DHARAMDAS HUKAMATRAI DORWANI Vs. STATE OF BOMBAY

JUDGEMENT

(1.) , J. : The appellant Dharamdas Hukamatrai Dorwani was charged with having committed an offence under S. 420 of the Indian Penal Code in that on or about 22/03/1953 he cheated chhotubhai Nagarji Desai by dishonestly or fraudulently inducting him to enter into and execute an agreement (Ex. F) on 22/03/1953 and to pay Rs. 2,875 and consent to appropriation towards the payment due under the said agreement earlier payments of Rs. 9,875 made by him on and between 9/03/1952 and 14/07/1952 in respect of Flat No. 15 in the Dorwani Mansion and a shop on the representation that the building, the shop and the land on which they stood were owned by him and were not subject to any mortgage. The learned trial magistrate who heard the case held that the charge had not been proved against the appellant beyond a reasonable doubt. The appellant was accordingly acquitted. The State then preferred an appeal against the said order of acquittal in the High Court at Bombay. The High Court held that the order of acquittal was wholly improper and that the charge against the appellant had been clearly proved beyond a reasonable doubt. That is why the High Court set aside the order of acquittal, convicted the appellant under S. 420 and sentenced him to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000, in default to suffer rigorous imprisonment for a further period of two months. The appellant then applied to the High Court for leave to appeal to this Court but his application was dismissed. Then he applied for and obtained special leave from this Court to file the present appeal. On his behalf Mr. Sethi has urged that the High Court was not justified in reversing the order of acquittal in exercise of its appellate powers, and on the merits he contends that the findings recorded by the High Court are wholly inconsistent with the evidence on record.

(2.) THE facts on which the prosecution case is based can be briefly stated at the outset. On 18/12/1951 an agreement of sale was made in favour of the appellant in respect of a piece of land at Tulsi Pipe Road. In pursuance of this agreement the plot was purchased by the appellant on 19/03/1952 for Rs. 4,03,245. THE appellant had inserted an advertisement in a Bombay newspaper in the third week of February 1952 offering certain flats for sale; and the complainant happened to read this advertisement. So the complainant wrote to the appellant and then met him in the third week of March 1952 along with his father-in-law Mr. T. B. Desai. THEy were introduced to the appellant by an advocate named Mr. Madnani. THE appellant told the complainant and Mr. Desai that he had bought plots of land and was constructing flats and shops which he intended to sell on ownership basis. He also represented that he would be able to give possession within four months. On 9/03/1952 the complainant and Mr. Desai again went and talked to the appellant, and, after some discussion, the complainant selected Flat No. 15 on the ground floor of the Dorwani Mansion. Its price was fixed at Rs. 12,750. THE complainant also selected a shop, No. 9, on the ground floor for his dispensary in the adjoining building, and its price was fixed at Rs. 7,000. Upon an enquiry made by the complainant the appellant informed him that the property had not been mortgaged or transferred. THEreupon the complainant signed two agreements Exs. S-1 and S-2. In pursuance of these agreements amounts were paid by Mr. Desai on behalf of the complainant to the appellant from time to time by cheques, the total amount thus paid was Rs. 9,875.

(3.) IT appears that the complainant came to know in about October 1953 that the appellant had mortgaged the property to the vendors on 19/03/1952. The complainant then contacted the appellant and complained but he was assured that the mortgage would be paid and the complainant's title would be cleared up. Then the complainant wrote to the Police Commissioner complaining that the appellant had committed an offence of cheating. On this complaint investigation commenced and ultimately the appellant was charged under S. 420 of the Code. The appellant denied the charge. He admitted that the property had been mortgaged as alleged by the complainant but he urged that the complainant and all other allottees knew about the mortgage at the time of their respective transactions; and so, according to him, since the complainant entered into the transaction with full knowledge of this mortgage there was no question of cheating him.