A complainant alleged fraud via a subsequent release deed over property sold to him under an unregistered agreement; after acquittal upheld by appeal, the High Court dismissed his revision petition, upholding that an unregistered agreement to sell conveys no ownership and no error justified interfering with the acquittal.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Revision Petition No. 1434/2023
Kanhaiyalal S/o Dhanraj Chipa, Aged About 66 Years, R/o- Pur, Dist. Bhilwara, At Present B-63, Khamor House, Devriya Balaji Road, Sanjay Colony, Bhilwara
----Petitioner
Versus
----Respondents
For Petitioner(s) : Mr. Nikhil Ajmera For Respondent(s) :
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order
REPORTABLE 03/01/2024
The petitioner has filed the present criminal revision petition being aggrieved by the judgment dt. 27.07.2023 passed by the learned Additional Sessions Judge No.1, Bhilwara, in Appeal No. 123/2019 whereby, the appellate court rejected the appeal and upheld the judgment dated 07.04.2018 passed by Chief Judicial Magistrate, Bhilwara, whereby, the learned Judge acquitted the respondents No.2 & 3 from charges for offence under Section 420 read with 120B IPC.
Briefly, the facts of the case are that the complainant submitted a complaint before the Chief Judicial Magistrate, Bhilwara stating therein that the respondents No.2 & 3 committed
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fraud with the petitioner by creating subsequent release deed for the same property which was sold to him in the year 1982.
The complaint was sent to the concerned police station under Section 156(3) Cr.P.C. and and on this report, the FIR No. 537/2008 was registered for offence under Sections 420, 120B IPC and the police started investigation. After investigation, the police filed challan against the respondents No.2 & 3. Thereafter, charges were framed against the respondents for offence under Section 420, 120B IPC. The accused respondents No.2 & 3 denied the charges and claimed trial.
The prosecution in support of its case examined ten witnesses and various documents were exhibited. The statement of accused under Section 313 Cr.P.C. was recorded, who produced two witnesses in his defence.
After conclusion of trial, the court of Chief Judicial Magistrate acquitted the respondents No.2 & 3 from offence under Sections 420 read with 120B IPC vide judgment dated 07.04.2018. Feeling aggrieved, the petitioner preferred an appeal before the learned Additional Sessions Judge No.1, Bhilwara however, the same came to be dismissed by the appellate Court vide judgment dated 27.07.2023.
Learned counsel for the petitioner argued that the Courts below without going through the entire record and evidence acquitted the respondents for 420, 120B IPC. It is submitted that from the evidence led by the petitioner, it is evident that the
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property in question was already sold to the petitioner in the year 1982 by the accused Moolchand. It is further argued that the courts below have discarded the evidence of petitioner on the ground of insufficient stamp duty and non-registration of the documents, whereas, issued of registration of documents has no relevancy while deciding the criminal case. Thus the judgment of the Courts below are liable to be set aside and the matter may be remanded back to the trial court for passing fresh order.
I have heard the counsels for the parties and gone through the material on record.
From the evidence on record so also finding arrived by the learned courts below, it appears that the accused respondents have been acquitted on the ground that the document relied upon by the petitioner complainant Ex.P/2 is only an agreement to sale on a stamp paper of Rs.5/- which is not even registered. It is settled proposition of law that an agreement to sell, which is an unregistered document does not confer any right of ownership in favour of any person in the light of the law laid down by Hon'ble Supreme Court of India in Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana and Anr., reported in (2012) 1 SCC 656, wherein it has been held that no immovable property can be legally transferred or conveyed through agreement to sell, general power of attorney or 'will' and such property can be legally and lawfully transferred/conveyed only by registered deed of sale/conveyance.
Hon'ble Supreme Court in Mohd. Ibrahim and others Vs. State of Bihar and others reported in 2009(4) RCR (Crl.) 369
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observed as follows:-
"13. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (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 (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security)."
In the instant case, after the execution of alleged, no suit for specific performance was filed by the petitioner complainant with regard to registration of the sale deed in his favour, within a period of three years of the execution of said agreement to sell. The courts below came to the conclusion by way of detailed and speaking order that the prosecution has failed to prove the charges against the accused respondents beyond reasonable doubt.
In the light of aforesaid discussion, the petitioner has failed
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to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge.
In the case of 'Mrinal Das & others v. The State of Tripura, : 2011(9) SCC 479,' decided on September 5, 2011, the Hon'ble Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
“An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.
Similarly, in the case of State of Rajasthan v. Shera Ram alias Vishnu Dutta, reported (2012) 1 SCC 602,' the Hon'ble Supreme Court has observed as under:--
“A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.”
There is a very thin but a fine distinction between an appeal
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against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion is that there is no substantial difference between an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the trial Court is a reasonable one and the conclusion reached by it had grounds well set out on the materials on record, the acquittal may not be interfered with. Learned counsel for the petitioner has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge.
In the facts and circumstances of the case, the present criminal revision petition has no substance and the same is hereby dismissed.
(MANOJ KUMAR GARG),J
36-BJSH/-
2 issues framed by the court
Whether the acquittal of respondents for Sections 420 and 120B IPC offences could be reversed in a criminal revision petition.
Whether an unregistered agreement to sale confers ownership rights sufficient to support a cheating charge.
Colour shows how this judgement treated each authority
Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana and Anr.Relied on¶29
(2012) 1 SCC 656 · Who else cites this
Mohd. Ibrahim and others Vs. State of Bihar and othersRelied on¶30
2009(4) RCR (Crl.) 369
Mrinal Das & others v. The State of TripuraRelied on¶41
: 2011(9) SCC 479, · Who else cites this
State of Rajasthan v. Shera Ram alias Vishnu DuttaRelied on¶43
(2012) 1 SCC 602,' · Who else cites this
2 provisions across 1 enactments
Kanhaiyalal S/o Dhanraj Chipa
State of Rajasthan
Chothmal S/o Dhanraj Chipa
Moolchand S/o Dhanraj Chipa
Manoj Kumar Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
