ABDUL FAZAL SIDDIQUI Vs. FATEHCHANDHIRAWAT

JUDGEMENT

(1.) Respondent 1 filed a complaint in the court of Additional Chief Presidency Magistrate, Calcutta, against the appellant (A-1, Kochi Mia (A-2 and Fazlur Rahman (A-3 alleging offence under Section 120-B read with Section 420 Indian Penal Code and in the alternative under Section 420 Indian Penal Code read with Section 34 Indian Penal Code.

(2.) According to the complainant, Kochi Mia (A-2 and the appellant met him and requested him to advance money against the stock-in-trade of business of the Calcutta Cafe of which Fazlur Rahman (A-3 was represented to be the proprietor. The complainant wanted to meet Fazlur Rahman (A-3 himself before agreeing to advance the loan. After a few days, Fazlur Rahman (A-3, Kochi Mia (A-2 and the appellant went to the place of business of the complainant to meet him. A friend of thecomplainant by name Mangtulal Bagaria was also present at that time with the complainant. The three accused represented to the complainant that Calcutta Cafe was free from all encumbrances and that the money could be advanced against hypothecation. Both the complainant and his friend Mangtulal Bagaria agreed to advance Rs. 30,000. 00 to Fazlur Rahman. On the next date, a deed of hypothecation was drafted and executed in the office of Mr. G. Bagaria (Public Witness 4 between the parties. In the deed of hypothecation, it was stated that the business in question was free from all encumbrances and charges etc. The deed of hypothecation was signed by Fazlur Rahman (A-3. On the basis of the specific representation made orally and in the deed, the complainant and Mangtulal Bagaria advanced a sum of Rs. 30,000. 00 to Fazlur Rahman (A-3. The amount was advanced against six hundies. Fazlur Rahman (A-3 also executed a general irrevocable power of attorney in favour of the complainant and Mangtulal Bagaria authorising them to take charge of the management of the Calcutta Cafe in case of default of payment as agreed to in the deed of hypothecation. Some payments were subsequently made towards repayment of the loan by Fazlur Rahman (A-3 to the complainant and Mangtulal Bagaria but after 28/11/1966 admittedly no payments were made. On an enquiry made by the complainant, it transpired that the representation made by Fazlur Rahman (A-3, Kochi Mia (A-2 and the appellant was false because the property in question was an encumbered property and in a suit filed in the Calcutta High court, Joint Receivers had been appointed regarding Calcutta Cafe. After recording the preliminary evidence all the three accused were sent up for trial. It transpires that no charge was framed against Kochi Mia (A-2 while Fazlur Rahman (A-3 died during the pendency of the trial. The defence of the appellant was that he was in no way connected with the alleged crime nor had he cheated the complainant and his friend Mangtulal Bagaria and that he had not made any false representation to the complainant to induce him to part with his money. He asserted that he was not present at the time when the alleged representation was made by A-3 to the complainant, at the time of the drawing up of the hypothecation deed and that he had only subsequently identified the executed at the request of the complainant and Kochi Mia (A-2.

(3.) In the trial court the case, therefore, proceeded only against the appellant. The learned trial Magistrate vide his order dated 24/4/1972 convicted the appellant for an offence under S. 420/34 Indian Penal Code and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500. 00 and in default to undergo further rigorous imprisonment for two months. The appeal filed by the appellant in the High court failed on 30/8/1979. By special leave the appellant is before us.