The necessity for the person alleging deception to prove the delivery of the property and the lack of evidence regarding the amount given and the absence of authorization from the alleged victim influenced the court's decision.

1. - Being aggrieved by the judgment passed by the learned Addintional Munsiff and Judicial Magistrate, Merta date November 20, 1975 the complainant has preferred this appeal. By that judgment the learned Magistrate acquitted the accused for the offence under Section 420, Indian Penal Code.

2. Briefly state the prosecution case is that accused Sardar Khan was under a debt of Rs. 10,000/. to one Finn Nathmal Bhanwarlal. The complainant Gyanchand is the son of Nathmal and brother of Bhanwarlal Cyan Chand is said to have asked Sardar Khan to settle the account c that firm and Sardar Khan by way of settlement of the debt sold his four field to Smt. Pushpa wile of the complainant Cyan Chand. That it was later on discovered that cut of the four fields one had already been sold to one Mangla Gyanchand alleging himself to be the special power of attorney holder of his wife Smt. Pushpa lodged the complaint and a case Under Section 420, Indian Penal Cede was registered against the accused. The learnt Magistrate proceeded with the trial and held that the complainant has failed to prove that the delivery of the property, that is the payment of the amount of Rs. 10,000/- was made either by the complainant of Smt. Pushpa Devi his wife. In view of his finding the learned Magistrate acquitted the accused by the Judgment under appeal.

3. The learned Counsel for the appellant strenuously contended that Smt. Pushpa Devi a the wife of Gyanchand and when he was property representing her cause there was no reason for her to appear in the witness-box, and the learned Magistrate has legally erred in drawing an adverse inference against him. It has been submitted by the learned Counsel that Gyanchand could not be a partner of the firm Nathmal Bhanwarlal Nathma being his father and Bhanwarlal being his brother, he might have thought proper to deposit the amount in the firm in the name of his wife and therefore he should have been treated as the victim in the transaction and the learned Magistrate should not have discarded the case of the complainant. It has also been argued by the learned Counsel that the learned Magnate should have taken note of the statement of the accused that he sold the fields to Smt. Pushpa Devi.

4. I gave my anxious consideration to the material on the record. Smt. Pushpa Devi would have been the best person to show what amount was given by her to whom and under what deception. The authorisation of Gyanchand by Smt. Pushpa Devi has also not been proved. This is the settled position of law that the delivery of the property must be by the person who alleges to be deceived. In the present case, Smt. Pushpa Devi having not appeared in the witness-box and the accounts of the firm Nathmal Bhanwarlal not having been brought in the record it cannot be said as to what the transaction initially and subsequently was. The receipt of Rs. 10000/-being deposited by Gyanchand with the firm Nathmal Bhanwarlal also does not and place on the record.

5. Under these circumstances, I opine that this is not a fit case in which a judgment of acquittal of the learned Magistrate recorded with due reasonings and elaborate appreciation of the material should be interfered with. I, therefore, find no force in the appeal and it stands dismissed.Appeal dismissed.

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