreement to return
the same by way of monthly instalment was also entered into
between the parties, but the petitioner did not act upon the
promise.
Findings of this Court
11. As per the prosecution case, the father of the complainant
was employee of Barwari Lal Newatia Mines and after death of
his father, the complainant inherited his property. The
complainant and his sister had withdrawn an amount of
Rs.1,03,000/- to construct a house. In the meantime, the
petitioner being a friend of the complainant approached the
complainant and requested to pay him Rs.53,000/- as friendly
loan and an agreement in this regard was also made on
13.12.2007. Subsequently on 24.08.2009, the petitioner again
approached the complainant for a sum of Rs.50,000/- and in
this regard also an agreement was made. Accordingly, the
complainant paid a total of Rs.1,03,000/- to the accused. It is
also alleged that the petitioner took the mobile phone and the
golden ring from the complainant on the pretext that he was
going to see a girl for his marriage. The petitioner had assured
to return the same on arrival. It is the specific case of the
complainant that the accused neither returned the mobile
phone and the golden ring nor the loan amount.
It is alleged that on 22.10.2009 when the complainant
approached the accused for return of the aforesaid articles and
money, the accused tried to avoid the same and in spite of
several requests, neither repaid the money nor returned the
mobile and the golden ring. Further on 26.10.2009, the
petitioner told the complainant that he would repay the amount
on monthly instalments of Rs.2,000/- and in this regard an
undertaking was given in writing by the petitioner to the
complainant, but in spite of that the petitioner did not fulfil his
promise. It was also alleged that on 28.09.2010 at about 10. p.m.,
the petitioner came to the house of the complainant along with
4 unknown persons and asked him to return all the documents
and when the complainant denied, the petitioner assaulted him
and threatened to kill. The complainant approached the
concerned police station, but no action was taken and
consequently, the complaint case was filed.
12. The complaint case was numbered as C/1 Case No.88 of
2010 which was sent for investigation by the police under
Section 156 (3) of Cr. P.C. and consequently Muffasil P.S. Case
No.112 of 2010 dated 13.10.2010 was registered under Sections
452/ 406/ 420/ 323/ 34 of Indian Penal Code. After
investigation, charge sheet was filed under Sections 452/ 406/
323/ 420 of Indian Penal Code and cognizance was taken under
the aforesaid Sections on 04.01.2011. The charges were framed
under Sections 452/ 323/ 406 and 420 of Indian Penal Code.
13. After the prosecution evidence, the petitioner was
examined under Section 313 Cr.P.C on 08.05.2013 and declined
to adduce any defence witness. In order to substantiate the case,
the prosecution had examined altogether 9 witnesses including
the informant and his sister.
14. P.W.1, who is the informant of the case deposed that after
the death of his father, money was received by him and
deposited in Bank of India. The petitioner is the brother in
relation, who took Rs.53,000/- in 2007 and Rs.50,000/- on
24.08.2009 and altogether he gave Rs.1,03,000/- to the petitioner
in presence of Budhan Singh Banra (P.W.4), Dilip Deogam
(P.W.5) and Sikander Deogam. The accused promised him to
pay the amount, but did not return the same. A Panchayati was
also done on 24.04.2009 where the petitioner promised to repay
the amount in monthly instalments of Rs.2,000/-. It was also
deposed that when the petitioner went to see a girl for his
marriage, he took the mobile and golden ring from the
complainant/informant, but did not return the same. It was
also stated that in the year 2010, the petitioner had come to
assault him. During cross examination, this witness stated that
there was an agreement between him and the accused. The
agreement was typed in the court, which bears the signature of
Budhan Singh Banra and Sikander Deogam.
15. P.W.2 is the sister of the informant, who has supported
the case of the prosecution and has also stated that the
petitioner was friend of her brother.
16. Other witnesses including P.W.3, P.W.4 and P.W. 5 have
supported the prosecution case. P.W.3 has also stated that the
complainant and the petitioner were friend and their friendship
was disrupted in the year 2009.
17. P.W.6 had also supported the prosecution case, but has
further deposed that at the time of Panchayati, Rs.5,000/- was
given by the petitioner to the complainant and Rs.98,000/-
remained as balance.
18. P.W.8 is the Investigating Officer of the case and P.W. 9 is
the doctor, who had exhibited the injury report as Exhibit 8.
Before the learned trial court, the defence had taken a specific
stand that none of the ingredients for offence under Sections
452/323/406 of Indian Penal Code was made out and so far as
offence under Section 420 of Indian Penal Code is concerned,
there was an agreement in connection with money transaction
and therefore, no criminal liability could be fastened upon the
petitioner and that the ingredient for offence under Section 420
Indian Penal Code was not made out.
19. The learned trial court vide para 18 of its judgment found
that there is no evidence on record to show that the accused had
entered into the house of the informant and accordingly was of
the view that no case under Section 452 of Indian Penal Code
was made out and acquitted the petitioner for offence under
Section 452 of Indian Penal Code. The learned trial court
considered the offence under Sections 406, 420 and 323 of
Indian Penal Code from para 19 onwards and recorded a
finding that it was crystal clear that there was delivery of
Rs.1,03,000/- by the informant to the petitioner and delivery of
mobile and golden ring to the petitioner which the petitioner
did not return and that the informant had sustained simple
injury. The learned trial court considered the question as to
whether the dispute between the parties was a civil dispute or a
criminal offence and framed the question at para 21 of its
judgment and recorded its finding at para 22, 23 and 24 as
follows:
"22. In the instant case there is no doubt that there was delivery
of Rs.1,03,000/- and delivery of Mobile Phone and Golden Ring.
The informant of the case in para 30 of the cross examination has
deposed that the accused did not returned the money in the year
2007 despite of demand. The witness has further deposed in his
cross-examination that there was an agreement before filing of the
case. Ext.2 is the agreement dated 24.08.09 suggest that the
agreement was made after delivery of payment. Ext.3 is the
undertaking of the accused dt. 24.09.09, he suggest that the
accused undertake to return Rs.1,03,000/- in monthly instalment
and also to return the Ring and Mobile.
23. Considering the aforesaid facts I find that at the time of taking
the amount there was no agreement and subsequently to avoid the
payment the accused entered into an agreement to repay the
amount and also undertake to repay the amount in monthly
instalment of Rs.2,000/- per month and also to return ring and
Mobile.
24. These facts clearly suggest that the accused had intention to
cheat the informant from the inception of the transaction and to
fulfil this object the accused entered into the agreement and gave
undertaking at later stage."
The learned trial court ultimately convicted the petitioner for
offence under Sections 406/420 and 323 of Indian Penal Code
read with Section 34 of Indian Penal Code.
20. The learned appellate court after considering the
materials on record, acquitted the petitioner for offence under
Sections 406 and 323 of Indian Penal Code and upheld the
conviction under Section 420 Indian Penal Code. The learned
appellate court was of the view that the learned trial court had
rightly convicted the petitioner under Section 420 of Indian
Penal Code. The learned appellate court recorded its finding in
para 14, 15 and 16 as follows:
"14. Thus, the first element necessary for constituting an
offence of cheating, is a 'deception' of the informant by the accused.
Unless there is deception, the offence of cheating never gets attracted.
After deception has been practiced the person deceived should get
induced to do or omit to do something. Then, the question arises as to
what was the deception.
15. In the ordinary sense, deception has in it the element of
misleading or making a person believe something that is false, or
inculcating of one so that he takes the false as true, the unreal as
existent, the spurious as genuine and it is also necessary that
deception should be right from the beginning of the contract.
16. Applying the principle constituting the criminal offence of
cheating in the context of the alleged allegation, it does appear that
element of deception constituting an offence of cheating was from the
very beginning. Therefore, accused has cheated the informant.
Informant had received the money from the death of his father, who
was an employee and that money was deceived by the accused giving a
false promise from the very beginning that he would return the
money. Deception was in the earlier stage, is clear from the fact that
even after the panchayati to pay the money in an monthly installment
of Rs.2,000/-, not a single installment has been given by the accused.
Deception is a thing, which can be gathered from the facts and
circumstances of the case. Therefore, I am of the opinion that the
accused has cheated the informant to a tune of Rs.1,03,000/-, a mobile
and golden ring. As per the case of the defence, there was an
agreement to return it and decision has been referred that where there
is agreement, there cannot be element of cheating. As a principle,
there is no doubt, but when I test it from the facts of this case, it is
clear even after deceiving Rs.1,03,000/-, the accused was not satisfied
and he further deceived the informant by taking his mobile and golden
ring. Therefore, from all corner, the prosecution has been able to prove
the charge u/s 420 I.P.C."
21. This Court finds that a number of judgments were relied
upon by the petitioner before the learned trial court and also
certain judgments were relied before the learned appellate court
inter alia on the point of ingredients of offence under Section 420
of Indian Penal Code, but those judgments have not been dealt
with by both the learned courts below.
22. The learned trial court, while convicting the petitioner
under Section 420 of Indian Penal Code recorded that, at the
time of taking the amount there was no agreement.
Subsequently, to avoid the payment, the petitioner entered into
an agreement to repay the amount and undertook to repay the
same in monthly instalment of Rs.2,000/- and also to return the
ring and the mobile. Thereafter, the learned trial court recorded
that this fact clearly suggests that the petitioner had intention to
cheat the informant from the inception of the transaction and to
fulfil this object, the petitioner gave undertaking at a later stage.
This Court finds that it was the specific case of the informant
that the informant had given friendly loan of an amount of
Rs.1,03,000/- and further had also given a mobile and golden
ring on the pretext that the petitioner was going to see a girl for
marriage. It was never the case of the prosecution that at the
time of extending friendly loan and parting with the mobile and
golden ring, the petitioner had any intention to cheat. The
learned trial court while convicting the petitioner under Section
420 of Indian Penal Code miserably failed to consider that the
inception of the transaction was the act of extending friendly
loan and subsequently, parting with the mobile and golden ring
and there was no evidence on record that at the time of
aforesaid parting with money /articles, the petitioner had any
intention to cheat. Rather, the prosecution witness P.W-6 has
stated that the petitioner had to pay Rs.2,000/- per month as
instalment and in his cross examination, he has deposed that at
the time of Panchayati, an amount of Rs.5,000/- was given by
the petitioner to the complainant and Rs.98,000/- remained as
balance although the petitioner did not make any further
payment pursuant to the agreement. This Court finds that the
finding recorded by the learned trial court that the petitioner
had intention to cheat the informant from the inception of the
transaction, is perverse and is not based on any prosecution
evidence, rather the prosecution evidence is that a friendly loan
was extended and the accused took the mobile and golden ring
of the informant on the pretext that he was going to see a girl,
but there is no allegation from the side of the prosecution that at
the time of extension of friendly loan or at the time of taking
mobile and golden ring, the petitioner had any intention to
cheat the informant. It has also come in the evidence of the P.W-
1 itself that the accused is the brother of the informant in
relation.
23. So far as the learned appellate court is concerned, the
learned appellate court recorded that informant had received
the money after death of his father, who was employee and that
money was deceived by the petitioner giving false promise
from the very beginning that he would return the money. It
further held that the deception was in the earlier stage, which is
clear from the fact that even after the Panchayati to pay the
money in a monthly instalment of Rs.2,000/- not a single
instalment has been given by the petitioner. The learned
appellate court while recording the aforesaid findings failed to
consider that there was no evidence and it was never the case of
the informant that the petitioner had intention to cheat the
informant right from the date, he received the money and the
articles, rather it was the specific case of the informant that the
informant had extended friendly loan to the petitioner. The
learned appellate court has totally ignored the evidence of
P.W.6 that at the time of Panchayati, an amount of Rs.5,000/-
was given by the petitioner and what remained was only
Rs.98,000/- as balance and that the petitioner agreed to pay
Rs.2,000/- per month as instalment, but no instalment was paid
by the petitioner to the informant after the agreement.
24. In the case of "V.Y. Jose and Another Vs. State of Gujarat
and Another" reported in (2009) 3 SCC 78, the Hon'ble Supreme
Court has considered the basic ingredients of offence under
Section 420 IPC and held that:
"14. An offence of cheating cannot be said to have been made
out unless the following ingredients are satisfied:
(i) deception of a person either by making a false or misleading
representation or by other action or omission;
(ii) fraudulently or dishonestly inducing any person to deliver
any property; or to consent that any person shall retain any
property and finally intentionally inducing that person to do
or omit to do anything which he would not do or omit.
For the purpose of constituting an offence of cheating, the
complainant is required to show that the accused had
fraudulent or dishonest intention at the time of making
promise or representation. Even in a case where allegations
are made in regard to failure on the part of the accused to
keep his promise, in the absence of a culpable intention at the
time of making initial promise being absent, no offence under
Section 420 of the Penal Code can be said to have been made
out"
25. In the case of "Uma Shankar Gopalika Vs. State of Bihar
and Another" reported in (2005) 10 SCC 336, the Supreme Court
considered the legal position as to when the breach of contract
would give rise to offence of cheating and held as under:
"6........................ It is well settled that every breach of
contract would not give rise to an offence of cheating and only in
those cases breach of contract would amount to cheating where
there was any deception played at the very inception. If the
intention to cheat has developed later on, the same cannot
amount to cheating. In the present case it has nowhere been
stated that at the very inception there was any intention on
behalf of the accused persons to cheat which is a condition
precedent for an offence under Section 420 IPC"
26. In "Vesa Holdings Private Limited and Another Vs. State
of Kerala and Others" reported in (2015) 8 SCC 293, the Hon'ble
Supreme Court considered the legal position if the intention to
cheat developed after the transaction has held as under:
"12........,the settled proposition of law is that every breach of
contract would not give rise to an offence of cheating and only
in those cases breach of contract would amount to cheating
where there was any deception played at the very inception. If
the intention to cheat has developed later on, the same cannot
amount to cheating. In other words, for the purpose of
constituting an offence of cheating, the complainant is required
to show that the accused had fraudulent or dishonest intention
at the time of making promise or representation....."
27. In "Hira Lal Hari Lal Bhagwati Vs. CBI, New Delhi"
reported in (2003) 5 SCC 257, the Hon'ble Supreme Court
reiterated the legal position as under:
"40. It is settled law, by a catena of decisions, that for
establishing the offence of cheating, the complainant is required
to show that the accused had fraudulent or dishonest intention at
the time of making promise or representation. From his making
failure to keep promise subsequently, such a culpable intention
right at the beginning that is at the time when the promise was
made cannot be presumed...."
28. In the case of "Satishchandra Ratanlal Shah Vs. State of
Gujarat and Another" reported in (2019) 9 SCC 148, the Hon'ble
Supreme Court considered the legislative intent to criminalize
the nature of breaches of contract as under:
13. Now coming to the charge under Section 415 punishable
under Section 420 IPC. In the context of contracts, the
distinction between mere breach of contract and cheating would
depend upon the fraudulent inducement and mens rea.
(See Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya
Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168: 2000
SCC (Cri) 786].) ................................."
"14......................... The legislature intended to criminalise
only those breaches which are accompanied by fraudulent,
dishonest or deceptive inducements, which resulted in
involuntary and inefficient transfers, under Section 415 IPC."
29. It is a well-established principle of law that every breach
of contract or every dispute under an agreement does not
amount to the offence of cheating. It would amount to cheating
only in those cases where there was any deception played at the
very inception. To establish the offence of cheating, the accused
should be shown to have had fraudulent or dishonest intention
at the time of making promise or representation.
30. This Court finds that there was no allegation that the
petitioner has played deception or has ever made any false
promise or inducement causing the informant to part with the
money and in the absence of such allegation, no offence under
Section 420 of Indian Penal Code can be said to be made out.
This Court finds that the breach of undertaking to repay the
loan/return the articles in the manner claimed cannot be a basis
for prosecuting or convicting a person under Section 420 of the
Indian Penal Code. Even as per the statement of the prosecution
witness, P.W-6, the petitioner repaid the part of the amount and
the balance remained unpaid and the articles were not
returned. In view of the aforesaid findings, this Court finds that
basic ingredients of offence under Section 420 of Indian Penal
Code are totally absent in the present case.
31. This court finds that the breach of undertaking to repay
the loan/return the articles in the manner claimed cannot be a
basis for prosecuting or convicting a person under Section 420
of the Indian Penal Code in absence of any allegation that the
petitioner has played deception or has ever made any false
promise or inducement at the time of the transaction of taking
money/articles from the informant causing the informant to
part with the money/articles.
32. This Court also finds that the dispute between the
petitioner and the informant was essentially in the realm of civil
dispute and there being no evidence on record that the
petitioner had the intention to cheat the informant right from
the inception of the transaction of extending friendly
loan/handing over mobile and golden ring to the petitioner, the
conviction of the petitioner under Section 420 of Indian Penal
Code cannot be sustained in the eyes of law. The conviction of
the petitioner under Section 420 of Indian Penal Code by the
learned trial court which has been upheld by the learned
appellate court calls for interference in revisional jurisdiction of
this Court to meet the ends of justice and rectify the illegality
and perversity committed by the learned courts below in
convicting the petitioner under Section 420 of Indian Penal
Code. Accordingly, the conviction and sentence of the
petitioner for alleged offence under Section 420 of Indian Penal
Code is hereby set-aside.
33. Consequently, the judgment dated 27.08.2013 passed by
learned Sessions Judge, West Singhbhum at Chaibasa in
Criminal Appeal No.72 of 2013 upholding the judgment of
conviction and order of sentence dated 05.07.2013 under section
420 IPC passed by learned Judicial Magistrate 1 st Class at
Chaibasa in G.R. Case No.553 of 2010 arising out of Muffasil P.S
Case No.112 of 2010 is hereby set-aside and the petitioner is
acquitted. This criminal revision petition is allowed.
34. The petitioner is discharged from his liabilities under the
bail bond.
35. The office is directed to send the records of the court
below to the concerned court.
36. Let this order be communicated to the court concerned
through "FAX /e-mail".
(Anubha Rawat Choudhary, J.)
Saurav/Pankaj
