For a conviction under section 420 IPC, clear evidence of deception and dishonest intention is required, which was not established in this case.

JUDGMENT :

(Arun Dev Choudhury, J.)

1. Heard Mr. M.A Sheikh, learned counsel for the petitioner. Also heard Mr. K.K. Das, learned Addl. PP, Assam.

2. The present revision petition is filed under section 401 read with section 482 of the Code of Criminal Procedure, 1973 assailing the judgment and order dated 14.05.2009, passed by the learned Sub Divisional Judicial Magistrate, Margherita in GR Case No.126/2008, convicting the accused petitioner under section 420 IPC and sentencing him to suffer Rigorous imprisonment for one year and to pay a fine of Rs.3,000/- in default to serve simple imprisonment for one month.

3. The further challenge is to the judgment and order dated 16.03.2012 passed by the learned Addl. Sessions Judge, F.T.C. No.2, Tinsukia in Criminal Appeal No.17(2)/2009, whereby the said criminal appeal was dismissed by affirming the judgment and sentence passed by the learned trial court.

4. Mr. Sheikh, learned counsel for the petitioner argues that the findings of both the courts below are vitiated by perversity, inasmuch as no material has been produced by the prosecution to establish any ingredients of section 420 IPC. Mr. Sheikh, further contends that from the prosecution witness, more particularly, from the evidence of PW-1, the informant himself, it is clearly established that the dispute was civil in nature, however, the learned trial court, had committed serious error of law as well as fact by concluding that it is an offence under section 420 IPC. Therefore, this court in exercise of its revisional power should interfere with such perverse judgment, concludes Mr. Sheikh.

5. Per contra, Mr. K.K. Das learned Addl. PP submits that this court in exercise of its revisional power may not like to interfere with the concurrent finding of fact arrived at by both the courts below after the proper appreciation of prosecution evidence. He further contends that the decision under challenge cannot also be said to be grossly erroneous or perverse.

6. I have heard the learned counsel for the parties and perused the materials available on record.

7. As the primary argument revolves around the perversity of the judgment, this court has also perused the evidence available on record and produced by the prosecution.

8. From the FIR what is disclosed is that the accused person took cash amounting to Rs.80,000/- from the informant (PW-1) assuring him to hand over one 709 Mini Bus bearing registration No.AS 09 4788 on hire for four years. It is further alleged that in spite of receipt of the aforesaid amount, the accused petitioner did not hand over the vehicle to the informant. Though the informant made several attempts, but the accused avoided him. Accordingly, it is alleged that the accused person deceived the informant and took a sum of Rs.80,000/- only.

9. Based on the aforesaid FIR, Pengree PS Case No.15/2008 under section 420 IPC was registered. After completion of the investigation, the investigating officer submitted a charge sheet against the accused person under section 420 IPC. The case was numbered as GR Case No.126/2008. Thereafter the learned trial court took cognizance of offence under section 420 IPC against the accused person. The accused person entered appearance before the learned trial court on receipt of summons and thereafter charge under section 420 IPC was framed against the accused to which the accused pleaded not guilty.

10. During the trial, the prosecution examined as many as five witnesses. PW-1 is the informant. PW-2 and PW-3 are the witnesses to the hiring agreement of the vehicle and PW-4 is another person who was also consulted regarding the execution of the contract between the accused and PW-1, and PW-5 is the investigating officer.

11. The statement of the accused was recorded under section 313 Cr.P.C and the defence also led two witnesses DW-1 and DW-2. DW-1 is the accused himself. The defence projected a case that the amount taken was subsequently returned to the informant.

12. PW-1 in his deposition befo