CHAUTHI Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against an order dated 28-9-73 passed by Sessions Judge, Azamgarh confirming the conviction and sentences recorded against the applicant under sections 419 and 467 I P. C. The complainant in this case is one Puranmashi. The applicant (Chauthi) is his own brother. Another brother of the complainant was one Dukhanti. Dukhanti's sons are Samujn and Dhunmun, while the applicant's son is Ram Chet All these persons held some land in village Moinuddinpur, P. S. Pawai, district Azamgarh. Puraamashi lived separately from his brothers and also cultivated his land separately. On 6-7-68 he executed a sale deed in respect of his land in favour of Ori and others. The sale deed, however, could not be registered on that day because Samujh, Dhunmun and Ram Chet took away Puranmashi from Sub-Registrar's Office, Phulpur on some protest and left him only after the Mime or registration as over. Puranmashi, however, got the sale deed registered on 9-7-68 and recei ved Rs. 2.500/- from the vendees. On 4-3-69 the applicant, Dhunmun and others interfered with the possession of the vendees over the land purchased by them and stopped them from harvesting their crop. They told the vendees that they had purchased the land in question from Puranmashi and they, therefore, have no right to it. They threatened them with serious consequences in case they dared to come near that land. The vendees approached Puranmashi and told him of this thing. Puranmashi at once went to the Sub-Registrar's Office to find out what the matter was and he came to know that the applicant and two others, namely, Jhagru and Mannu had forged a fictitious sale-deed in favour of Dhunmun. Samujh and Ram Chet. He also came to know that the applicant had personated himself as Puranmasbi and had executed the sale-deed in that capaciiy. He further came to know that Jhagru and Mannu had acted as witnesses on the sale-deed. Puranmashi lost no time and filed a complaint against the persons concern ed on 21-4-69. After the necessary formalities, the applicant, Jhagru, Mannu, Samujh, Dhunmun and Ram Chet weie summoned by the Magistrate concerned. After the inquiry proceed ings were completed, all of them were committed to the Court of Session. All the accused of the case pleaded not guilty and denied the allegations made against them they attributed their false implication due to enmity. The trial court considered the evi dence on record and came to the conclu sion that no case against Samujh, Dbunmun and Ram Chet was made out and it, therefore, acquitted them. It, however convicted the applicant. Jhagru and Mannu under sections 467, 468 and 120 B I. P. C. and sentenced each of them to three years' R. I. under the first two counts and six months' R. I. under the third count. The applicant was further convicted under section 419 I. P. C. and was ordered to pay a fine of Rs. 200/- ; in default of payment of fine he was to undergo a further term of three months' R. I. the three convic ted persons went up in appeal to the Court of Session. The Sessions Judge all owed the appeal of Jhagru and Mannu and acquitted them of all the charges. The learned Sessions Judge partly allow ed the appeal of applicant Chauthi and acquitted him of the charges under sections 468 and 120 B and maintained conviction and sentences under sections 467 and 419 I. P. C. Aggrieved, the applicant has now come up in revision to this Court. I have heard the learned counsel for the applicant at sufficient length and have also perused the record of the case. In so far as the conviction of the applicant under section 467 I P. C. is concerned, I think it calls for no interference. There is enough material on record to show that he had forged the original of sale deed Ex. Ka-16 in favour of Samujh, Dhunmun and Ram Chet. According to the original of Ex. Ka-16, Puranmashi was said to have executed the sale-deed in favour of the aforementioned three persons, Puran mashi denied to have ever executed any sale-deed in favour of any of these three persons. The original sale-deed is said to have been thumb-marked by Puranmashi. Puranmashi denied his thumb- marked on it. The statement of the Handwriting and Finger Print Expert Sri H. R. Hardless P. W. 1 also confirms beyond doubt that the sale deed does not bear the thumb-mark of Puran mashi. His statement instead shows that the thumb-mark on the sale-deed was that of the applicant. He had com pared that thumb-mark with the speci men thumb-marks of the applicant and found them to tally with each other. Therefore, on the basis of the material present on record, there can be no doubt about the fact that the applicant personated for Puranmashi and put his own thumb-mark on the sale-deed in question. He was, therefore, rightly convicted under section 467 I. P. C. Now the question is whether the conviction of the applicant under section 419 I. P. C. is proper or not. Section 419 deals with cheating by per sonation. To prove an offence under section 419 I. P. C. the prosecution has to show two things (1) that the accused cheated the complainant and (2) that he did so pretending to be some other person. The applicant may have preten ded to be Puranmashi when he thumb marked for him on the sale-deed : but the question is whether by doing so he cheated Puranmashi or not. "Cheating" has been defined under section 415 I. P. C. In the definition of cheating in section 415 there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced to deliver any property to any person or to consent that any person shall retain any property. In order to constitute the offence of cheating the person who induces another to do this class of acts must fraudulently or dishonestly induce the person deceived to do that kind of act. The second class of acts set for them in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In order to cons'itute the offence of cheating with regdrd to this class of acts the person who induces another to do them must intentionally induce him to do them. In the first class of cases the inducing must be fraudulent or dis honest. In the second class of acts the inducing must be intentional. In the instant case, the complainant (Puranmashi did not come in the picture at all. He was not deceived in any manner because he was neither indicted to deli ver any property, nor was he induced to do or omit to do anything. If the transaction of sale could have resulted in deception to anybody, it were the persons who had purchased the property through sale deed Ex. Ka 16. Those parsons, namely, Samujn, Dhunmuo and Ram Chet have however not said that they had been deceived in any manner by the transaction of sale in their favour. Indeed, there could have been no ques tion of their having been deceived because they were the own men of the applicant. Therefore, as the facts stand, I do not think that any offence under section 419 I. P. C. is made out against the applicant. Accordingly, he must be acquitted of this charge. The learned counsel for the appli cant contended that the applicant is the own brother of the complainant and he had forged the sale-deed in question with the object of ensuring that the property of the family may not go out of it and so it was not a case in which the applicant should have been sentenced to three years' R. I. under section 467 I. P. C. I am afraid I cannot persuade my self to agree with this contention of the learned counsel. Whatever his object might have been, it was highly improper on the part of applicant to have personated for the complainant and to have executed the sale-deed on his behalf in favour of his son and nephews. However, I think the ends of justice would have been served if the applicant had been sentenced to two years' R. I. only. In the result, I allow the revision in part and set aside the conviction and sentence passed against the applicant under section 419 I. P C. His convic tion under section 467 I. P. C. is main tained. The sentence awarded to him under section 467 I. P. C. is however, reduced from three years' R. I. to two years' R. I. The applicant is on bail, his bail-bonds are cancelled and he should be taken in custody to serve out his sen tence.