The criminal revision case is filed by p. W. 1. Complainant in c. C. No. 23 of 1987 on the file of the chief judicial magistrate, salem against the order passed by the said magistrate acquitting the two accused in the case. First accused is the husband and the second accused is his wife.
2. The case of the complainant - revision petitioner is that the two accused mortgaged their property to the gandhi nagar co - operative house building society, attur on 21. 8. 1984 for a sum of rs. 40,000 and they received a sum of rs. 12,000 on 12. 10. 1984 and rs. 16,000 on 19. 10. 1984 totalling to rs. 28,000. Later on 14. 12. 1984 they sold the property to the complainant under a sale deed ex. P - 1 for a sum of rs. 45,000. On that day the complainant paid a sum of rs. 17,000 in cash and as per the terms of the sale deed he undertook to repay the amount of rs. 28,000 received by the accused from the bank. Subsequently the two accused on 11. 1. 1965 without the knowledge of the complainant received a sum of rs. 12,000 from the bank as the balance amount of the mortgage money.
3. Now the case of the complainant is that the accused deceiving him have received the said sum of rs. 12,000 and thereby they have committed an offence of cheating. The complainant gave a complaint to the judicial magistrate, attur who ordered investigation by the police and upon a charge sheet filed by the police under secs. 418 and 420, i. P. C. The case has been taken up.
4. The accused were tried for these charges. They denied that they committed any offence. Their case appears to be that they did not sell the property to the complainant and in respect of some amount due to him on account of dealings, in security thereof, they executed a document in his favour.
5. It appears the complainant had filed a suit against the accused in the sub court , salem , for injunction preventing the accused from interfering with his possession of the property sold to him. The accused also have filed a suit o. S. No. 455 of 1985 in the district munsif court , attur against the complainant for injunction against him from interfering with their possession of the property. It also appears that the accused have filed a criminal case against the complainant alleging that they trespassed into the property and assaulted them.
6. The learned trial magistrate came to the conclusion that when the execution of the alleged sale deed itself is denied, and both sides have filed civil suits against each other and there is a criminal case filed by the accused against the complainant pending, before disposal of those cases it cannot be held that the accused are guilty of cheating p. W. 1. He further held that the accused have been repaying the mortgage amount received by them in instalments and therefore it cannot be said that they have cheated the bank either. So holding the learned magistrate acquitted the two accused.
7. Against this the state has not filed any appeal, but as stated above, the complainant (p. W. 1) has filed this criminal revision case.
8. It is not in dispute that the accused have executed ex. P - 1 registered sale deed in favour of the complainant. As per the recitals of this sale deed the accused have received from the complainant a sum of rs. 17,000 and the complainant shall pay the sum of rs. 28,000 received by the accused from the bank. Considering these recitals in ex. P - 1 sale deed the version of the accused that they executed a document in security for the amount due by them to the complainant in respect of some other dealings cannot at all be believed. It is not stated what were those dealings and what were the amounts due thereon, and if there were such dealings why should they recite in ex. P - 1 that they received on the date of the document a sum of rs. 17,000 and the complainant shall pay a sum of rs. 28,000 received by the accused from the bank.
9. The accused do not deny that they mortgaged the property in the bank for rs. 40,000 and they received a sum of rs. 28,000. From this it is beyond any doubt that ex. P - 1 sale deed is true and the accused are bound by that. It is also admitted by the accused that after the sale deed on 11. 01. 1985 they received a sum of rs. 12,000 from the bank being the balance of the mortgage amount . The complainant s case that the accused did so without his knowledge is also not in dispute.
10. The question is whether under these circumstances can it be said that the accused have cheated the complainant.
11. Cheating has been defined in sec. 415 of the indian penal code. It is as follows:
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 cause 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 fact is a deception within the meaning of this section.
12. As per this section, to constitute an offence of cheating, an important ingredient is that the person complaining should have been by deception fraudulently or dishonestly induced to do or omit to do certain thing. It is not the complainant s case that he was deceived in any way at the time of execution of the sale deed in his favour. His only complaint is that after the sale deed without his knowledge the accused have received rs. 12,000 from the bank as the balance of the mortgage amount and that they should not have done. From this act of the accused certainly it cannot be said that the complainant was by deception fraudulently or dishonestly induced to do or omit to do anything. May be the act of the accused is a breach of contract for which the complainant will be entitled to claim damages from them. But it is not an act of cheating.
13. In this view of the matter the order of the court below acquitting the accused cannot be interfered with in this revision. Accordingly, the revision case is dismissed.
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