Back
1996 Supreme(Raj) 752
Rajasthan High Court
Honble M.A.A. KHAN,J
Roshan Lal - Appellant
Versus
State of Rajasthan - Respondents
S.B.Criminal Revision Petition No. 227 of 1992
Decided On : December 12, 1996
Dinesh Kala, Advocate for A.K. Gupta, Advodate, for the Petitioner S.S. Rathore, Public Prosecutor for State-Respondent
Headnote:Penal Code, 1860 – Section 420 & 467 – Petitioner mortgaged five agricultural holdings with the bank and out of it he sold two holdings to Jagdish Prasad – The mortgage – deed was not in accordance to section 59 of T.P.Act and section 68 of the Evidence Act – There was civil litigation in between the parties– And after 5 years Jagdish Pd. filed the criminal complaint – Jagdish Pd. is and remains in possession of the two holding – Mere non mention of the fact in sale deed that the holdings are mortgaged, will not amount to concealment within the meaning of the word used in explantation to section 415 I.P.C – No case made out.
The explanation below section 415 certainly says that concealment of a fact may amount to inducement.A fact which can be known by a man with due deligence and efforts which a prudent man is expected to show in such matters, cannot be said to have been fraudulently or dishonestly concealed. A plain reading of Section 415 I.P.C. shows that fraudulent or dishonest inducement by a person to the other is the main ingredient of the offence of cheating. The expression ``dishonestly has been defined in Section 24 I.P.C. as ``whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing `dishonestly. Similarly, the expression ``fraudulently has been defined in Section 25 as a person is said to do a thing fraudulently if he does that thing with intent to defraudbut not otherwise. To make out an offence of cheating the accused should be proved to have made to the complainant a statement which heknow to be false statement. The element of dishonest or fraudulent intention on the part of the accused should be there in his statement. (Para 7)
(2) The petitioner was the recorded tenant of khasra plot Nos. 1332 admeasu- ring 3 bighas. 17 Biswas and 1333 admeasuring 4 Bighas 19 Biswas situate at weir Hadain Patti Distt-Bharatpur. It was alleged that the petitioner had mortgaged the said land, alongwith some other lands with the State Bank of Bikaner and Jaipur at Bharatpur on 13.11.1969 to secure a loan of Rs. 7,000/-. However, on 26.5. 1971 the petitioner sold the afore said land to PW-3 Jagdish Prasad for a consideration of Rs. 10,500/- and also delivered the possession thereof to the purchaser. It appears that the State Bank of Bikaner and Jaipur had unsuccessfully proceeded against the petitioner in the year 1972 -73 for recovery of its loan. In the year 1976 PW-3 Jagdish Prasad filed a report with police Station. Weir alleging therein that the petitioner had concealed the fact of his having mortgaged the land to the Bank before selling the same to him. On the basis of the report of PW- 3 Jagdish Prasad a case under section 420 I.P.C. was registered against the petitioner and one Ratan Lal Patwari (since deceased). Both, were charge sheeted. Since Ratan Lal Patwari died during the pendency of the case, the learned Magistrate tried the present petitioner for the offences under Sections 420 and 467, found him quilty of the same and convic- ted and sentenced him there-for in the manner stated above.
(3) The main contention of Mr. Dinesh Kala, the learned counsel for the petitioner, is that the suit brought by the Bank against the petitioner had failed on theg round that no mortgage was proved to have been executed by the petitioner in favour of the Bank. It was further submitted that in order to secure the loan taken by the petitioner from the Bank other agricultural holdings has been mortgaged by the petitioner with the Bank and therefore, under these circumstances no dishonest or fraudulent intention in selling the land to PW-3 Jagdish Prasad can be attributed to the petitioner and he cannot be said to have committed the offence under section 420 I.P.C.The learned counsel further submitted that since the petitioner had not induced PW-3 Jagdish Prasad to alter, amend or modify any valu- able security he cannot be said to have committed offence under section 467 either.
(4) The learned public prosecutor however, submitted that the two courts below have concurrently held that the petitioner had cheated PW-3 Jagdish Prasad by inducing him to deliver a sum of Rs. 10,500/- on making a false representation that the land in question was not mortgaged with anybody. It was submi- tted that the concurrent findings of fact should not be disturbed by this Court.
(5)Ordinarily this court in exercise of its revisionary powers u/s 397 Cr.P.C. does not interfere with the concurrent finding of fact recorded by the Courts below unless, of course, it is observed by this court that such a finding is not based on legal evidence or that the inferences drawn from the legal evidence, brought on the record of the case, do not flow from such evidence.
(6) In the instant case I find that it is not at all in dispute that the land of khasra Nos. 1332 and 1333 was sold by the petitioner to PW-3 Jagdish Prasad on 26.5.1971 for a consideration of Rs. 10,500/-. It is also not indispute that at the time of executing the sale deed in favour of PW-3 Jagdish Prasad the petitioner was the
recorded tenant of the land in question and was thus having transferable rights therein. The only question for consideration is whether at the time of the transfer of the land the petitioner had induced PW-3 Jagdish Prasad to deliver the sale -consideration to him after making a dis-honest or fraudulent concealment of the fact of the land standing mortgaged wit
