UMA DUTTA Vs. G MAHADEVAN

JUDGEMENT

(1.) The petitioner-complainant challenges the order of the Judicial Magistrate First Class, Sambalpur dated 1-5-89 refusing to entertain the petition of the complainant made under S. 216 of the Code of Criminal Procedure (for short 'the Cr. P.C.') for addition of a charge against the accused under S. 420 of the Indian Penal Code (for short 'the IPC') in I.C.C. Case No. 21 of 1988.

(2.) The case of the petitioner is that she had taken a gold loan from the State Bank of India (for short 'the S.B.I.'), Sambalpur after pledging ten tolas of gold ornaments belonging to her and received a loan of Rs. 10,000/- on 23-3-84 vide gold loan account No. 32 of 1977 in the said branch of the S.B.I. The complainant had received several letters from the accused, viz., Shri G. Mahadevan, Branch Manager, of the bank in question for early liquidation of the loan amount but since the present petitioner-complainant could not do so due to her financial hardship, a notice was finally served on her on 14-12-87 to the effect that unless the amount is liquidated, the ornaments would be put to auction on 15-1-88. The petitioner thereafter made a prayer to the Bank for deferring the date of auction and to allow her some time to arrange the aforesaid amount which was agreed to by the accused. On 29-1-88 complainant had cleared her all outstanding dues amounting to Rs. 9,339.20 in the aforesaid gold account and avaited release of the ornaments in her favour. But the opposite party had refused to deliver the ornaments without assigning any reason and on subsequent approaches made it clear that the ornaments shall not be returned as the husband of the complainant was involved in some cases of fraud. The complainant had mentioned in the said complaint petition that the whole property was stridhan property and in no way connected with the alleged fraud by her husband on the Bank and the accused was not entitled to retain the ornaments in his custody when she had cleared the dues in her gold loan account. It is asserted in the complaint petition that the accused having been fully aware of the alleged fraud committed by her husband, was determined not to return the gold ornaments nevertheless induced the complainant to make payment clearing the outstanding loan and thereby caused a wrongful loss of Rs. 9,333.20.

(3.) There is no dispute that complainant's husband was an employee of the Bank in question. As per the assertion in the complaint petition, the complainant had made out a case that the accused dishonestly induced her to deliver this amount causing to the complainant sufficient damage and harm in respect of her property. The learned Magistrate on a perusal of the complaint petition took cognizance under S. 406 and 420, IPC. on 9-3-88 against the accused but after having gone through the evidence came to a conclusion that no case was made out under S. 420, IPC and as such framed charge against the accused only under S. 406, IPC on 6-7-88. The defence started adducing its evidence on 27-3-89. It is not disputed that the complainant did not challenge this order, i.e. dated 6-7-88 passed by the Magistrate framing the charge against the accused under S. 406, IPC only and having refused to proceed under S. 420, IPC. Only on 3-4-89 on which date the Misc. Case was filed before the Magistrate under S. 216, Cr. P.C. with a prayer to frame the additional charge against the accused under S. 420, IPC. The court, however, refused to entertain such a prayer as according to it the court had already considered the case of the accused and had refused to frame the charge under S. 420, IPC by its order dated 6-7-88. It is evident from the evidence of P.W. 1 and D.W. 1 adduced in complaint case that the accused had dishonestly induced the complainant to deposit the money knowing fully well that in spite of the payment, mortgaged gold shall not be released to her. In order to constitute an offence under S. 7420, IPC., fraudulent or dishonest intention of the accused in inducing the person deceived to deliver the property is to be proved or would show that the person was so induced intentionally to deliver the property.