Dismissed

Shiv Nandan Mantri v. Raghunandan

Rajasthan HC11 Dec 2024CRLR/1216/2006

Case brief

AI extract

What is this about?

Complainant sought revisional quashing of acquittal under Sections 404, 406, 420, 120B IPC and Arms Act over sale of ancestral guns. Court held essentials of cheating were not proved and found no illegality or perversity in the trial court's judgment.

What did the court decide?

None; impugned acquittal confirmed and revision petition dismissed.

Shiv Nandan Mantri Vs Raghunandan — Cheating and Forgery | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Revision Petition No. 1216/2006

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Shiv Nandan Mantri S/o Late Shri Mali Ramji Mantri, R/o Ward No.9, Tehsil Bisaoo, District Jhunjhunu (Raj.).

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----Complainant-Petitioner

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Versus

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State of Rajasthan through PP

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..........respondent

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Raghunandan S/o Shri Maliram Mantri

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Bihari Lal S/o Shri Jesram Sharma, R/o Ward No.7, Tehsil Bisaoo, District jhunjhunu (Raj.)

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----Accused-Respondents

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For Petitioner(s)	: Mr. Mahendra Sharma
For Respondent(s)	: Ms. Poonam Mishra &
	Dr. Ramdeo Arya
For State	: Mr. Amit Punia, PP

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HON'BLE MR. JUSTICE GANESH RAM MEENA

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Order

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11/12/2024

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This criminal revision petition under Section 397 Cr.P.C r/w Section 401 Cr.P.C has been preferred by the complainantpetitioner for quashing and setting aside of the judgement dated 28.08.2006, passed by the Court of Additional Chief Judicial Magistrate, Jhunjhunu, (Raj), whereby the learned Trial Court acquitted the accused-respondents No.2 & 3 from the charges under Sections 404, 406, 420, 120B of IPC and Sections 21/25 of the Arms Act.

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Brief facts of the case as placed before this Court are that the complainant-petitioner filed a complaint in the Court of Additional Chief Judicial Magistrate, Jhunjhunu, (Raj) on

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28.01.1991. The contents of the complaint provide that the father of the petitioner, Shri Maliram died on 04.09.1986. Thereafter, a partition between the petitioner and the accused-respondent No.2 took place on 24.07.1987. At the time of partition, respondent no.2 stated that he had submitted two guns registered in the name of their father at the Police Station. However, in the year 1989 it was discovered that the rifles were actually still in the custody of respondent no. 2 and that he had further sold the rifles to a 3rd person; when in fact he was required to deposit the guns at the Police Station after the death of their father. After the death of Mailram, an incident had taken place where one person wound up deceased and for this reason, the accused-respondent No.2 with malafide intention sold the guns in order to evade responsibility.

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On the said complaint, the learned Trial Court forwarded the matter to Police Station Bisaoo for further investigation and an FIR no. 5/1991 was registered at Police Station Bisaoo. Upon investigation, the police submitted the charge-sheet before the learned Trial Court. The learned Trial Court then went on to frame charges under Sections 404, 406, 420, 120B IPC and Sections 21/25 of the Arms Act. However, the accused-respondent No.2 denied the charges and demanded further investigation. The Prosecution got examined 6 witnesses and also exhibited 4 documents in support of their case. Accused’s statements recorded under Section 313 Cr.P.C were also taken by the learned Trial Court.

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The learned Trial Court framed an issue as to whether the accused-respondent No.2 sold the rifles without the

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permission of the competent authority. The Court then heard both the parties on the issue and conducted the trial, upon conclusion of trial, the learned trial Court acquitted the accused-respondents No.2 & 3 for the said offences vide order dated 28.08.2006.

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Being aggrieved by the impugned judgment dated 28.08.2006, the present complainant-petitioner preferred this criminal revision petition.

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The learned counsel for petitioner submits that during investigation the police found that the matter was out of their jurisdiction, however, they still submitted the charge-sheet before the learned Trial Court. He further submits that majority of the witnesses in their statements before the learned Trial Court stated that the guns were in possession of respondent no. 2 and that he sold the same without any authority, but the learned Trial Court did not take those statements into consideration and solely relied on the statement of the accused-respondent, which is not in line with the law of evidence. He further submits that the learned Trial Court did not take into consideration the criminal offences against the accused-respondents and instead made the question of possession of the guns its only focal point and fixated on the question as to whether the same were sold out with or without any authority. He further submits that Ex.P-2 is proof of the existence of a sale deed and hence the factum of a sale; according to Ex.P-4, it is clear that the possession of the guns was with respondent No.2 when instead it should have been in the custody of the Police. He further submits that the guns were a part of the ancestral property of the petitioner as well as respondent No.2 and hence respondent No.2 alone had no right to dispose off the

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same, however the learned Trial Court ignored this aspect and ordered that the possession of the guns will remain in the custody of respondent No.2. He also submits that it is clearly mentioned in the Arms Act that after the death of the licensee of arms, the arms concerned would have to be deposited at the nearest police station, however, in the present case the accused-respondent violated the aforesaid provision of the Act. The Counsel submits that the learned Trial Court passed the impugned order in ignorance of the established principles of law, the lower Court’s approach is submitted to be absolutely arbitrary, illegal, unjustified and the order dated 28.08.2006 is prayed to be quashed and set aside.

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Considered the submissions made at bar and also perused the judgment under challenge as well as the other relevant records placed before this Court.

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The question that comes up for consideration in pursuance of the revision petition is whether the learned trial Court has made an error which would amount to a patent defect as to the legality or regularity of the order made in the case concerned.

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The trial Court had to decide on the issue as to whether the accused-respondent No.2 had in fact dishonestly misappropriated and sold the guns despite it being an ancestral property, with the intention of inducing other persons to buy it and whether by selling it, hatched a criminal conspiracy to cause damage to the other heirs of Maliram.

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Before adverting to the facts of the case, it is essential to lay out the requisite essentials to be proved in order to make

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out the offence of cheating, as provided u/s 420 IPC. The essential ingredients of the offence of "cheating" are as follows:-

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(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;

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(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and

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(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. 11. Thus, to constitute an offence under Section 420 IPC, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived either to deliver any property to any person, or to make, alter or destroy wholly or in part a valuable security. The ingredient of ‘cheating’, as defined under Section 415 of the IPC, is the existence of a fraudulent or dishonest intention of making initial promise or representation thereof, from the very beginning of the formation of a contract. If we carefully consider the contours of the penal jurisprudence with respect to the offence of cheating, the criminal offence under Section 420 read with Section 415 of the IPC is not established in the absence of deception by making false and misleading representation, dishonest concealment or any other act or omission, or inducement of the complainant to deliver any property at the time of the contract(s) being entered into.

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The law pertaining to the offence of cheating as under the Indian Penal Code has been elucidated upon by the Hon’ble Supreme Court in a plethora of judgments. Some of these judgments have been mentioned hereunder: Lalit Chaturvedi & Others v. State of Uttar Pradesh & Another dated 06-022024; Rekha Jain vs State of Karnataka, (2022) 18 SCC 174; Mohammed Ibrahim and Others v. State of Bihar and Another (2009) 8 SCC 751; Prof. R.K. Vijayasarathy and Another v. Sudha Seetharam and Another (2019) 16 SCC 739 .

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It is thus paramount that in order to attract the provisions of Section 420 IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence, i.e., (i) the deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea or dishonest intention of the accused at the time of making the inducement. There is no disavow in saying that for the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made.

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The Hon’ble Supreme Court in the case of Mariam Fasihuddin & Anr. v. State by Adugodi Police Station & Anr.

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(2024 INSC 49) has made a relevant observation in this regard, which is as follows:-

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“12. It is well known that every deceitful act is not unlawful, just as not every unlawful act is deceitful. Some acts may be termed both as unlawful as well as deceitful, and such acts

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alone will fall within the purview of Section 420 IPC. It must also be understood that a statement of fact is deemed ‘deceitful’ when it is false, and is knowingly or recklessly made with the intent that it shall be acted upon by another person, resulting in damage or loss. ‘Cheating’ therefore, generally involves a preceding deceitful act that dishonestly induces a person to deliver any property or any part of a valuable security, prompting the induced person to undertake the said act, which they would not have done but for the inducement.”

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A similar view has been taken by various Courts across the country, such as in the cases of Archana Rana v. State of Uttar Pradesh and Another (2021) 3 SCC 751, Deepak Gaba and Others v. State of Uttar Pradesh and Another (2023) 3 SCC 423 and Mariam Fasihuddin and Another v. State by Adugodi Police Station and Another (2024 SCC OnLine SC 58); A.M. Mohan v. The State represented by SHO and another (2024 INSC 233) dated March 20, 2024 .

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Having fully addressed the contours of the offence of ‘cheating’, we now advert to the facts of the instant case to appreciate whether the allegations made by the petitioner, are sufficient to prima facie establish that: (i) the respondent no. 2 has deceived the petitioner or; (ii) petitioner was induced with dishonest intentions or; (iii) such inducement was for the delivery of any property or valuable security; and (iv) as a result of such an act, petitioner has suffered some damage or injury.

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Dishonest Inducement is a 'Sine Qua Non' to attract Section 420 IPC. The provision elucidates that an act marked by fraudulent or dishonest intentions will be categorised as ‘cheating’ if it is intended to induce the person so deceived to deliver any

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property to any person, or to consent that any person shall retain any property, causing damage or harm to that person.

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For the offence of cheating, it must be shown that the person who cheated was dishonestly induced to deliver the property to any person and a dishonest intention must be shown on the part of a person accused of such an offence. In the present case, P.W-5 Dharamvir Singh, who is the buyer of the guns, has stated that in 1986-87 he had purchased a rifle 32 bore and a 12 bore double barrel from Raghunandan. He knew Raghunandan as his friend, Madhusudan's father. He had discussed the prospect of buying the weapons with Madhusudan. The witness also stated that he had himself met Maliram and had in fact bought the weapons on his advice. Thus, according to witness PW.5 Dharamvir Singh, on the basis of power of attorney, he had purchased the said gun of Maliram from Madhusudan and Maliram himself had asked him to purchase the weapon. This essentially implies that the original owner of the guns, Maliram was aware of the factum of the prospect of the guns being sold by his son, Raghunandan.

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More importantly, upon a perusal of the order of the trial Court, it is perceivable that the prosecution has not been able to prove that the concerned sale was made on the date mentioned in respect of the two guns sold to Dharamveer by accused Raghunandan. It is not proved when and where the sale deed (Exhibit P.2) was seized. The list of the said guns was not produced before the court, which is the main document. In his cross-examination, the complainant has admitted that the will made by his father in his favour was cancelled on 21.01.1986. The

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above facts are indicative of the nature of relationship of the complainant with his father. The statements of any member of the complainant side have not been produced before the court, which can be deemed necessary to prove the fact that the accused had in fact informed the complainant about the deposition of the guns with the police.

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In light of the factual matrix and the observations made by the court below, it is apparent that the complainant and the prosecution have failed to make out the requisite essentials required to be proved to bring home charges u/s 420 IPC. This court, after going through the prosecution evidence, finds nothing to suggest that the accused-respondent No.2 dishonestly induced the complainant-petitioner to deliver any of his valuable property. Rather, the facts suggest that the accused-respondent No.2 inherited the arms upon the death of his father. Further, the complainant-petitioner never had possession of the arms to begin with, thus he could not have possibly been induced to deliver the same. The reasoning behind the same is quite simple, one cannot be induced to deliver something to another, that he never had with himself in the first place. The legal principle of ‘no one can give what he has not’ extracted from the latin maxim ‘nemo dat quod non habet’, though mostly applicable to cases pertaining to transfer of ownership of property, can also be referred to in the instant case considering the momentous underlying effect and rationale behind the said principle.

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At this stage it is also pertinent to make a mention of the law pertaining to revision. The Hon’ble Apex Court in a multitude of cases including K. Ravi v. State of Tamil Nadu and

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Anr. (2024 INSC 642); Ballu @ Balram @ Balmukund and Anr v. The State of Madhya Pradesh (2024 INSC 258) has adjudicated on the scope of interference and exercise of jurisdiction by the High Courts u/s 397 CrPC (now 438 BNSS). The dictum as laid down is that revisional jurisdiction shall be exercised where the exercise of revisional power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts. The High Court, under statutory obligation, ought to be loath in interfering with the decision of the lower Court, merely on hypothesis, imagination and far-fetched reasons which in law amount to interdicting the trial against the accused person. Thus, self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the Court in the face.

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It is thus trite law that Section 397 of the Code vests the Court with the power to call for and examine the records of an inferior Court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to only set right a patent defect or an error of jurisdiction or law. There has to be a well founded error and hence it will not be appropriate for the Court to scrutinise an order, which upon the face of it is a token of careful consideration and appears to be in accordance with law. If we probe into the well established principles of criminal jurisprudence in regard to the law on revision in criminal cases, it emerges that revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous or there is no compliance with the

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provisions of law or the finding recorded is based on no evidence or the material evidence is ignored or Judicial discretion is exercised arbitrarily or perversely. The High Court should not unduly interfere.

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In my opinion, the learned trial court has appreciated the complete evidence and no illegality or perversity or any finding of fact contrary to record has been pointed out by the counsel for the petitioner.

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In such a situation, the impugned order dated 28.08.2006, passed by the Court of Additional Chief Judicial Magistrate, Jhunjhunu, (Raj) is worthy of being confirmed as being in accordance with law, as the same does not suffer from any illegality or perversity.

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Accordingly, this revision petition is dismissed as not having the force of law.

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(GANESH RAM MEENA),J

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SHARMA N.K., DY, REGISTRAR/19

Shiv Nandan Mantri v. Raghunandan

Case brief

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Shiv Nandan Mantri v. Raghunandan

Case brief

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