WAHEEDA KHATOON Vs. SYED MOHAMMAD AHMED NAQVI

JUDGEMENT

(1.) The complainant in CC No.60 of 1994 on the file of the XVI Metropolitan Magistrate, Hyderabad, filed this appeal against the order of acquittal passed by the Magistrate wherein the accused was acquitted under Section 248(1) Cr.PC for the offence punishable under Section 420 IPC.

(2.) The case of the complainant is that the accused while acting as General Manager of a local branch of M/s. Almizan Leathers Pvt. Ltd., a partnership firm which came into existence for the upliftment of the Muslim community, induced the complainant to part with substantial amounts for investment in various leather industries started by the said Company under a promise that, she will be paid high dividends for the amounts invested by her. Acting on the representation of the accused the appellant paid Rs.25,000.00 by way of demand draft drawn on S.B.H., Saidabad, -dated 18-10-1984 in favour of Gorakpur Skin Corporation one of the industries said to have been owned by the Atmizan Company. Ex.P3 is the receipt passed on by the accused and on the reverse of the said receipt the accused made an endorsement, that he will take the responsibility of repayment of the amount. Once again on 24-2-1987 the complainant paid another sum of Rs.25,000.00 by way of demand draft towards share capital in Kagaznagar Skin Corporation under Ex.P4. Again on the reverse of the receipt passed by the accused he made an endorsement, that he will take the responsibility of repayment of the said amount. Subsequently either the accused or the Almizan Company paid the dividends to the complainant. In these circumstances, she got a legal notice issued Ex.P5 for refund of the amount paid by her. Ex.P6 is the reply to the legal notice sent by the accused. In the reply sent by the accused he categorically admitted that he was a local representative ofthc said Almizan Company and he also received the monies on behalf of the Company, He has also given particulars of the payment made to the complainant. In para 5 of the reply he stated that the managing partner of the Company gave a statement that all the branches including the one at the Hyderabad were closed down with effect from 31-10-1987 and since then he has nothing to do with the Company and the complainant may work out her remedies against the Almizan Company. Thereafter, the present complaint was filed by the complainant contending that the accused with an dishonest intention induced her to part with her monies and he is liable for punishment under Section 420 IPC. To prove her case the complainant examined four witnesses and marked six documents Exs.Pl to P6. The accused got himself examined as DWI and marked a copy of the legal notice as D1. In his examination under Section 313 Cr.P.C. the accused has denied everything i.e., that he never acted as General Manager of the local branch, that he never received any amounts, that he never issued receipts, so on and so forth. Having appraised the evidence, both oral and documentary, the Magistrate acquitted the accused by holding that he never acted as general manager of Almizan Company and the complainant failed to prove that the accused received the monies from her.

(3.) I have gone through the judgment of the Court below. I have no hesitation to hold that the finding recorded by the Magistrate is perverse. The recitals in Ex.P6 reply to the legal notice sent by the accused were not considered by the Magistrate where the accused actually admitted that he acted as a representative of Almizan Company and he received the amount on behalf of the Company. Hence the finding recorded by the Magistrate cannot be sustained in law. But now it is on record that the complainant issued demand drafts to the two Corporations said to have been run by the Almizan Company, and the complainant did not deny the fact of receiving some dividend amount for the monies invested by her and it is also not her case that Almizan Company, not at all existed, these Corporations are only paper Corporations and the monies were received and misappropriated by the accused, the accused cannot be convicted for a charge of 420 IPC. From this it is seen that the accused was under a bona fide impression that the Almizan Company is likely to improve the living conditions of the Muslim community in the country might have acted as local representative and might have induced the complainant by going to the extent of giving guarantee for repayment of the amount. But to bring the offence within the four comers of the definition of cheating under Section 420 IPC the prosecution has to prove that at the time of receiving the monies itself there should be a dishonest intention on the part of the person who makes other person to part with his/her monies. Admittedly, in this case, I do not find that there is any such dishonest intention on the part of the accused at the time of receiving the amount or at the-time of inducing the complainant to invest monies in that Company. Hence, the accused cannot be prosecuted for an offence punishable under Section 420 IPC. However, as he stood as surety the only course that could be appropriate for the complainant is to file a suit in the Civil Court. Though the reasoning given by the Magistrate in acquitting the accused is perverse, as the prosecution failed to prove that there was dishonest intention on the part of the accused at the time of inducing her or receiving the amount the accused is liable to be acquitted of the charge levelled against him. The accused is accordingly acquitted.