RAJENDRA PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner has preferred this revision against his conviction under Sections 419, 329 and 420, I.P.C. and the Sentence of R. I. for one year on each count under Sections 419 and 420, I.P.C. and R I. for two months under Section 323, I.P.C.

(2.) THE indictment for which the Petitioner stands charged is that though he is not a qualified Kaviraj yet posing himself to be so, he undertook the treatment of p.w. 1 to cure him of eczema in 1 is band and in course of the treatment packed an injection m his right buttock receiving Rs. 15.50 from him towards his charges. After the injunction was pricked. p.w. 1 could hardly walk and on account of it suffered from fever and was bed ridden for two and half a months with the spot of the prick getting swollen and became septic with formation of pus for which he had to undergo an operation in the Government hospital at Patnagarh. In defence the Petitioner denied the occurrence though he claimed himself to be a Kaviraj hailing from a Kaviraj family of three generations "and having also obtained a certificate, M. O. IV. from an institute of his being a Kaviraj after passing an examination and of being versed in that science, but himself not practising it.

(3.) SECTION 419, I.P.C. deals with punishment for cheating by personation; whereas Section. 420. I.P.C., so far as relevant for the present case, deals with cheating and dishonestly inducing to part with opp party. Cheating by personation, "as defined in Section 416, I. P. G, is that the person concerned cheat by pretending to be some other person or representing that he is a person other than himself or what he really is. So far as the allegations against the Petitioner go it is not the prosecution case at all that he ever represented himself to be somebody else or that he is not a Kaviraj. It is its very admitted case that the Petitioner held out himself to be a Kaviraj and that he had the certificate M;. O. IV issued to him by the Kaviraj Training Institute, Cuttack. It was the 'Petitioner's case that he belongs to a family of Kaviraj of three generations standing and had studied and passed as a Kaviraj. His claim was refuted by the prosecution by evidence that the institute which granted the certificate to the Petitioner" was not a recogonised one as deposed to by p.w. 14, under the Indian Medicine Central Council Act, 1970 (Act 48 of 1970) (hereinafter referred to as "the Act"). It is thus their case that the Petitioner being not possessed of recognised qua lineation and being not enrolled either on the State Register or the Central Register of Indian Medicine, was not entitled to practise in Indian medicine. Even though such disqualification of the Petitioner to practise as a Kaviraj may be real under the provisions of the Act, yet that by itself does not establish that the Petitioner was personating himself as somebody else and Dot as a Kaviraj. So far as Section 419. I.P.C. goes, the relevant tact IS that the Petitioner was genuinely believing himself as kaviraj having been equipped with a certificate, though under a law passed in 1970 he was not entitled to practise as such. His indulging in practice in spite of the disentitlement might be an offence under Section 17 (4) of the Act making him 'liable for imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both, but that is a distinct offence by itself over which I express no opinion. But on the facts alleged an officer under Section 419 can badly be substantiated. Similarly, so far as Section 420, I.P.C. is Concerned, it must be said that the ingredients of the section have not been fulfilled. If the Petitioner genuinely believed himself to be a Kaviraj and embarked upon treating p.w.l, there can hardly be any element of creating there. To establish an offence of cheating, in the context it is necessary to he shown that from the beginning when the endeavour of treating was undertaken by the Petitioner, he never really intended to treat p.w. 1 as a Kaviraj but in reality wanted to defraud him by inducing him to part with money by making him believe that be was indeed treated by a Kaviraj and the while knowing himself to be not a Kaviraj at all.. Such is not the case with which the prosecution has come forward and hence a charge under Section 420 I.P. C. is not sustainable. Similarly the prosecution under Section 323, I.P.C. as presented by the prosecution is grossly misconceived.