KAMAL KUMAR MAITY Vs. BASUDEB PATRA

JUDGEMENT

(1.) Against the petitioner, the opposite party No. 1 lodged a complaint before to learned Chief Judicial Magistrate of Purba Medinipore at Tamluk alleging that it was a represented to him by the petitioner that he had exclusively got a portion of land measuring .06 decimal comprised in L.R.Dag No. 460, Khatian No. 340 of Mouza-Bathanberia under PS Kolaghat by virtue of an oral amicable partition effected between the petitioner and his brothers and sisters. Acting on such representation the O.P.No. 1 purchased the property by three deeds on 19th July, 1998 for Rs. 60,000/- but when the O.P.No. 1 had been to the land, other co-sharers of the petitioner came out to protest against the possession of the land by the O.P. No. 1 on the ground that all of them have shares in the said property along with the petitioner. The O.P. No. 1 then asked the petitioner to make refund of the money but he turned him down at last on 7th August, 2004. Having reposed confidence in him upon his representation that the land exclusively belonged to the petitioner, the O.P.No. 1 purchased the land and thereby he has been cheated. The complaint was lodged under section 406/420 of the IPC before the learned Magistrate, The O.P. No. 1 examined himself before charge. He was cross-examined before charge. One Sankar Maity a deed writer was examined and cross-examined before charge. One P. Mondal was also examined and cross-examined before charge. Learned Trial Court discharged the accused persons under section 245(1) of the Cr. PC by his order dated 17th May, 2008 which was challenged in revision but the learned Additional Sessions Judge in Criminal Revision No. 25 of 2008 allowed the same by setting aside the order of the learned Magistrate. The accused petitioner has come here in this application under section 482 of the Cr. PC to challenge the order of the learned Sessions Judge whereby the Magistrate's order of discharge was set aside.

(2.) I have heard Mr. Jayanta Kr. Das, learned Advocate appearing for the petitioner and Mr. Prabir Mitra, learned Advocate appearing for the O.P. At the very outset it has to be said that the charge under section 406 of the IPC cannot lie because the petition of complaint and the oral testimonies of P. Ws. 1, 2 and 3 did not disclose any of the ingredients of the offence of section 405 of the IPC. This is not a case for entrustment in favour of the accused with the property or with any dominion over the property so that the accused can be said to have mis-appropriated the same or converted the same to his own use. The only consideration would be whether ingredients of section 415 of the IPC has been made out. Section 415 requires deception of a person dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or intentionally inducing that person 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. Dishonest intention must be present at the inception of cheating. In the sale deed the petitioner recited that the property belonged to his father. His five sons including him inherited the same but then five sons effected partition as a result of which the property in dispute came to be in his allotment and he has been possessing the same for about 30 years without interference of any of the brothers, and now because of urgent need of money he was selling the property. Now P.W.I has adduced evidence that the accused represented to him that he had been in possession of the land for 20 years and he sold the same at Rs. 60,000/- to P.W.I. He says that had he known that somebody was in possession then he would not have purchased the same. He says in his evidence that when he had gone to the land to possess, other co-sharers told him that the sale was not effected to their knowledge. He asked for refund which was refused. In cross-examination it has been said by P.W.I that the accused did not make any hindrance to his possession. P.W.2 Sankar Maity is a deed writer of the deeds. His evidence is not of much importance because as a professional deed writer he scribed the deeds. P.W.3 P.Mondal says that he similarly purchased the land from the petitioner but did not get possession. The evidence of P.W.3 is not the worth considering. The Trial Court observed that the complainant was quite aware that there was no partition by any order of the Court or by way of any registered partition deed. The Magistrate further observed that the accused did not suppress the manner of his possession. It was the duty of the complainant to enquire about the facts touching upon transactions and there was no materials on record to show that before making purchase he made enquiries about the land. Truly, as it appears from cross-examination of P.W.I, the accused did not pay any hindrance to the possession of the O.P.No. 1. It is the case of the complainant that it was represented to him that the petitioner herein got the property exclusively by amicable arrangement effected with his brothers and sisters. This is verbal representation allegedly made to the O.P.No. 1 finds berth in the deed itself. Whether partition was really effected or not is a different question. Whether the other co-sharers had legitimate grievance against the possession of the O.P.No. 1 of the property pursuant to sale deed is also a different question. The question whether partition was effected by amicable arrangement between the brothers does not fall for consideration before the Magistrate. This is a dispute of civil in nature. Before the Magistrate the complainant had not examined any co-sharers who could vouchsafe as to whether really there was any obstruction to the possession of the complainant of the land by the co-sharers on the ground that the said co-sharers did not have any amicable partition with the petitioner' herein. It is apparent on the face of the record that without ascertaining the genuinity or otherwise of the representation allegedly made by the petitioner the O.P.No. 1 purchased the property on the basis of alleged oral representation concerning exclusive possession of the property by the petitioner following alleged oral amicable arrangement with the other co-sharers. The matter of the fact is that the factum of alleged oral partition has been duly recited in the registered deed itself. The deeds were registered in the middle of 1998, while the complaint was lodged in the year of 2004. When the O.P. No. 1 had been to the plot of land to take possession and when he was resisted in possession by the other co-sharers has not been mentioned in the petition of complaint. The time gap between the 19th July, 1998 (the date of purchase) and 18th August, 2004 (date of complaint) is a gap of 6 years . It has transpired during argument that a civil suit has already been instituted concerning the land. My attention has been drawn to the decision in AmarNath Bbattacharjee vs. Prasenjit Kumar Bose & Anr., reported in 2006(1) C Cr. LR (Cal) 740, which considered a few decisions of the Supreme Court and held in a similar case that the O.P. No.1 in pursuance of the doctrine of caveat emptor should have made a necessary search in possible places including municipality which he had enough opportunity to do within the period of more than one year before execution of the deed. He could have easily avoided the transactions. It was held that the petitioner had no legal obligation to disclose the patent defect which the buyer could with ordinary care discover. It is difficult to hold that the petitioner had mens rea, a culpable state of mind at the time of execution of the deed by making the alleged representation which has been recorded in the deed itself. It is difficult to hold in absence of evidence of record before the Magistrate that there was really no amicable arrangement between the brothers. The Additional Sessions Judge observed that the learned Magistrate did not record any finding to the effect that no case against the accused has been made out which, if unrebutted would warrant the conviction of the accused. The Magistrate recorded evidence of the witnesses before charge and then on the basis of the evidence of the witnesses discharged the accused implying thereby that no case of cheating could be made out. Truly, the evidence as it was on the record which if remained unrebutted rebutted would not warrant conviction. I fail to find how this Additional Sessions Judge, Fast Track Court No. IV at Tamluk could say that the learned Magistrate transgressed his jurisdiction at the stage of consideration of charge. It is not that order of discharge was passed before recording of evidence. The accused filed a petition for discharge long ago but the Magistrate kept it pending and only disposed of the same after examination of the complainant and his witnesses. Even if the evidence of the complainant remain as it is, after framing of charge it is difficult to hold that it would result in conviction. What is the basis of a possible finding that there was dishonest inducement by the petitioner? In the circumstance, the order of the learned Judge cannot be said to be justified.

(3.) The application succeeds and is allowed. The order of the learned Additional Sessions Judge is set aside. The Magistrate's order is confirmed,