BHUJANG FAKIRAPPA KARADE Vs. STATE OF KAKNATAKA

JUDGEMENT

(1.) One Kara Desai brought a complaint against B. F. Karade accused and the allegations were that he purchased 85 bags of groundnut sometime in 1973 through Karade who was a Commission Agent and the bags were stored at the house of Doddappa of Chacchade village. Thereafter on 30th, March 1974 the accused went to Chachade and told him that Kara Desai wanted groundnuts to be shifted to Bailhongal and so saying he got removed the 85 bags of groundnuts which were subsequently sold by the accused. On that account made in the complaint submitted by Kara Desai, an offence was said to be formulated under S.420 of the I.P. Code The learned Magistrate thought fit to ask for police investigation under S.156(3) of the Code and thereafter a report was also submitted against the accused for a similar offence. The prosecution produced 11 witnesses including the complainant Kara Desai (Pw.1), Doddappa (Pw.2) and Pws.3, 4 and 5 from whom the complainant had purchased the groundnut. Pw. 9 was the Hamal who loaded 85 bags from the house of Doddappa and Turamari (Pw.6) was the clerk of the subsequent purchaser of the groundnut from the accused. The defence was that the ground nut bags actually belonged to the accused and that he was justified to remove these bags from the house of Doddappa when he sold them to a third person.

(2.) The learned Magistrate before whom the complaint was filed, believed the prosecution evidence and holding that an offence under S.420 I.P.Code was made out, convicted the accused and sentenced him to undergo six months R.I. and to pay a fine of Rs. 200 in default, to suffer further imprisonment for one month. The accused Karade came in appeal before the Sessions Judge. But, there too he failed and his conviction and sentence have been sustained. Now he has filed the present revision. The main contention of the learned Counsel for the petitioner-accused was that on the very facts alleged against the accused an offence of cheating under S.415 of the I.P.Code was not made out. That section may profitably be extracted. Section 415 reads : "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". It is manifest for the offence of cheating there has to be deception by a person who fraudulently or dishonestly induces the other 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 but the other necessary ingredient of that offence is, that the aforesaid act or omission causes or is likely to cause damage or harm to the person so deceived, in body, mind, reputation or property.

(3.) The learned counsel contends that the deception in this case was committed against Doddappa (Pw.2) while damage was caused to Kara Desai (Pw.1) and since there was no communion in the same person of both deception and damage, no offence was made out. For this, the learned counsel relies on a decision Muhammad Baksh vs. Emperor, AIR. 1941 Lah. 460.In fact, the learned Judges pointed out in that case that the definition of 'cheating' in S.415, Penal Code, requires modification in order to cover cases where one person is deceived and another person suffers, or is likely to suffer, damage, or harm in body, mind, reputation or property. This case was followed in V. Seetharama. Rao vs. Gout, of Mysore, AIR. 1954 Mys.9. It may be that the damage or hapm caused to the person deceived may be remote although natural or probable. But such a direct or remote damage or harm must in every case be proved in relation to the person so deceived.