TMI Blog2004 (2) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... v Krishan in the presence of Teja Singh, son of Sajjan Singh. The complainant wanted that the payment thereof be made in cash, but accused Devender assured him that as he was a reputed dealer in the sale and purchase of shares, and his business ran into lacs, the payment by cheque would be more in order. The complainant acting on his representation accepted a post dated cheque No.447131 for a sum of ₹ 1,69,000 drawn on New Bank of India, Moga, and issued by accused Mala Singla, and was payable on 8th August, 1992. The complainant also delivered 7000 shares and in token of having received the same, Devender executed a receipt Ex.PW 3/B. When the cheque was presented for encashment on 8th August, 1992, it was dishonoured on the ground that the payment had been stopped by the drawer and this fact was conveyed to the complainant vide memo Exh. PW 3/C dated 8th August, 1992. As the subsequent efforts to recover the money from the accused proved futile, the complainant filed the complaint in the Court of the Sub-Divisional Judicial Magistrate, Moga. After recording the preliminary evidence, both the accused were summoned to face trial for offences punishable under Sections 420 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived delivery of the shares. It was further noted that the accused Devender took the stand about the agreement to transfer the shares by 5th August, 1992. If that was so, the High Court observed, there was no necessity for directing the bank to stop the payment on 1st August, 1992. There was no reason whatsoever for the accused to apprehend any foul play at the hands of the complainant prior to 5th August, 1992. The stand taken by the accused Mala Singla was at a great variance with that of her husband Devender Kumar Singla. According to accused Mala she had gone out to her parental house leaving some blank cheques signed and when she returned on 30th July, 1992 she found the cheque book missing and therefore directed the Bank to stop payment. This was at a complete variance with the stand of Devender who admitted the transaction between him and the complainant. Accused Mala totally denied any such transaction. The position regarding transactions in the bank account of accused Mala was also noticed by the High Court, which held that the accusations so far as the accused Devender were fully established, but the role of accused Mala was not fully established to bring home the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the full details regarding the shares, that does not in any manner corrode the credibility of his case. The plea that an advance receipt was given was never taken during trial and in any event no suggestion in that regard was given to the complainant who was examined as PW-3, during cross examination. In order to appreciate the rival submissions, it would be necessary to consider on the background of the factual position as to whether offence punishable under Section 420 IPC is made out. Section 420 deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is dishonestly induced 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 and which is capable of being converted into a valuable security. Section 415 defines cheating . The said provision requires, (i) deception of any person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the number of shares etc., it was indirectly suggested that there was no delivery of shares. When there was definite assertion about delivery of shares evidenced by a receipt, the inability of the complainant to tell number of shares is not sufficient to discard his case. It only establishes that the complainant did not remember the number of shares. The evidentiary value of the receipt is not in any manner disproved by the inability of the complainant to tell the numbers. Further, what appears to have weighed with the trial Court is that the transaction allegedly took place on 27.7.1992. Significantly there is also no suggestion to the complainant during cross-examination by the accused that the transaction was done on 27.7.1992 and not on 7.8.1992 as claimed by the complainant. Merely because the accused stated that he had not received the shares or that the transaction took place on 27.7.1992 in his examination under Section 313 of Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence. It is only the accused's stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice. Abs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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