SHYAMSUNDER MADANLAL KHANDELWAL Vs. DASHRATH KISAN BONDADE

JUDGEMENT

(1.) This is an appeal, on behalf of the complainant-appellant, with the leave of this Court to challenge the order of acquittal dated-29-10-1998 passed by the learned Judicial Magistrate, First Class, 10th Court, Nagpur in Regular Criminal Case No. 70 of 1990.

(2.) Accused persons were prosecuted by the complainant under Section s 403 and 417 of the I. P. C. on the ground that they have dishonestly deprived the complainant of his valuable property worth Rs. 1. 55 lacs by inducing and dishonestly requiring him to enter into an agreement of sale of land which could not have been sold without proper permission of the State. On 24th September, 1989 the complainant paid accused No. 1 Rs. Five Thousand only as an earnest money. On 06-11-1989 he paid to the accused Rs. 1. 55 Lacs to complete the total consideration and on 09-11-1989 agreement to sale was executed. On 30-12-1989 ACCUSED No. 1 issued notice to the complainant informing him that the accused does not wish to complete the transaction as he has been wrongly advised to enter into the agreement of sale. Inspite of the entities by the complainant the amount was not returned or sale was not executed and hence, the complainant filed civil suit in the Court of competent jurisdiction for specific performance of the agreement of sale. Not satisfied with the result of the suit and wanting his pound of flesh, he filed Criminal Case bearing No. 70 of 1999 for the offences punishable under Section s 403 and 417 of the Indian Penal Code roping in the brothers of the accused No. 1 with the aid of Section 34 of the Penal Code. The learned Magistrate recorded evidence of three witnesses, including complainant, for the prosecution and on appreciation of the entire evidence came to the conclusion that the whole transaction was basically and essentially of civil nature no criminality of any kind was involved, he therefore, proceeded to acquit the accused of all the charges levelled against them. It is this order of acquittal, which is subject matter of this appeal.

(3.) Section 24 of the Indian Penal Code defines what dishonest means, it means, whatever action is taken it is with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to be with dishonesty to bring home the charge under Section 403 of I. P. C. therefore, it is necessary for the complainant, to prove that the accused with the intention of causing wrongful gain to himself and wrongful loss to the complainant entered into the transaction of agreement of sale. It is then necessary for the complainant to prove, by cogent evidence that, this intention of causing wrongful loss or wrongful gain existed in the accused minimum that is expected of the complainant, in such circumstances, is unequivocal statement in his deposition that accused persons at the time when the transaction was entered into had intention of causing wrongful gain to themselves and wrongful loss to the complainant. 5-A. Such averment is completely lacking in the deposition of the complainant at Exh. 48 page 80. Nowhere in the deposition before the Court the complainant has averred any such intention. It is pertinent to note from the deposition of this complainant that he wanted to purchase an agricultural land. He came to know from Shri. Shankar Kakde and Shri. Bang that the accused is going to sell his land, therefore, he contacted Dashrath, the accused. He then deposes in a very clear term that, "it was agreed between us that if some permission is required for sale it is upto the Dashrath to take necessary permission for execution of the sale-deed". Therefore, the complainant also knew the existence of such permission or requirement of such permission and yet proceeded to enter into an agreement. He nowhere says that this representation to him that the land can be sold was with the criminal intent of causing loss to him. All that has been said by the complainant is that "if the accused Dashrath represented me that he could not sell the land being Kotwal Dunga, I would not have paid huge amount of Rs. 1,55,000/- to him". He then proceeds to admit that considering the old age of Dashrath he believed him. He further believed Dashrath when Dashrath agreed to acquire permission from the Government, if so required. He ought to have believed Dashrath when Dashrath said that he do not want to sell the land. Nowhere in the deposition of the complainant there is murmur about accused Nos. 2 and 3 having any part to play in the entire transaction. The fact that the transaction was between them i. e. complainant and Dashrath is admitted. In cross-examination, the complainant admits that no direct transaction tool place with him and accused Nos. 2 and 3 and yet he makes them accused. To say least about the attitude of the complainant is that his intention was certainly not proper in roping any person unconnected with the crime.