TMI Blog2021 (7) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... (one of the petitioners) received the said sum of money from PW-1 assuring him that he would arrange a government job for his brother. The learned trial court has rightly held that the facts of the case do not attract the provisions of Section 138 NI Act because in bringing the charge under NI Act the procedures prescribed thereunder have to be followed. In order to constitute an offence under Section 420 IPC, it has to be essentially proved that the accused has committed cheating within the meaning of Section 415 IPC and by such cheating has dishonestly induced the persons so cheated to deliver any property to the accused or to any person, or to make alter or destroy the whole or any part of the valuable security or anything which is signed or sealed, and which is capable of being converted into a valuable security - Clearly in this case the allegations which have been brought against the petitioners are that with a fraudulent intention they allured PW-1 with a government job for his brother and dishonestly induced him to pay ₹ 1,10,000/- to them and thereby committed the offence of cheating punishable under section 420 IPC. In the case of HRIDAYA RANGAN PD. VERMA AN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 days [2] By means of filing this criminal revision petition the petitioners have challenged their conviction and sentence, as aforesaid. [3] The factual background of the case is as under: Sri Balaram Saha, Son of Sri Ranjit Saha of Sabroom lodged an FIR against the petitioners with the Officer in Charge of Sabroom police station on 14.09.2014 alleging, inter alia, that in the year 2011 he came to know accused petitioner Aswini Debbarma when said Aswini Debbarma was posted as a teacher in Baishnabpur Mogpara High School at Sabroom where the informant had a bakery. Said Aswini Debbarma used to live in the house of Tapan Bhowmik on rent and at that time he used to visit the bakery of the informant frequently. In that connection they had developed a good relationship. In the course of a parlance with the informant, accused petitioner Aswini Debbarma came to know from the informant that he had several brothers one of whom had done post graduation who was unemployed. Said Aswini Debbarma then told the informant that he had a friend in Raj Bhavan at Agartala who managed government job for many unemployed persons in exchange of money and he told the informant tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter to police by lodging the said FIR. [4] Based on his FIR, Sabroom PS case No. 61 of 2014 dated 14.09.2014 under sections 420 read with section 34 IPC was registered against the petitioners and the case was taken up for police investigation. [5] During investigation, police Sub Inspector Khokan Saha [PW-8] visited the place where the alleged agreement between Subhash Debbarma and informant Balaram Saha was executed on a non judicial stamp paper. He seized the said agreement by drawing up a seizure list signed by the parties [Exbt.4]. The Investigating Officer also enquired about the cheques allegedly drawn by Subhash Debbarma and seized the photocopies of those cheques bearing No. 323660 and 323661 from the possession of the informant. Informant did not handover the original cheques to the police officer. He stated that he would produce the same before the court. The photocopies of the said cheques were then seized by the Investigating Officer by a seizure list [Exbt.9]. During his investigation, the Investigating Officer produced the cheques before the Branch Manager of the Sabroom branch of SBI to verify whether the cheques were issued by said Subhash Debbarma and whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- and ₹ 20000 respectively that is a total of ₹ 110000/- by the informant and on been entrusted you dishonestly misappropriated or converted the same to your own use in violation of the direction of the legal contract express or implied which the informant have made touching the discharge of such trust. And you thereby committed offence punishable section 406 read with section 34. Thirdly, That of you Sri Ashwini Debbarma being a Public servant on the same date time and place abetted/instigated/engaged with/intentionally aided Subhas Debbarma in dishonestly inducing delivery of ₹ 90,000/- and ₹ 20,000/-that is a total of ₹ 1,10,000/- from the informant to him and in converting the same Balaram Saha and criminal breach of trust and that you at Sabroom on the said date abetted and instigated to deliver ₹ 90000/- and ₹ 20000/- to the accused Subhas Debbarma in dishonestly misappropriating or converting the same to his own use in violation of the direction of the legal contract express or implied which the informant have made touching the discharge of such trust that you have thereby committed an offence u/s 109 of the IPC. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced the person so deceived to do or omit to do anything which he would not do or omit to do if he was not so deceived and it is likely to cause harm to body, mind, reputation or property is said to commit cheating. 16. What necessarily follows is that, there is either fraudulent act or dishonest act in such deception to commit cheating. The word 'dishonestly' has been defined in section 24 IPC, it mandates that, whoever does anything with intention to cause wrongful gain to one person or wrongful loss to another person is said to have done that thing dishonestly. Wrongful loss and wrongful gain as per legislative mandates in section 23 IPC is that, any loss by unlawful means of property to which the person loosing is legally entitled and wrongful gain is that gain by unlawful means to which the person gaining is not legally entitled. The term fraudulently has been defined in section 25 that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. 17. In the case at hand, convict-appellants Subhash Debbarma and Aswini Debbarma had a clear intention to defraud PW-1, Balaram Saha knowing fully well that Subhash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [12] The petitioners have assailed the judgments of the courts below mainly on the following grounds: (i). The basic ingredients of the offence of cheating in terms of section 415 IPC have not been established in the case and as such conviction of the petitioners under section 420 cannot survive. (ii). The petitioners wanted to return the money to the informant for which they issued 2 (two) cheques in favour of the informant. The cheques were dishonoured by bank because those were not presented to the bank in time. From such conduct of the petitioners, the courts below should have presumed that petitioners had no intention to deceive the informant [PW-1]. (iii). In the given facts and circumstances, the trial court ought to have given the benefit of Probation of Offenders Act or Section 360, Cr.P.C to the petitioners. [13] In the course of his arguments Mr. S. Das, learned counsel appearing for the petitioners contended that the courts below did not also consider the discrepancies appearing in the prosecution evidence and therefore findings returned by the courts below are erroneous and liable to be set aside. [14] Mr. S. Ghosh, learned Addl. P.P. appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es on presentation were dishonoured by bank for insufficiency of fund in the account of said Subhash Debbarma. When the PW contacted accused Subhash Debbarma on telephone he told that money would be credited soon in the account of the PW by him. Eventually, the PW lodged the FIR against said Subhash Debbarma and his associate Aswini Debbarma. During cross examination of the PW, the issuance of said cheques were not denied by the petitioners. Execution of the said agreements [Exbt.1 2] between Subhash Debbarma and the PW was not also denied by the petitioners. The PW was made to say in the cross examination that the cheques were drawn on the Agartala branch of SBI whereas he deposited the same for encashment at the Sabroom branch of SBI. Relevant extract of his cross examination is as under: The cheques were issued by the accused Subhash Debbarma on his account at Agartala Branch. I have deposited the cheques to SBI, Sabroom branch. I have not instituted any money suit in connection with this incident. The agreements were made with the understanding between both sides. It is true that when the cheques were dishonoured at that time it crossed my mind that the accused perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... introduced Subhash Debbarma to him who had taken ₹ 1,10,000/- in cash from him for providing a government job to his brother. [20] Sri Thambajoy Reang [PW-5] simply stated that during investigation of the case the investigating officer met him. The PW told the investigating officer that accused Aswini Debbarma was released from Sadai Singh Para JB School, Rupaichari, TTAADC on 28.07.2012 on his transfer to Tongbari JB School, Harepkuwar, West Tripura. [21] Sri Swapan Sutradhar [PW-6] who was the Deputy Manager of State Bank of India, New Secretariat Branch, Agartala confirmed that the two impugned cheques [Exbt.10 11] vide Nos. 323660 and 323661 respectively were drawn by accused petitioner Subhash Debbarma and SB account No. 10915092014 against which those cheques were drawn belonged to accused petitioner Subhash Debbarma who was a peon in the GA(SA) Department of the Government of Tripura as per record maintained in the bank. In cross examination the PW stated that on the day on which he received requisition from the Investigating Officer for furnishing the information with regard to the authenticity of the impugned cheques, the bank account of accused Subhash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including not being a multi-city cheque. In his cross examination the CW stated that cheques of all branches are entertained by any branch of SBI. The PW could not say whether the said cheques after presentation at the Sabroom branch were actually sent to the New Secretariat branch of SBI for collection where accused Subhash Debbarma maintained his account. The PW could not also say as to whether on the date of return of those cheques, account of accused Subhash Debbarma was active or not. [26] On appreciation of evidence, the trial court by its detailed judgment dated 16.11.2016 held the petitioners guilty of offence punishable under section 420 read with section 34 IPC and convicted and sentenced them. In this regard the trial court held as under: 9 .And taking into consideration the charge of dishonour of cheque, which is framed against them, this court finds that for brining charge under Negotiable Instrument Act ,there are certain procedure which has to be complied with and in this case such has not been complied with and in absence of such no charge under NI Act can be sustained. Accordingly this court in its consider opinion finds that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of money from PW-1 assuring him that he would arrange a government job for his brother. The learned trial court has rightly held that the facts of the case do not attract the provisions of Section 138 NI Act because in bringing the charge under NI Act the procedures prescribed thereunder have to be followed. Therefore the learned trial court proceeded to try the case under Section 420 IPC. [31] Cheating is defined under Section 415 IPC which reads as under: 415. Cheating.-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 which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat . Explanation.-A dishonest concealment of facts is a deception within the meaning of this section. [32] Section 416 IPC defines cheating by personation. Section 417 IPC provides punishment for cheating. Section 418 IPC provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat . Explanation - A dishonest concealment of facts is a deception within the meaning of this section. The section requires (1) deception of any person; (2) (a) fraudulently or dishonestly inducing that person (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body mind, reputation or property. 14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been any dishonest act of inducement on his part to do or omit to do anything which he could not have done or omitted to have done if he were not so deceived. Admittedly, the matter is pending before a competent civil court. A decision of a competent court of law is required to be taken in this behalf. Essentially, the dispute between the parties is a civil dispute. 13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation.......................... [37] In the given factual context, it can be safely held that the accused petitioners committed the offence of cheating by dishonestly inducing PW-1 to deliver a cash sum of ₹ 1,10,000/- for providing a government job to his brother. The receipt of the money is not denied by the petitioners. Rather they tried to establish that they had taken the money from PW-1 for processing his application for a government job and they also tried to refund the money when they failed to keep their promise by issuing cheque in favour of the complainant [PW-1] which was eventually dishonoure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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