LAWS(BOM)-1975-4-6

YESHWANT SADASHIV DATYE Vs. DATTATRYA MAHADEO DR

Decided On April 05, 1975
YESHWANT SADASHIV DATYE Appellant
V/S
DATTATRYA MAHADEO (DR) Respondents

JUDGEMENT

(1.) Criminal Appeal No. 1119 of 1973 has been filed by the original complainant after obtaining leave of the Court against the order of acquittal recorded by the Additional Sessions Judge, Poona, in Criminal Appeal No. 175 of 1972 on 9th February, 1973 in favour of the original accused Dr. Dattatraya Mahadeo Akut (respondent No. 1 in the appeal) on a charge under section 420 of the Indian Penal Code. Criminal Appeal No. 175 of 1972 had been filed by the accused against the order of conviction and sentence for the offence under section 420 of the Indian Penal Code recorded by the judicial Magistrate, First Class, Court No. 9, Poona, on 11th July, 1972. The trial Magistrate had sentenced the accused to suffer simple imprisonment till the rising of the Court and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for 30 days. Against the order of sentence, the original complainant filed Criminal Revision Application No. 691 of 1972 for enhancement of the sentence. In the meantime, the accused preferred Criminal Appeal No. 175 of 1972 in the Sessions Court at Poona against his conviction and sentence. That appeal, as already noted, was decided in favour of the accused and he was acquitted. Against that acquittal, Criminal Appeal No. 1119 of 1973 has been filed. During the pendency of the criminal appeal and the criminal revision application, the original complainant has died. Criminal Application No. 279 of 1975 has, therefore, been filed by the elder brother of the complainant for being brought on record in place of the deceased complainant in the criminal appeal. Similarly, Criminal Application No. 284 of 1975 has been filed by the elder brother of the original complainant for being brought on record in place of the deceased complainant in the criminal revision application. This judgment will dispose of all the above four matters.

(2.) The prosecution was instituted on a private complaint filed by Yeshwant Sadashiv Datye, the original complainant. His case was as follows :-

(3.) The defence of the accused was that what he had agreed to give to the complainant was a block of three rooms on the third floor which he intended to construct and he had taken the amount of Rs. 9,000/- from the complainant for the purposes of construction. The agreement with Tulshidas Paggawar was in respect of a room on the 2nd floor and not on the third floor. Similarly, the agreement with Palnitkar was in respect of two rooms on the second floor and not on the third floor. Page, Chandratre and Shah were all given premises on the second floor and not on the third floor. At the time when the accused made the agreement with the complainant, he had the intention to build the third floor and it was only if he were able to construct the third floor that he was to give the three rooms to the complainant. The accused had not been able to build the third floor at all. The construction was for a while stopped because of an objection raised by a neighbour and also due to non-availability of cement. There was no intention on the part of the accused to cheat the complainant when he made the agreement. He had, therefore, not committed any offence.