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2008 Supreme(Pat) 381
PATNA HIGH COURT
Abhijit Sinha, J.
Kamla Kant Trivedi
Versus
State Of Bihar
Civil Miscellaneous No. 24336 of 2007 ;
Decided On : FEBRUARY 21, 2008
The central legal point established in the judgment is the necessity to demonstrate fraudulent or dishonest intention at the beginning of a transaction to establish an offense under Section 420, IPC.
Headnote:
Section 420 - Criminal Complaint - Section 420, IPC - The judgment discusses the application of Section 420 of the Indian Penal Code in a case involving an agreement for the sale of land, fraudulent transactions, and breach of contract. The court highlights the necessity to demonstrate fraudulent or dishonest intention at the beginning of the transaction to establish an offense under Section 420, IPC. The court also emphasizes the importance of corroborated evidence and the requirement for intentional duping to attract Section 420, IPC.
Fact of the Case:
The complainant entered into an agreement for the sale of land with the petitioner and another accused. The complainant alleged that the accused cheated him of a significant sum of money through fraudulent means.
Finding of the Court:
The court found that the evidence presented did not establish the commission of any offense under Section 420, IPC. It emphasized the lack of corroborated evidence and the absence of intentional duping from the petitioner's side.
Issues: The issues revolved around the application of Section 420, IPC in the context of a land sale agreement, fraudulent transactions, and breach of contract. The court addressed the rejection of the petitioner's discharge petition and the subsequent order upholding the same.
Ratio Decidendi: The court's decision was based on the lack of evidence demonstrating fraudulent or dishonest intention at the beginning of the transaction, the absence of corroborated evidence, and the failure to establish intentional duping from the petitioner's side.
Final Decision: The court quashed the orders rejecting the petitioner's discharge petition and upheld that the same appeared to be an abuse of the process of the Court.
1. The petitioner who has been impleaded as one of the two accused in Complaint Case No. 1224(C) of 2001 is aggrieved by order dated 27-2-2007 passed in Criminal Revision No. 1007 of 2006 by the learned Presiding Judge, Fast Track Court No. V, Patna whereby and whereunder he has refused to set aside the order dated 21-11-2006 passed by Sri Brajesh Pandey, Judicial Magistrate, First Class, Patna, framing charge under Section 420, IPC after rejecting the petitioners petition under Section 245, Cr. P.C.
2. One Parmeshwar Thakur, the complainant, impleaded as O.P. No. 2 herein, filed the aforesaid complaint stating inter alia that he had entered into an agreement for sale of land on 4-9-1999 with the petitioner through accused No. 2, namely, Sheo Shanker Upadhyay, and that accused No. 2 demanded full consideration amount on the date of agreement for sale and in pursuance thereof he allegedly made a payment of Rs. 2,00,000/- in cash to accused No. 1 in the presence of accused No. 2. It is said that the petitioner and the other accused was added in the agreement for sale as vendee with his consent. It has further been alleged that on 12-6-2000, accused No. 2, Shiv Shanker Upadhayay, got power of attorney from the petitioner No. 1 and on the basis of the said power of attorney he became the owner in place of accused No. 1. It is also alleged that notwithstanding several reminders the registration was avoided by O. P. No. 2 under various pretext and eventually a legal notice dated 30-9-2007 was sent in response whereto accused No. 2 denied all the allegations. The complainant has further alleged that he has come to know that neither of the accused have any possession over the land in question and by fraudulent means thev had cheated the complainant of Rs. 2,00,000/-.
3. It has been submitted on behalf of the petitioner that the said case had been pending for complainants evidence and in between 16-6-2003 and 20-8-2005, the complainant was able to examine only one witness which was he himself and notwithstanding several directions of the Court to the complainant to bring his witnesses and also award of costs only one C.W. had been produced and it is worth noting that the complainant as witness has neither exhibited the complaint petition nor any other document in support of his case. Referring to the deposition of the complainant the learned counsel for the petitioner sought to submit that from a bare perusal thereof it. would appear that no ingredient of Section 420, IPC had been made out and there appears to whisper of any allegation by the complainant that he had been cheated at the hands of the petitioner. There is also no allegation of assault against the petitioner. It would also appear that the complainants evidence does not disclose the commission of any offence under Section 420, IPC and to hold a person guilty of cheating it was necessary to show that he had fraudulent or dishonest intention at the time of making of the promise.
4. Grievance has been raised against the learned Magistrate of not applying his mind to the materials available on record and mechanically rejecting the petitioners petition when there was nothing in the complaint petition or in the testimony of the complainant which in the least would make out a case either under Section 420 or 323, IPC. The learned counsel for the petitioner has also raised grievance against the order of the revisional Court upholding the order of the learned Magistrate directing for framing of charge.
5. The learned counsel for the petitioner further sought to submit that as would appear the advanced money had been paid to accused No. 2, Sheo Shankar Upadhyay, and it was he to whom request for execution of sale deed was made and it was he who armed with the power of Attorney had avoided executing the sale deed. It would also be apparent that there is no allegation of any overt act or inducement against the petitioner herein and hence no offence is made out against the accus
