State Vs Bias Dev

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Appeal No.173 of 2012 Date of Decision: 07.03.2026

__________________________________________________________________________ State of Himachal Pradesh …...Appellant Versus Bias Dev …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes. For the petitioner: Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General. For the Respondent: Mr. Vijay Singh Bhatia, Advocate.

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___________________________________________________________________________ Sandeep Sharma, J. (Oral)

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Instant criminal appeal filed under Section 378 of Code of Criminal Procedure, lays challenge to judgment of acquittal dated 22.09.2011 passed by learned Additional Sessions Judge, Ghurmarwin, District Bilaspur, Himachal Pradesh (Camp at Bilaspur), in Criminal Appeal No.19/10 of 2008 reversing the judgment of conviction and order of sentence dated 24.09.2008 passed by learned Judicial Magistrate First Class, Court No.1, Ghumarwin, District Bilaspur, Himachal Pradesh, in Case No.5/1 of 1999, whereby Court below, after having held respondentaccused (hereinafter ‘accused’) guilty of his having committed offence

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punishable under Section 420 of Indian Penal Code, sentenced him to undergo rigorous imprisonment for a period of two years and pay a fine to the tune of Rs.5,000/- and in case of default in paying the fine amount, the accused shall further undergo rigorous imprisonment for three months.

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Precisely, the grouse of the appellant/State, as has been highlighted in the appeal and further canvassed by Mr. Rajan Kahol, learned Additional Advocate General representing the appellant, is that learned First Appellate Court committed a grave error, while reversing the well reasoned judgment of conviction recorded by the learned trial Court. He states that bare perusal of evidence led on record by the prosecution reveals that prosecution proved beyond reasonable doubt that accused cheated the complainant as well as other students by not providing them Diploma Certificates for which he had taken fees to the tune of Rs.9,000/and Rs.11,200/- respectively. Mr. Kahol states that though prosecution witnesses turned hostile, but if the cross-examination conducted upon these witnesses is read in conjunction, it clearly emerges that accused had initially lured the complainant and other persons to take admission in his institute, but he, after his having received fee, closed the institute, as a result thereof future of the complainant and other persons was put in

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jeopardy. While referring to the statements of PW-2 Dineshwar, PW-4 Rakesh Kumar, PW-5 Mohinder Singh, PW-11 Sushil Dutt, PW-19 Rakesh Kumar and PW-20 SI Kewal Singh, Mr. Rajan Kahol, learned Additional Advocate General, attempted to argue that prosecution successfully proved the guilt of the accused beyond reasonable doubt, as such, there was no occasion, if any, for the First Appellate Court to reverse the well reasoned judgment of conviction recorded by learned trial Court.

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To the contrary, Mr. Vijay Singh Bhatia, learned counsel for the accused, while supporting the impugned judgment of acquittal recorded by the First Appellate Court, contended that none of the prosecution witnesses supported the case of the prosecution. While referring to the statement of PW-15 i.e. complainant, Mr. Bhatia, stated that afore witness himself admitted that he had voluntarily left the institute and the allegations levelled in the complaint lodged at his behest were not correct. He submitted that since none of the prosecution witnesses supported the case of the prosecution, there was no occasion, if any, for the learned trial Court to hold the accused guilty of his having committed offence punishable under Section 420 of Indian Penal Code. He stated that since in the case at hand, prosecution failed to prove the ingredients of Section 420 of Indian

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Penal Code, coupled with the fact that none of the prosecution witnesses supported the case of the prosecution, no illegality can be said to have been committed by the First Appellate Court, while acquitting the accused of his having allegedly committed offence punishable under Section 420 of Indian Penal Code.

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Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned in the judgment laid challenge in the instant proceedings, this Court sees no illegality or infirmity in the same, as such, no interference is called for. Having scanned the entire evidence led on record by the prosecution, this Court is not persuaded to agree with Mr. Rajan Kahol, learned Additional Advocate General, that prosecution was able to prove its case beyond reasonable doubt as none of the prosecution witnesses supported the case of the prosecution. However, learned trial Court, having taken note of crossexamination conducted upon prosecution witnesses, proceeded to infer that accused had initially lured the students to take admission in his institute and thereafter, without notice, closed the institute, as a result thereof, complainant as well as similarly situate persons suffered loss. PW-15 Rajesh Kumar (complainant), at whose instance FIR Ext. PW-15/A came to

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be lodged, did not support the case of the prosecution. In his crossexamination, he deposed that he had only filled the form but had not paid any fees. He deposed that police obtained his signatures on the blank paper. He deposed that he had voluntarily left the institute.

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PW-6 Ram Pal also did not support the case of the prosecution and was declared hostile. He deposed that he, after getting admission in electronics trade, voluntarily left the institute within two months. He admitted that till the time he remained in the institute, the instructor used to impart instructions to the students.

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PW-3 Hardiyal Snigh, whose building was hired by the accused to run the institute, did not support the case of the prosecution and was declared hostile.

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PW-1 Sanjeev and PW-10 Dharam Pal were also declared hostile as they did not support the case of the prosecution. However, PW-10, during his cross-examination, admitted that Mohinder Singh, Instructor of the electronic trade, had left the institute within 15-20 days, whereafter he did not return. He deposed that all the candidates, who joined the institute in different trades, had left the institute on account of

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their having joined the army. He admitted that since no candidate had taken admission in the institute, the same was closed.

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PW-12 Samarjit Singh, who was an instructor in the electrical trade, deposed that he had worked for ten months in the institute and salary was paid to him every month by the accused. He deposed that students, who were receiving training in the institute, had left the institute, as a result thereof the same was closed. In his cross-examination, he admitted that after September, 1998, there was no candidate left in the institute and it was closed in the month of October.

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PW-18 Sanjay Kumar was also declared hostile, but in his statement, he admitted that he himself left the institute. PW-14 Kapil Kumar, PW-16 Lal Chand and PW-18 Sanjay were also declared hostile as they stated that they had left the institute voluntarily after two months. Similarly, PW-17 and PW-18 also admitted that they left the institute voluntarily.

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Though Mr. Rajan Kahol, learned Additional Advocate General, placed heavy reliance upon the statements of PW-2 Dineshwar, PW-4 Rakesh Kumar, PW-5 Mohinder Singh, PW-11 Sushil Dutt, PW-19 Rakesh Kumar and PW-20 SI Kewal Singh to establish the guilt of the accused, but

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having carefully perused the statements made by aforesaid witnesses, this Court is not persuaded to agree with him.

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PW-2 Dineshwar admitted in his statement that accused had opened the institute and fixed the fees for driving course as Rs.9,000/- and other courses as Rs.11,200/-. He deposed that institute was duly recognized but after some time, the accused ran away and closed the institute. He admitted that he deposited Rs.2,725/- through receipt No.130 Ext.P-8, which he produced to the police. He deposed that he filled the admission form Ext.PW2/A. He deposed that police also took into possession the receipt Ext.P-8 vide seizure memo Ext.PW-1/C. In his crossexamination, he admitted that in the advertisement, it was mentioned that the institute was recognized. He admitted that he did not pay his entire fees of Rs.11,200/-. He also admitted that the instructors were employed by the accused.

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PW-4 Rakesh Kumar supported the case of the prosecution and stated that he had paid Rs.9,000/- in three installments to the accused, who issued receipts Ext.P1 to Ext.P-3. While stating that he had taken admission in the year 1998, he deposed that the accused had promised to

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provide training for driver’s course from ITI and further promised to issue a diploma, but he failed to do so.

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PW-5 Mohinder Singh, who was declared hostile, in his crossexamination, supported the case of the prosecution by stating that though he deposited Rs.1,500/- in the month of July, 1998 and Rs.1,500/- in August, 1998 and accused also issued receipts but did not provide the complete training nor issued Diploma. He admitted that in the month of November, 1998, the institute was closed. During cross-examination, he admitted that he had left the institute voluntarily in the month of August, 1998. He further admitted that accused issued driving license to him.

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PW-9 Mohinder Singh was an instructor in the electronics trade in the institute of the accused, who used to pay him Rs. 2,000/- and also issued an appointment letter. He deposed that he worked in the institute upto October, 1998. He admitted that accused paid him salary for 6-7 months and closed the institute. During cross-examination, he admitted that no student had taken admission in the electrical trade, as such, he used to visit Kuthera, Mallari to teach the students.

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PW-11 Sushil Dutt was also declared hostile as he did not

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support the case of the prosecution.

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PW-19 Rakesh Kumar stated that he got the admission in the electrical trade and paid Rs.2500/- to the accused. He deposed that after 2- 3 months, the institute was closed and no diploma was issued to him. During his cross-examination, he stated that 5-6 students also got admission in the electrical trade.

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Similarly, if the statements made by PW-7 Ashwani Kumar, PW-8 Achhar Singh and PW-11 Sushil Dutt are read in conjunction, it cannot be said that prosecution was able to prove its case beyond reasonable doubt. Otherwise also, there are major contradictions and inconsistencies in the statements made by the prosecution witnesses, as such, no much reliance could have been placed upon the same by learned trial Court, while ascertaining the guilt of the accused.

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Majority of the prosecution witnesses though admitted factum with regard to their having taken admission in the institute, but it also emerges from their statements that either they had not paid the full fess or they themselves had left the institute within two-three months. It has specifically come in the evidence that institute opened by the accused was subsequently closed due to there being no admissions. Till the time

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institute was opened, accused had employed instructors as is evident from the evidence.

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Having scanned entire evidence adduced on record by the prosecution, this Court is persuaded to agree with the findings returned by learned Appellate Court that there are material contradictions and inconsistencies in prosecution evidence and not much reliance can be placed upon the prosecution witnesses while ascertaining guilt, if any, of the accused.

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In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in C. Magesh and others versus State of Karnataka (2010) 5 Supreme Court Cases 645 , wherein it has been held as under:-

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“45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686: 2008(11) SCR 286 has held:-( SCC p.704, para 14)

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“14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy;..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.”

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46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “ no man is guilty until proven so,” hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses.”

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In the case at hand, accused has been charged for the commission of offence under Section 420 of Indian Penal Code on the allegations that he opened the institute, advertised it and invited applications from the candidates; received the fees; promised to provide facilities but failed to do so and after collecting the money closed the institute, thereby cheating the persons who had taken the admission in the institute. However, evidence adduced on record clearly reveals that accused opened the institute, advertised it and invited applications from the candidates. It also emerges from the evidence that the accused engaged the instructors for imparting training to the candidate in various trades like driving, electrical and electronics. Various candidates joined the institute and paid fees to the Simarjeet Singh, who issued receipts to them, but

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since majority of the candidates left the institute on account of their having joined the Indian army, accused had no option but to close the institute. No candidate had taken admission in electrical trade, as a result thereof instructor engaged by the accused in electrical trade i.e. PW-9 Mohinder Singh, used to visit Kuthera and Malari as no student had taken admission in the electrical trade in the institute of the accused. It has also come in the evidence that accused provided the facility of the bus, class rooms and he also employed instructors.

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Section 420 of Indian Penal Code provides that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. To invoke afore provision of law, there must be dishonest intention from the very beginning which is sine qua non to hold the accused guilty for commission of offence. Even if the allegations made in the complaint are accepted to be true and correct, the accused cannot be said to have committed any offence of cheating, especially when there is no evidence that he had dishonestly

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induced the complainant as well as other students who had taken admission in the institute opened by him. In the case at hand, accused not only opened institute but also provided required facilities as well as teaching staff. However, institute was subsequently closed for the reason that majority of the students had left the institute on account of their having been selected in army. The offence of cheating is established when the accused induces a person to deliver any property or to do or omit to do something, which he would not otherwise have done or omitted. However, in the instant case, offence of cheating never came to be proved by the prosecution beyond reasonable doubt. Cheating has been defined under Section 415 of Indian Penal Code which provides that whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything.

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In the instant case, accused, after having opened the institute, invited applications and thereafter, pursuant to the applications submitted by the complainant as well as similarly situate persons, offered them admissions in the driving and electrical trade. Complainant as well as other

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students attended the classes in the institute for some time, but they themselves subsequently left the institute for one reason or the other. Since there is ample evidence to suggest that accused had provided adequate staff and infrastructure, coupled with the fact that majority of the students had voluntarily left the institute, no offence under Section 420 of Indian Penal Code can be said to have been committed by the accused.

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Consequently, in view of the detailed discussion made herein above, this Court finds no illegality or infirmity in the impugned judgment of acquittal passed by the First Appellate Court, which appears to have been passed on the proper appreciation of facts and as such, same is upheld. Accordingly, present appeal fails and dismissed alongwith pending applications, if any. Bail bonds, if any, furnished by the accused stands discharged.

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March 07, 2026

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(sunil)

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(Sandeep Sharma), Judge

State v. Bias Dev

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State v. Bias Dev

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