Allowed

Anil Kumar Das v. the State of Assam and Anr.

Gauhati HC5 Mar 2019Crl.Rev.P./396/2011

Case brief

AI extract

What is this about?

This revision petition challenged an order convicting the petitioner for cheating under Section 420 IPC. The High Court held that mere failure to pay the balance amount does not constitute cheating without proof of dishonest intent. The Court quashed the conviction and acquitted the petitioner.

What did the court decide?

The order of the appellate court is quashed. The accused is acquitted of the charge. The petition is disposed of.

Anil Kumar Das Vs the State of Assam and Anr. — Cheating and Forgery | Gauhati HC (2019)

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GAHC010181152011

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Rev.P. 396/2011

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Sri Anil Kumar Das, Son of late Nareswar Das, Bijulibari village, P.S. Sipajhar, Darrang district(Assam).

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Petitioner.

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-Versus-

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(1) State of Assam.

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(2) Sri Durlav Saharia,

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Son of late Mukta Ram Saharia, Mangaldoi village,

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P.S. Mangaldoi(Assam).

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Respondents.

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For the petitioner : Mr BM Choudhury. Advocate.

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Page No.# 2/6

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For the State : Mr MP Goswami, APP. For respondent no.2 : None Date of hearing and judgment: 5.3.2019.

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BEFORE

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HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

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JUGEMNT AND ORDER (ORAL)

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Heard Mr BM Choudhury, learned counsel for petitioner and Mr MP Goswami, learned Addl. Public Prosecutor for the State. None appears for the respondent no.2.

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(2) Petitioner faced trial in the court of the learned JMFC, Mangaldoi in CR case 3516/2007 u/s 420 of the IPC filed by the respondent no.2.

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(3) According to respondent no.2, he sold his canteen at the Mangaldai Polyclinic to petitioner on executing an agreement at Rs 60,000 and the petitioner paid Rs 14,000 on the date of the agreement and undertook to pay the remaining Rs 46,000 after one month but after expiry of the period when petitioner did not pay the amount he filed the complaint against him for cheating and the learned trial court took cognizance of the offence u/s 420 of the IPC.

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(4) Respondent no.2 examined four witnesses. Defence did not

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examine anyone. The plea of the defence is of total denial. The learned trial court found and held the petitioner guilty of the offence u/s 420 of the IPC and sentenced him to s/i for 6 months with fine of Rs 1,000 and in default to s/i for 5 months after concluding trial by the order dated 31.3.2009.

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(5) Accused filed an appeal against the said order before learned Addl. Sessions Judge(FTC) Darrang and the learned appellate court dismissed the appeal by the order dated 13.9.2010 in criminal appeal 10(D2)/2009. Hence this revision.

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(6) Heard submissions of learned counsel for both parties and gone through LCR.

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(7) On examination of the evidence on record it is found that the complainant has examined himself as PW1, one Md. Mahmood Ali as PW2, one Sri Jyoti Prasad Sarma as PW3 and one Md. Rockybuddin Ahmed as PW4. Their evidence is similar. They stated about the execution of the agreement between the parties on 28.3.2007 wherein it is stated that as the accused was desirous of buying the canteen run by the complainant, both parties entered into a written agreement, according to which the accused paid Rs 14,000 and will pay the remaining Rs 46,000 within a month of the execution of the agreement.

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(8) It is in their evidence that even after the period of one month as the accused did not pay the amount the complaint was filed. They made a demand for the balance amount but it was not responded. Their evidence is totally cryptic ~ they did not say when they went to demand the amount and what is the way of the accused to respond to the demand. There is no proper evidence how the accused refused to pay the amount.

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(9) In the evidence the witnesses exhibited an agreement vide exhibit 1 entered into between the parties. Though PW1 said about sending of demand notice, it was not duly proved as it was a duplicate copy. PW1, PW3 and PW4 all of them stated the agreement was made with a good intention and the accused duly paid Rs 14,000. That being so there can be no occasion to hold that the agreement is executed by the petitioner deceptively, dishonestly. At best, a civil liability of the parties can be made out.

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(10) To prove an offence u/s 415 of the IPC the prosecution will have to prove that there was fraudulent and dishonest intention on the part of the accused at the time of executing agreement or on such inducement the property was delivered to him. The learned trial court was of the

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view that accused entered into a false agreement with the complainant thereby induced to deliver his business establishment in favour of the accused, but this finding is contrary to the evidence on record that was discussed above, and persuaded by the statement of the complaint that the accused did not pay the amount even after expiry of the stipulated period, held that an element of cheating is there.

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(11) The ingredients required to constitute an offence under Section 415 of the IPC are: (1) There should be fraudulent or dishonest inducement of a person by deceiving him, (2)(a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived, and (3) in cases covered by (2)(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

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To hold a person guilty of cheating it has to be shown that his intention was dishonest at the time of making the promise.

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(12) In the case at hand there is no fraudulent or dishonest intention on the part of the accused at the time of executing the agreement and

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the mere failure to repay the amount does not amount to cheating.

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(13) Honourable Supreme Court, in (2000) 4 SCC 168 and (2004) 2 SCC 731, held that for construing an offence u/s 420 of the IPC it is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up the promise subsequently cannot be presumed as an act leading to cheating.”

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(14) In this case the complaint itself is based upon surmises and assumptions and the same cannot be a legal basis to convict u/s 420 of the IPC as held by both the courts below. That being so this court is of the opinion that the conviction u/s 420 of the IPC is unsustainable. Accordingly the order of the learned appellate court is quashed and set aside. The accused is acquitted of the charge. The petition is disposed of. The LCR be sent down.

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JUDGE

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Na/

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Comparing Assistant

Anil Kumar Das v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Anil Kumar Das v. the State of Assam and Anr.

Case brief

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