FAKIR CHARAN BEHERA Vs. NARAYAN NAYAK

JUDGEMENT

(1.) These two Criminal Revisions have been taken up together and heard analogously. Kailash Chandra Panda, petitioner in Criminal Revision No. 87/87 and Fakir Charan Behera, petitioner in Criminal Revision No. 15/ 87 have challenged the judgment and order passed by the First AddI. Sessions Judge, Cuttack in Criminal Appeal No. 76 of 1985 and No. 74 of 1985 respectively confirming the judgment dated 29.4.1985 passed by the Judicial Magistrate, 1st Class, Baramba in I.C.C. Case No. 116of1983, in acquitting the petitioner Kailash Chandra Panda of the charge under section 477-A of the I.P.C. and convicting both Kailash and Fakir, the petitioners in Criminal Revision Nos. 87/87 and 15/87 respectively under section 420 read with 120-B of the I.P.C. and sentencing each of them to pay a fine of Rs. 500/-; in default of the payment of fine amount to undergo 5.1. for two months. Fakir was not charged either under section 420 or 477-A of the I.P.C., but only charged under section 120-B of the I.P.C. As far as Kailash, the petitioner in Criminal Revision No. 87/87 is concerned, he was charged under all these sections, namely section 420 read with section 120-B as well as section 447 of the I.P.C. coming to the case of Fakir, the petitioner in Criminal Revision No. 15 of 1987, I find that Fakir was not charged under section 420, I.P.C. The only section under which he was proceed with was under section 120-B, I.P.C. As such, the order of conviction made against him under section 420 read with section 120- B of the I.P .C. cannot be sustained. I also find from the records that there is no material to show that there was any positive conspiracy between Fakir and Kailash to sustain a charge under section 120-B of the I.P.C. In such view of the matter, I set aside the conviction and sentence passed against Fakir, the petitioner in Criminal Revision No. 15/87 and acquit him of the said charges. Accordingly, Criminal Revision No. 15 of 1987 is allowed.

(2.) Coming to the next case, namely, Criminal Revision No. 87/87, it is necessary to state the facts in brief. According to the complainant Narayan, the complainant on 20.8.1983 had executed a registered sale deed in respect of Ac 0.30 dec. of property in favour of Fakir (the petitioner in Criminal Revision No. 15/87) for a consideration of Rs. 8000/- and had received Rs. 1,000/- as part payment of the consideration amount and the balance was agreed to be paid to the complainant at the time of delivery of the registration ticket by him (complainant). The balance consideration was not, however, paid. As alleged on 27.9.1983 the complainant made a written report to the Sub-Registrar (P.W. 7), complaining that the registration ticket had been taken away by the other accused Kailash Chander Panda (petitioner in Criminal Revision No. 87/87) who was the scribe of the sale deed and had not returned the same to him. P.W. 7, the Sub-Registrar made an enquiry on the allegation during which accused Kailash returned back the registration ticket to him (P.W. 7 the Sub-Registrar) on 3.10.1983. The complainant-Narayan, however, on 31.10.1983 made another registered sale deed, Ext. 1 cancelling the sale deed dated 30.8.1983 andon5.7.1983 lodged the complaint against these two petitioners and on such complaint petition, charge was framed against Fakir under section 120-B of the I.P.C. and against Kailash under section 420 read with 120-B as well as u/s. 477-A of the I.P.C. The allegation is that these two petitioners Kailash and Fakir had conspired to obtain the document by false inducement from Narayan ultimately to take away that registered sale deed from the Sub-Registrar's office without making payment of the balance consideration and for such purpose had obtained thumb impression of Narayan on the registration receipt after administering Ganja to Narayan. Both the courts below disbelieved the administration of Ganja to the informant namely Narayan, and the trial court found no material against Kailash to sustain conviction under section 477-A of the I.P.C. and acquitted him to that charge against which there was no appeal. The appellate court while convicting Kailash under section 420 read with 120-B, I.P.C. had relied on the evidence of P.Ws. 3, 6 and 9. My attention was drawn to the evidence of P.Ws. 3, 6, 7 and 9 which I carefully went through. As far as section 120 of the I.P.C. is concerned, I do not find any material available to sustain a charge against the petitioner Kailash either. All that Kailash did is that he obtained the receipt from Narayan for the perpose of ascertaining the date of delivery of the document that was indicated on the document. There is no material to show that he parted with that document in favour of Fakir nor made any attempt to take away the document from the Sub-Registrars office. It is not disputed that the document was still in Sub-Registrars office and no attempt had been made by either of these petitioners to take away that document from the Sub-Registrars office by producing the registration ticket. It is also not the evidence led in the case that after taking the registration ticket, Kailash had handed over to Fakir for some wrongful gain to him causing wrongful loss to Narayan nor there is any material to show that by obtaining this registration ticket he had gained the benefit unlawfully to the detriment of the informant. No evidence has been also led to show that the request by Kailash to the informant to part with the registration ticket was fraudulently done with any illegal motive or design. The registration ticket having been received from the informant for the purpose of finding out the exact date mentioned on the receipt for delivery of the registered sale deed without any further evidence cannot be said to be actuated by any fraudulent motive. In such view of the matter, I also do not find that a case under section 420 of the I.P.C. has also been made out against Kailash. In view of this, I set aside the conviction and sentence made against accused Kailash and set him at liberty.

(3.) Both the revisions are allowed. The impugned order convicting the accused persons and the sentence passed against them is set aside and they are set at liberty. Both revisions allowed.