Jharkhand High Court

Satish Kumar Sahu vs The State Of Jharkhand ... .... Opp. ... on 1 October, 2024

Author: Subhash Chand

Bench: Subhash Chand

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          Cr. Rev. No. 679 of 2016

Satish Kumar Sahu, son of late Lalji Sahu, resident of Kandra, PO & PS
Kandra, District Saraikella.                           .....   ... Petitioner
                               Versus
The State of Jharkhand                                     ... .... Opp. Party
                                  --------
CORAM :         HON'BLE MR. JUSTICE SUBHASH CHAND
                              ------
For the Petitioner            : Mr. Sanjay Prasad, Advocate
                                Mr. Rajiv Lochan, Advocate
For the State                 : Mr. Naveen Kumar Gaunjhu, APP
                              : Mr. Gaurav Priyadarshi, Advocate
                             --------
                           JUDGMENT

CAV on 26th September 2024 Pronounced on 01 October 2024

The instant criminal revision has been directed against the

judgment dated 29.02.2016 passed by the learned Additional Sessions

Judge-I, Saraikella in Criminal Appeal No. 94 of 2013 whereby and

whereunder while dismissing the appeal upheld the judgment of

conviction and sentence dated 12.06.2013 passed by the learned Chief

Judicial Magistrate, Saraikela in G.R. Case No. 520 of 2009 (T.R. No.910

of 2013) convicting the petitioner under section 420 of the Indian Penal

Code and sentencing him with rigorous imprisonment for 2 years

alongwith fine of Rs.1,000/- and in default of payment of fine further

simple imprisonment of 3 months has been directed to undergo.

2. The brief facts of prosecution case giving rise to this criminal

revision are that the accused Satish Kumar Sahu came to the house of

informant and expressed his intention to sell the land of plot

no.1709/1787, Khata No. 124, measuring area 0.30 decimal (12 katha),

Thana No. 45, Mouza Kandra, PS Gamharia, District Saraikella at the rate of Rs.24,000/- per katha. The informant agreed to purchase the land

at the very rate and paid Rs.38,500/- on different dates. The accused

executed an agreement to sale and also promised to execute the sale deed

within three months but the accused did not reach to the Registry Office

to execute the sale deed in favour of the informant as was agreed. In the

meantime, the accused has also given permission to the Airtel mobile

company for erection of mobile tower on the very land under an

agreement without any consent of the informant. When the informant

visited the said land, he found the work was in progress for erection of

the mobile tower on the very land. Same was opposed by the informant

but was told by the accused persons that the sanction of mobile tower has

been accorded. The informant asked the accused to execute the sale deed

in his favour in compliance of the agreement to sale but he paid no heed

at all rather accused warned to the informant not to insist for execution of

sale deed in failure to face the dire consequences. Hence on this

complaint by the order of CJM concerned, Adityapur P.S. Case No.157 of

2009 was registered against the accused Satish Kumar Sahu for the

offence under sections 420, 467, 468, 120B of IPC. The investigating

officer after having concluded the investigation filed charge-sheet against

the accused for the offence under sections 420, 467, 468, 120B of IPC.

3. The court of CJM, Saraikella took cognizance on the charge-

sheet and framed charge against the accused for the offence under

sections 420, 467, 468, 120B of IPC. The charge was also read over and

explained to the accused who denied the charge and claimed to face the

trial.

4. On behalf of prosecution to prove the charge against the

accused in oral evidence examined altogether five witnesses, PW1-

Ratan Kumar, PW2- Indradeo Paswan, PW3- Rajnish Kumar Mishra,

PW4- Sajjan Kumar Paswan and PW5- Basistha Rabidas and in

documentary evidence filed application under section 156(3) of Cr.PC,

agreement to sale Exhibit-1, signature of witness on the agreement paper

Exhibit-1/1, money receipt Exhibit-2, Exhibit 2/1 & 2/2, Exhibit-4

signature of Sajjan Kumar Paswan on the FIR and complaint Exhibit-4/1,

FIR Exhibit-5.

5. The statement of accused under section 313 of Cr.PC was

recorded who denied the incriminating circumstances in evidence against

him and stated himself to be innocent.

6. On behalf of accused no evidence was adduced in defense.

7. The learned trial court after hearing the rival submission of

learned counsel of parties acquitted the accused from the charge of 120B,

467 and 468 of the Indian Penal Code and convicted for the charge under

section 420 of IPC and sentenced with imprisonment of 2 years RI and a

fine of Rs.1,000/- and in default of payment of fine further simple

imprisonment of 3 months was directed to undergo.

8. Aggrieved from the impugned judgment of conviction and

sentence passed by the learned trial court, the convicted Satish Kumar

Sahu filed the Criminal Appeal No.94 of 2013 which was dismissed by

the Court of the learned 1st Additional Sessions Judge, Saraikela-

Kharsawan vide judgment dated 29.02.2016 and upheld the

judgment of conviction and sentence of the petitioner Satish Kumar

Sahu for the charge under section 420 of IPC.

9. Aggrieved from the impugned judgment of conviction and

sentence passed by the trial court and also the judgment passed by the

appellate court whereby dismissing the appeal upheld the judgment of

conviction and sentence of trial court the instant criminal revision was

preferred on behalf of revisionist/convict Satish Kumar Sahu on the

ground that the impugned judgment passed by the trial court and also by

the appellate court are based on the wrong appreciation of the evidence

on record. No ingredient of cheating is made out. The simple breach of

the agreement to sale cannot give rise to institute the criminal offence

under section 420 of IPC. The dispute between the parties was purely of

civil nature which has been given the criminal colour in order to create

the pressure upon the revisionist/convict. In view of the above, prayed to

allow the criminal revision and to set aside the impugned judgment of

conviction and sentence passed by both the court below.

10. I have heard the learned counsel for the revisionist and

learned APP for the State and perused the relevant documents on record.

11. In order to decide the legality and propriety of the impugned

judgment of conviction and sentence passed by the learned trial court

which was affirmed by the learned appellate court, I would like to

examine the illegality and material irregularity in upholding the

conviction and sentence of the revisionist in view of the evidence on

record.

11.1 PW1- Ratan Kumar in his examination-in-chief says that

the informant is his elder brother. Satish Kumar Sahu came to his house

in the year 2004. He wanted to sell his land area of which was 12 katha. It

was agreed to sell at the rate of Rs.24,000/- per katha. At that time he,

R.B. Paswan and Ranjeet Kumar who were also present. The agreement

was executed on 29.03.2004. On the agreement Satish Kumar Sahu and

his brother put their signature. Till 2006, Rs.38,500/- was paid. The

registry was to be done within one year. His brother Sajjan Kumar asked

him to execute the sale deed but he did not execute the same rather

criminally intimidated them. On the agreement to sell dated 29.03.2004 is

the signature of him and signature of his brother Sajjan Kumar Paswan

and signature of Satish Kumar Sahu. This agreement is in his handwriting

and signature marked Exhibit-1.

In cross-examination this witness says on which date what

amount of money was given, he is not aware. After lapse of the period of

one year from the date of agreement to sell no notice was given and this

case was filed in the year 2009. No suit was filed for execution of sale

deed from the period of 2005 to 2009. Even no suit was filed for

repayment of the money given in agreement to sell.

11.2 PW2- Indradeo Paswan in his examination-in-chief verifies

his signature on the agreement to sell marks the same as Exhibit-1/1. All

the three money receipts was given by his son which is in his handwriting

and signature also bear the signature of him, Birbal Paswan and Satish

Kumar Sahu. He identifies the signature of them marked Exhibit 2, 2/1,

and 2/2. The compliance of agreement to sell was not made rather

criminal intimidation was given. The agreement and money receipt were

taken in custody by the investigating officer. The seizure memo bears his

signature which is marked as Exhibit-3.

In cross-examination this witness says within a period of one

year they were ready to pay the rest of the amount. The whole amount

was to be given at the time of execution of sale deed. No notice was

given after lapse of one year and this case was filed in the year 2006. No

suit for specific performance of agreement to sell or repayment of the

money was filed.

11.3 PW3- Rajnish Kumar Mishra in his examination-in-chief

says that he put his signature on the agreement to sell and also the money

receipt.

In cross-examination this witness says in these money

receipts how much money was shown, he is not aware. Who is the

recorded Raiyat in the khatiyan, he is not aware.

11.4 PW4- Sajjan Kumar Paswan the informant in his

examination-in-chief says in regard to the land of plot no. 1709/1787,

khata No.124, area 0.30 decimal the agreement to sale was executed on

24.03.2004 at the rate of Rs.24,000/- per katha. On the date of agreement

to sell Rs.6,000/- was given to Satish Kumar Sahu; and thereafter the total

amount of Rs.38,500/- was given to Satish Kumar Sahu but no sale deed

was executed and even the money which was paid was not returned. He

also criminally intimidated him. He identifies the agreement to sell which

bears his signature and also Satish Kumar Sahu on 06.07.2005 he paid

Rs.2,000/-, on 21.10.2005 he paid Rs.9,000/-, the receipt of the same

bears his signature and also of Satish Kumar Sahu marked Exhibit-2. The

another receipt is 24.11.2005 of Rs.5,000/- it also bears signature of him

and Satish Kumar Sahu which is already exhibited. On 15.10.2004

Rs.7,000/- was given which also bear signature of him and Satish Kumar

Sahu marked Exhibit-2/2. On the seizure memo of the agreement to sell

and money receipt are his signature which is already marked Exhibit-3.

In cross-examination this witness says, he did not give any

legal notice for execution of sale deed in compliance of the agreement

to sell and no suit was filed for the same. Even no suit was filed for

repayment of the money paid in advance.

11.5 PW5- Basistha Rabidas the investigating officer in his

examination-in-chief says that FIR of this case was lodged on the basis of

the complaint. It bears the endorsement of Rajendra Prasad Sahu and

forwarding by Anand Kumar Mishra in his handwriting and signature he

identify the writing of both marked Exhibit-4/1. The formal FIR of the

same is in the signature of Rajendra Prasad Sahu which is marked

Exhibit-5. He had taken over the investigation of the same, recorded the

statement of witnesses under section 161 of Cr.PC and also prepared the

seizure memo which is in his handwriting and signature marked 3/3 and

on the basis of the evidence collected, he filed the charge-sheet before the

court concerned.

12. Herein it would be pertinent to reproduce the statutory

provision of sections 415 and 420 of IPC which is reproduced 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".

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."

13. From the bare perusal of section 415 of IPC the following

ingredients are necessary to make out the offence of cheating (1)

deception of any person, (2)(a)fraudulently or dishonestly inducing that

person deceived (i) to deliver any property to any person or (ii) to consent

that any person shall retain any property (2)(b) intentionally inducing that

person to do or omit to do anything which he would not do or omit if he

were so deceived and which act or omission causes or is likely to cause

damage or harm to that person in body harm, reputation or property.

14. From the bare perusal of section 420 of IPC the following

ingredients are necessary (1) there should be fraudulent or dishonest

inducement of a person by deceiving him. (II)(a) the person so deceived

should be induced to deliver any property to any person or to consent that

any person shall retain any property or (b) the person so deceived should

be intentionally induced to do or omit to do anything which he would not

do or omit if he were not so deceived and (III) in cases covered by (ii)(b)

the act of omission should be one which causes or is likely to cause

damage or harm to the person induced in body, mind, reputation or

property.

15. From the very perusal of the evidence on record,

documentary and oral as well, there is no dishonest or fraudulent

intention on the part of the revisionist/convict to deceive the informant.

No evidence has been adduced on behalf of prosecution in regard to the

deception being exercised on the informant by the accused.

16. Rather the agreement to sell which has been proved by the

prosecution same was executed between the parties consensually. There is

no evidence in regard to the deception being exercised upon the

informant. The sale deed which was to be executed within one year from

the date of execution of agreement to sell after lapse of that period

admittedly the informant neither had given any notice to get the sale deed

executed in his favour nor has filed the suit for specific performance of

agreement to sell to get the sale deed executed in his favour. Even the

informant has not filed the suit for refund of the money which is alleged

to have been paid at the time of agreement to sell and subsequent to

agreement to sell as alleged.

17. It is the settled law in order to attract the offence of 420 of

IPC the complainant has to allege the inducement caused to him by the

accused by exercising deception upon him. No such evidence had been

adduced on behalf of the prosecution witnesses who were examined in

support of the charge framed against the revisionist/convict.

18. From the evidence adduced on behalf of the prosecution only

the breach of agreement to sell is proved and mere breach of agreement to

sell in absence of cheating cannot give rise to file the criminal proceeding

for the offence under section 420 of IPC.

19. The Hon'ble Apex court in "Dalip Kaur & Ors. v. Jagnar

Singh & Anr." AIR 2009 Supreme Court 3191 held:

"10................................................... ............................................ An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating.

20. The Hon'ble Apex Court in "Iridium India Telecom Ltd. v.

Motorola Incorporated & Ors." AIR 2011 Supreme Court 20 held:

"42. A bare perusal of the aforesaid section would show that it can be conveniently divided into two parts.

The first part makes it necessary that the deception by the accused of the person deceived, must be fraudulent or dishonest. Such deception must induce the person deceived to: either (a) deliver property to

any person; or (b) consent that any person shall retain any property. The second part also requires that the accused must by deception intentionally induce the person deceived either to do or omit to do anything which he would not do or omit, if he was not so deceived. Furthermore, such act or omission must cause or must be likely to cause damage or harm to that person in body, mind, reputation or property. Thus, it is evident that deception is a necessary ingredient for the offences of cheating under both parts of this section. The complainant, therefore, necessarily needs to prove that the inducement had been caused by the deception exercised by the accused. Such deception must necessarily produce the inducement to part with or deliver property, which the complainant would not have parted with or delivered, but for the inducement resulting from deception. The explanation to the section would clearly indicate that there must be no dishonest concealment of facts. In other words, non- disclosure of relevant information would also be treated as a misrepresentation of facts leading to deception.

It was, therefore, necessary for the High Court to examine the averments in the complaint in terms of the aforesaid section."

21. The Hon'ble Apex Court in "Vijay Kumar Ghai & Ors. v.

The State of West Bengal & Ors." 2022 Livelaw Supreme Court 305

held:

"34. There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by this court in Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr. (2000) 4 SCC 168, the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is

the basis of the offence of cheating. In the case at hand, complaint filed by the Respondent No. 2 does not disclose dishonest or fraudulent intention of the appellants."

22. In view of the critical examination of the evidence on record

it is found that the learned trial court as well as the learned appellate court

both have passed the judgment of conviction and sentence of the

revisionist/convict based on perverse finding by evaluating the evidence

on record in wrong perspective. The illegality and material irregularity

has been committed by both the court below in holding the conviction

and sentence of the revisionist/convict. Accordingly, this criminal

revision deserves to be allowed.

23. The criminal revision is hereby allowed and the impugned

order of conviction passed by the trial court in G.R. Case No. 520 of 2009

(T.R. No. 910 of 2013) which was affirmed by the appellate court in

Criminal Appeal No. 94 of 2013 dated 12.06.2013 & 29.02.2016