NAND KISHORE Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision by two persons, Nand Kishore and Hemraj against an order passed by the loamed Sessions Judge of Agra in appeal, convicting thorn of an offence under Section 424, I.P.C. It appears that the applicants were convicted by the trial Court under Section 418, I.P.C. but the learned Sessions Judge found that an essential ingredient of that offence had not been established by the evidence for the prosecution and he thereupon set aside the applicants conviction under that Section and proceeded to convict them under Section 424, I.P.C., maintaining the sentence of line imposed upon them. As the conviction by the learned Sessions Judge has boon challenged mainly on the ground that it is wholly illegal, it is necessary to set out a few relevant facts in order to develop the points of law which arise for consideration.

(2.) The applicant Nand Kishore is the manager of the local branch of the Motor and General Finance Company Limited at Agra. The head office of the company is at Delhi. The other applicant Hemraj is also an employee of the local branch at Agra and works under Nand Kishore. A part of the business of this company is the sale of motor cars and lorries on the hire-purchase system. It appears that some years ago the company sold three motor lorries on that system to one Bhagwan Das and a person named Shiv Dayal, who is the complainant in the case out of which the present application arises, stood surety for Bhagwan Das. Bhagwan Das failed to pay the instalments on the due date with the result that one of the lorries was seized by the company under the terms of the agreement between it and Bhagwan Das. Later on, Bhagwan Das again defaulted in paying the instalments due in respect of the other two lorries, one of which was numbered 1865-A A and is the subject of dispute in the case out of which this application arises. The company gave a notice to Bhagwan Das of its intention to seize the motor lorries under the terms of the agreement. In reply to this notice Bhagwan Das gave a counter-notice to the company saying that if his lorries would be seized by the company he would prosecute them in the Criminal Court as well as sue them in the Civil Court. 16 is alleged that this notice was given by Bhagwan Das at the instigation of Shiv Dayal, who was in fact the principal person. The result however was that the company stayed its hands and tried to settle the dispute by an agreement between the parties. For that purpose they called Shiv Dayal to the company's office at Agra where some conversation took place between him and one Ved Prakash, an official of the company attached to the head office at Delhi. Now the case set up by Shiv Dayal is that the company agreed to take one of the two lorries regarding which default had been made by Bhagwan Das and to leave the other No. 1865-AA with Shiv Dayal, leaving him to adjust the matter between himself and Bhagwan Das. In pursuance of that arrangement Shiv Dayal executed a fresh agreement on the hire purchase system on his own behalf in respect of the lorry No. 1865-AA and one Badri Prasad stood surety for him.

(3.) It is further alleged that Shiv Dayal settled the matter between himself and Bhagwan Pas by paying a sum of Rs. 300. Mow the case for the prosecution is that after the execution of the above-mentioned agreement by Shiv Dayal, which was signed on behalf of the company by the applicant Hemraj, the latter suggested that the former should send the lorry to the company's office at Agra after repairs with a view to get a permit from the police with the company's assistance. Acting upon this assurance Shiv Dayal sent the lorry a few lays later from Shamshabad, where he lives, to the company's office at Agra. Having thus secured the lorry, Hemraj and the other applicant, who is the manager of the local branch of the company at Agra, seized it on behalf of the company. Upon these foots Shiv Dayal charged the applicants with an offence under Section 418, I.P.C. The prosecution case very clearly was that the applicants had given a false assurance to Shiv Dayal and he, acting upon that assurance, had sent the lorry to the company's office at Agra, where the applicants seized it, so that he lost his property. If Shiv Dayal's allegation is true there can be no doubt that the applicants committed an offence of cheating, though the application of Section 418 is very doubtful. The learned toying Magistrate however found upon the evidence that Shiv Dayal's allegation relating to the circumstances in which he was induced to send the lorry to Agra was false. Upon that finding the learned trying Magistrate could not but have acquitted the applicants, because an essential ingredient of the offence of cheating had not boon established, In spite of that the learned Magistrate somehow persuaded himself into convicting the applicants, though the process of reasoning by which he arrived at that conclusion is rather difficult to understand.