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JAMMU AND KASHMIR HIGH COURT
Sanjay Kumar Gupta, J.
Bodh Raj —Appellant
versus
State of J&K —Respondent
Cr. Appeal No.48 of 2012, MP Nos.D-08 of 2015 and 20 of 2014
Decided on 14.9.2017
Counsel for the Parties:
For the Appellant:Mr. S. K. Anand, Advocate
For the Respondent: Mr. S.S. Nanda, Sr. AAG
Headnote:Indian Penal Code, 1860—Sections 420 and 467—Cheating and forgery—Complaint deposited Rs.4 lakhs with finance company of appellant and withdraw Rs.83000/- on different occasions—Appellant declined to pay balance amount of Rs. 3,17,000/- and was alleged to have fraudulently transferred the same to the loan account of husband of complainant by forging signatures of complainant on transfer application and by forging signatures of husband of complainant on hundi—Appeal against conviction—Accused could not be said to have fraudulent intention when complainant deposited her money—Record showed that FIR was registered on 4.6.1997 but substantial part of investigation had been completed earlier to FIR like specimen signatures of husband of complainant were obtained on 26.4.1997, alleged forged hundi was seized on 19.4.1997, hundi with specimen signatures were sent to FSL on 26.4.1997 and report was obtained—Prosecution case was liable to fail on that ground alone—Specimen signatures of husband of complainant were not proved that of his as Tehsildar in whose presence specimen signatures were taken stated that person was about 30/33 years old where as husband of complainant was 72 years old—Conviction was liable to be set aside. (Paras 14 to 21)
Result: Appeal allowed.
JUDGMENT
Sanjay Kumar Gupta, J.—In this appeal, the appellant has assailed the judgment dated 12th May, 2012 passed by the Principal Sessions Judge, Jammu, by virtue of which he has been convicted under Sections 420 and 467 RPC and the order dated 17th May, 2012, by virtue of which the appellant has been sentenced to undergo rigorous imprisonment for seven years and a fine of Rs. 1,50,000/- (Rupees One Lac and Fifty Thousand) under Section 420 RPC and rigorous imprisonment for ten years and a fine of Rs. 2.00 lacs (Rupees Two Lacs) under Section 467 RPC. Both the sentences were ordered to run concurrently.
2. In the memo of appeal, it has been stated that the complainant, namely, Sheran Bibi had deposited Rs.4.00 lacs (Rupees Four Lacs) with the Finance Company of the appellant, out of which, she has withdrawn Rs. 83,000/- on different occasions and the appellant refused to pay the balance of Rs. 3,17,000/- when demanded and had fraudulently transferred the same to the loan account of the husband of the complainant, namely, Bashir Ahmed, who alleged to have borrowed loan of Rs. 3,50,000/- from the company of the appellant by forging an application of the complainant for transfer of the amount to the loan account of the husband of the complainant and also forging the Hundi for Rs. 3,50,000/- in the name of the husband of the complainant. The FIR was lodged by the Finance Minister on the complaint of the complainant.
3. It is stated that when both the documents, i.e. Transfer Application of the complainant for transfer of the amount to the loan account of her husband and the Hundi were sent to the Director FSL for examination, he submitted his report that the thumb impression of the complainant on the Transfer Application is that of the complainant. But further reported that the signatures on the Hundi allegedly executed by Bashir Ahmed-husband of the complainant set up by the appellant does not tally with the admitted signatures of the husband of the complainant sent to FSL. The Police Station City, Jammu produced the challan against the appellant under Sections 420 and 467 RPC, for which the appellant was charged of having cheated the complainant by committing forgery.
4. It is further stated that during the trial, neither the complainant nor her husband has alleged that the accused/appellant has fraudulently induced the complainant to deposit Rs. 4.00 lacs with the company of the appellant with a criminal intention to deprive the complainant of her money. Rather the evidence produced by the prosecution and as admitted by the complainant and her husband that the complainant was receiving regularly amount from appellant’s company from time to time and had withdrawn Rs. 83,000/- on different occasions. Had there been a criminal intention to cheat, the appellant would not have paid Rs. 83,000/- to the complainant on different occasions. The prosecution has miserably failed to prove that at the time complainant deposited Rs. 4.00 lacs with the finance company of the appellant, the appellant induced the complainant to part with the money with an intention not to pay the same, which is the sine qua non for the offence of cheating.
5. It is settled law that mere receipt of money will not be cheating unless it is shown that it was received with pre-conceived intention of denying it later on and if intention is changed subsequently, it would not be a cheating as repeatedly held by our own High Court in 12 JKLR 32, AIR 1952 (J&K) 26 and AIR 1953 (J&K) 22. Even the Apex Court has held that mensrea on the part of the accused is must to establish to make out the case of cheating as held in 2003 JKJ (1) SC.
6. In the present case, the complainant was regularly withdrawing the amount from the company of the appellant for quite long time after the initial deposit and has withdrawn Rs. 83,000/- till she filed an application for transfer of the amount in the loan account of her husband. Though she denied of filing of the application, yet by the
