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Bageshwar Misser v. Mt. Khandari Kuer And The State Opposite Party.
Structured Summary of the Opinion
Factual and Procedural Background
The petitioner was convicted by the trial court for an offence under Section 420 of the Indian Penal Code and sentenced to six months' rigorous imprisonment and a fine of Rs. 200/-. In default of payment of the fine he was ordered to undergo a further two months' rigorous imprisonment. The trial court also convicted the petitioner's two brothers and imposed the same sentences on them, but on appeal the Sessions Judge acquitted the two brothers while maintaining the petitioner's conviction and sentence. This criminal revision challenges that conviction.
The prosecution arose from a complaint dated 4-1-1965 by Mosammat Khandari Kuer (P.W.4). She alleged that on 14-12-1964 the petitioner and his two brothers brought her to Gopalganj Sub-Registry and caused her to execute a document (Ext. 2) by obtaining her thumb impression; she alleged she was induced to execute what she believed was a "zerpeshgi" deed after taking a loan of Rs.1,000/-, but that the document was in fact an outright sale and she did not receive the promised consideration. The defence maintained that she knowingly sold the land, that Rs.920/- was paid by adjustment of prior loans before execution and Rs.80/- in cash was paid after registration. The registration receipt (the document the prosecution said showed the thumb impression given on promise of later payment) was reported to have been destroyed.
Legal Issues Presented
- Whether the petitioner can be convicted under Section 420 IPC when the appellate court disbelieved the prosecution's account that the deed was presented to the complainant as a "zerpeshgi" rather than a sale.
- Whether the appellate court was correct to convict the petitioner solely on the ground that no consideration was paid to the complainant, despite the deed (Ext. 2) reciting payment of Rs.920/- by adjustment and Rs.80/- at execution, and whether non-payment of consideration is a matter properly left to civil proceedings.
- Whether there was criminal intention on the part of the petitioner at the time of inducing the complainant — that is, whether the necessary mens rea for cheating under Section 420 IPC was established.
Arguments of the Parties
Appellant's (Petitioner's) Arguments
- The appellate court disbelieved the prosecution's principal allegation that the document was represented as a "zerpeshgi" (and thereby misrepresented), and therefore the conviction under Section 420 cannot stand.
- Ext. 2 expressly recites that Rs.920/- was paid by adjustment of prior loans and Rs.80/- paid at execution; there was therefore no initial intention to cheat. The scribe (Jagannath) recorded that he read and explained the deed to the complainant and there is no finding to the contrary.
- The complainant's testimony was unreliable on key points; it is unsafe to convict based on a part of a prosecution story when material parts have been disbelieved (relying on Awadh Singh v. The State).
- Even if a balance remained unpaid, mere breach of contractual obligation is not a matter for criminal prosecution absent evidence of criminal intention at the time of inducement (relying on Sheosagar Pandey v. Emperor); the complainant had an alternative remedy in civil court.
- The petitioner asserted in examination under Section 342 CrPC and in a written statement that the entire consideration (Rs.920 and Rs.80) had been paid.
Respondent's (Complainant's) Arguments
- The prosecution advanced two distinct grounds of cheating: (i) misrepresentation that the deed was a "zerpeshgi" whereas it was actually a sale deed; and (ii) the recital in the sale deed that Rs.920/- had been paid (by adjustment) and Rs.80/- at registration was false — in reality the petitioner obtained the complainant's thumb-impressed receipt on a promise to pay later and then did not pay.
- Although the first ground (misrepresentation about "zerpeshgi") was disbelieved by the Sessions Judge, the Judge relied on the second ground (false recital and non-payment) to convict, finding the recital demonstrated criminal intention from the outset and that, admittedly, no amount had been paid at the time of execution.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Awadh Singh v. The State, AIR 1954 Pat 483 | That while a court may accept part of a prosecution story even if it disbelieves other parts, as a rule of prudence it is unsafe to rely on a part of the prosecution story when material parts have been disbelieved; the prosecution must prove its whole case where it is definite and positive. | The judgment was cited by the petitioner to argue that the Sessions Judge erred in convicting on one part of the complainant's evidence (non-payment) after disbelieving the material part (that the deed was represented as a zerpeshgi). The court accepted, in its analysis, the caution reflected in this precedent and found it unsafe to uphold the conviction on the basis relied upon below. |
| Sheosagar Pandey v. Emperor, (1936) 37 Cri LJ 38 (Pat) | Mere breach of contract does not amount to a criminal offence; the distinction between breach of contract and cheating depends on the accused's intention at the time of inducement, which must be clearly established; where there is no clear and conclusive evidence of criminal intention and a civil remedy exists, the matter should be left to civil courts. | The petitioner cited this case to contend that absent clear proof of criminal intention at the time the deed was induced, the matter was a civil dispute. The court relied on the principle to conclude that criminal intent was not established with certainty and noted that the complainant had an alternative civil remedy, contributing to the decision to set aside the conviction. |
Court's Reasoning and Analysis
The court took the primary contentions together and examined the evidence and findings of the courts below. It noted that the appellate court had discarded the evidence of P.Ws.1–3 and had disbelieved the complainant (P.W.4) on the specific point that she was misled to execute a "zerpeshgi" deed; yet the Sessions Judge convicted the petitioner solely on the basis that no consideration was paid and that the complainant had been induced to part with a registration receipt on a promise of later payment.
The court reviewed Ext. 2 (the registered deed) which recited that Rs.920/- had been paid by adjustment of prior loans and that Rs.80/- had been paid at the time of execution. The record contained a statement by the scribe Jagannath in the deed that he had read and explained the deed to the complainant; there was no finding by the trial court that the deed had not been read or explained. The petitioner had asserted in his Section 342 CrPC examination and in a written statement that the full consideration had been paid (Rs.920 before execution and Rs.80 after registration). The court also observed that the registration receipt which might have borne the complainant's thumb-impression and other entries had been destroyed and was therefore unavailable.
The court considered the legal principles cited by the parties. It acknowledged the Awadh Singh principle — that accepting part of a prosecution story while rejecting material parts is generally unsafe — and found that where the prosecution's case was disbelieved on a material point (the alleged misrepresentation that the document was a "zerpeshgi"), it was imprudent to rely on another part of the same testimony to sustain a criminal conviction without clearer corroboration.
The court also accepted the legal distinction articulated in Sheosagar Pandey: the essential element for cheating under Section 420 IPC is the accused's criminal intention at the time of inducement. Where there is no clear and conclusive proof of such intention and a civil remedy exists, the matter is not appropriately pursued as a criminal prosecution. Applying that principle to the present facts, the court concluded that it could not be said with certainty that the petitioner had criminal intention at the time the deed was executed.
On the basis of the recitals in Ext. 2, the absence of any finding that the scribe had not read the deed to the complainant, the petitioner's assertions of payment in his own statements, and the legal principles above, the court found the conviction unsafe. The court therefore allowed the revision.
Holding and Implications
Holding: The application is allowed and the conviction and sentence imposed upon the petitioner are set aside.
Implications:
- Direct effect: The conviction and sentence previously imposed on the petitioner under Section 420 IPC have been set aside by this Court; the application for revision has been allowed.
- Scope and precedent: The opinion rests on the facts of this case, applying established principles that (a) it is unsafe to convict on part of a prosecution story when material parts are disbelieved, and (b) criminal intention at the time of inducement must be clearly established before treating what may be a contractual breach as cheating. The judgment does not set out to expand legal doctrine beyond applying these settled authorities; it primarily affects the parties by vacating the conviction and sentence.
This summary has been prepared strictly from the content of the provided opinion and does not add or infer facts beyond that text.
1. This criminal revision has been preferred by the sole petitioner who was convicted for an offence under Section 420 of the Indian Penal Code (hereinafter referred to as ‘the Code’) and was sentenced to suffer six months' rigorous imprisonment and a fine of Rs. 200/- was also imposed upon him for the said offence. In default of payment of the fine, he was ordered to undergo further rigorous imprisonment for two months, by the trial court. On appeal his conviction and sentence were maintained. It may be noted that the trial court had convicted also his two brothers, namely, Nag Narain Misser and Saligram Misser for the offence under the aforesaid section, and the same sentences were imposed upon them. The appellate court, however, gave benefit of doubt to Nag Narain Misser and Saligram Misser and acquitted them.
2. Facts, in brief, which have given rise to this application are: The prosecution was initiated on a complaint dated 4-1-1965 (Ext. 1) lodged by Mosammat Khandari Kuer (P.W 4) widow of Dhorai Pandey. According to the complainant, on 14-12-1964 the petitioner along with his two brothers, who have been acquitted by the Sessions Judge, came from their village Bankata to the complainant who was living then at village Dhamnagar which is 16 miles from the village of the petitioner, and requested her to execute a zerpeshgi deed in respect of her 19 kathas 16 dhurs of land after taking a loan of Rs. 1,000/- from the accused. To this she agreed. On 15-12-1964 she was taken to Gopalganj Sub-Registry Office, and was made to execute a document (Ext. 2) by obtaining her thumb impression, which she took to be a zerpeshgi deed, as according to her, the contents thereof were not read out or explained to her. The accused also promised to pay the consideration at her home after the registration. After the deed was registered the registration slip was also taken from her after obtaining her thumb impression thereon, but even later no money was paid to her. Thereafter, on enquiry she learnt that fraud was committed by the accused as in fact it was not a zerpeshgi deed but it was an out and out sale, and for that also no consideration was paid to her. Then she filed the said complaint on 4-1-1965. The defence, in short, was that she had knowingly sold her lands after receiving Rs. 920/- by way of adjustment of prior loans before the execution and the balance of Rs. 80/- in cash, was paid to her after the registration. The trial court after considering the evidence on record, however, convicted the petitioner along with his two brothers as mentioned earlier. On appeal the conviction and sentence passed upon the petitioner were maintained whareas his two brothers were acquitted. Hence this revision.
3. Learned counsel appearing on behalf of the petitioner has raised the following points for consideration by this Court:
(i) The prosecution story about misrepresentation to the complainant regarding the zerpeshgi nature of the deed having been disbelieved by the appellate court, the petitioner cannot be convicted under Section 420 of the Code.
(ii) The appellate court has erred in convicting the petitioner solely on the ground that no consideration was paid to her contrary to the promise made by the petitioner. For the payment of consideration the court ought to have examined the terms mentioned in the document (Ext. 2) itself, specially when there is no finding that the document was not read over and explained to her. Even if consideration had not passed the court below ought not to have gone into the matter as it was a civil right.
4. I will take up for consideration points Nos. (i) & (ii) together. Learned counsel appearing on behalf of the petitioner has contended that the prosecution examined 4 witnesses, namely, P.Ws 1 to 4, to prove the prosecution story. The appellate court discarded the evidence of P.Ws 1 to 3 and based the conviction solely on the testimony of P.W 4, the complainant even P.W 4 has not been relied regarding her story that the accused had approached her for zerpeshgi and not for sale. The learned Judge held that her story regarding the zerpeshgi was false, and he gave the accused benefit of doubt for that part of the prosecution story. The learned Judge, however, convicted the petitioner on the ground that P.W 4 did not receive any consideration for the sale deed (Ext. 2) and she was made to part with the registration slip on the pretext of paying the consideration later at home.
5. Learned counsel submitted that the appellate court erred in holding that the recital of the deed (Ext. 2) clearly showed that such an intention was present from the very beginning. He has drawn my attention to Ext. 2, wherein it is stated that Rs. 920/- was paid to her by adjustment of a prior loan, and the balance of Rs. 80/- was paid to her at the time of execution. Therefore, he urged that there was neither intention of cheating from the very beginning, nor there was existence of such intention at any subsequent stage. In fact, the balance of Rs. 80/- was paid to P.W 4 on the same date after the registration of the document and before she parted with its receipt. The deed was scribed by one Jagannath, who has written in the deed that he read it out and explained it to her. There is no finding by the court below that Jagannath, the scribe, did not explain or read over the deed to her. In that view of the matter it cannot be said that Rs. 920/- was not paid to her by way of adjustment. She put the thumb impression on the deed after it was fully explained to her. If she would not have received Rs. 920/- she would not have put her thumb impression on it. The balance of Rs. 801- was also paid to her before she parted with the registration receipt (receipt for the exchange of the deed). At one stage I wanted to see this receipt in order to find out what was written on her behalf or by her on this receipt. Hence, I called for the receipt from the office of the Sub-registry Office, Gopalganj, but it was reported that the same had been destroyed. The case of the prosecution is as mentioned earlier that she put her thumb impression on the receipt and parted with it on the assurance that the consideration money will be paid to her at her home but that was not paid. In examination under Section 342 of the Cr PC, the petitioner has stated that he paid the consideration money, and he further stated that he would file written-statement. In the written-statement also it was stated that Rs. 920/- was paid to her, before the execution of the sale deed and the balance of Rs. 80 was paid to her after the registration and she put her thumb impresison on the receipt after the payment of the balance amount. Learned counsel further contended that once she parted with the registration receipt, the presumption would be that the entire amount was paid to her. The complainant (P.W 4) is the only witness on the point that no consideration was paid to her and the court below has disbelieved her so far as the story regarding the zerpeshgi is concerned. According to him, the learned Judge ought not to have convicted the petitioner on her evidence when she was disbelieved on material particulars. In this connection reference may be made to a decision of this court in Awadh Singh v. The State, AIR 1954 Pat 483 where Choudhary, J. (as he then was) at page 486 observed that, of course, it is true that where the prosecution story is disbelieved as to its essential details, it is still open to the court to rely on apart of the story for the purpose of convicting the accused persons, but at the same time it is elementary that where the prosecution has a definite or positive case it must prove the whole of the case. His Lordship further observed that, though it cannot be laid down, as a law of general application, that, in no case, a Judge can accept a part of the prosecution story when he has disbelieved its other part, as a rule of prudence it will not be safe to rely on the evidence of witnesses on one part of the prosecution story when it has been disbelieved as to its material part.
6. Learned counsel further submitted that even assuming that no consideration money was paid to her, the definite case of the prosecution was that the petitioner misrepresented to the complainant to execute the zerpeshgi deed although in fact it was a sale deed. The learned Judge disbelieved this part of the prosecution story. Therefore, learned counsel has urged that when the deed was executed, petitioner had no intention to cheat her. It is well established that for a conviction for an offence under Section 420 of the Code, it is essential to establish the criminal intention of the accused, at the time the offence is said to have been committed. In that view of the matter, the conviction of the petitioner, according to him, cannot be sustained.
7. On the other hand, Mr. Ram Nandan Sahaya Sinha, appearing on behalf of the complainant-opposite party, submitted that the prosecution made out two distinct grounds of cheating, namely,
(i) the complainant was given to understand by the petitioner that she was executing a zerpeshgi deed whereas, in fact, it was a sale deed;
(ii) the recital in the sale deed regarding the payment of Rs. 920/- to the complainant before the execution by adjustment of prior loans and the balance of Rs. 80/- at the time of registration of the deed was false and fraudulent. The petitioner got the thumb impression of the complainant affixed on the registration receipt on the false promise that the consideration money would be paid to her later on at her home, but did not pay at all, contrary to his promise, which amounted to a clear case of cheating.
8. Learned counsel further submitted that it is true that on the first ground, she has been disbelieved by the learned Judge, but she has been relied so far ground No. (ii) is concerned and the conviction of the petitioner is based upon ground No. (ii). The learned Judge observed that the recital in the deed that Rs. 920/- had been paid to her by way of adjustments towards prior loans at the time of execution of the deed, and the balance of Rs. 80/- at the time of registration of the deed, clearly indicated that the petitioner had criminal intention to cheat her from the very beginning. He further held that, admittedly no amount had been paid to her at the time of the execution of the deed.
9. In order to repell this argument, Mr. Kailash Ray, appearing on behalf of the petitioner, contended that the finding of the learned Judge that “admittedly no amount had been paid to her at the time of the execution of this deed” is an error of record and drew my attention to the examination of the petitioner under Section 342 of the Cr PC, which I have already mentioned in the earlier part of my judgment and also referred to the written statement which was filed on behalf of the petitioner, the relevant portion whereof reads as follows
“That the real story is that the complainant received Rs. 920/- before the execution of the sale deed and she willingly and voluntarily executed the sale deed and incorporated Rs. 920/- in the sale deed which she had taken and after registration, she executed the receipt duly thumb impressed by her on receipt of Rs. 80/- the balance of the consideration money of the deed. The complainant was later manoeuvred by Manu Pandey and filed the complaint with false allegations.”
10. Hence, he urged that it was not an admitted case of the petitioner. On the contrary, the case of the petitioner was and is that the entire consideration money was paid to her. Besides, before she executed the deed, the scribe Jagannath read it out to her and explained it to her, as it is mentioned in the deed itself, and there is no finding of the court below that the document was not read over and explained to her. If the deed clearly mentioned that Rs. 920/- was paid to her by way of adjustment, it cannot be said that the petitioner had criminal intention from the very beginning. In that view of the mater also, his conviction cannot be upheld. In order to substantiate his point, he has relied on a decision of this Court in Sheosagar Pandey v. Emperor, (1936) 37 Cri LJ 38 (Pat), where Fazl Ali, J. (as he then was) observed that mere breach of a contract cannot give rise to a criminal prosecution. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time of the alleged inducement which may be judged by his subsequent act, but of which the subsequent act is not the sole criterion. Where there is no clear and conclusive evidence of the criminal intention of the accused at the time the offence is said to have been committed, and where the party said to be aggrieved has an alternative remedy in the civil court the matter should not be allowed to be fought in the Criminal Courts.
11. In view of the above discussions, I am inclined to agree with the contentions of learned Counsel for the petitioner.
12. On the facts and in the circumstances of the instant case, it cannot be said with certainty that the petitioner had criminal intention to cheat her at the time the offence is said to have been committed. Besides, in the present case also, she has alternative remedy in civil court. The judgment of the court below convicting the petitioner cannot be upheld.
13. In the result, I allow this application and set aside the conviction and sentence imposed upon the petitioner.
14. Application allowed.
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