IN THE COURT OF THE SUB DIVISIONAL JUDICIAL MAGISTRATE (M), CHARAIDEO AT SONARI IN SIVASAGAR DISTRCT. G.R. CASE NO. 133/2012 U/s 420, IPC. State. vs.

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1 P a g e 1 IN THE COURT OF THE SUB DIVISIONAL JUDICIAL MAGISTRATE (M), CHARAIDEO AT SONARI IN SIVASAGAR DISTRCT. G.R. CASE NO. 133/2012 U/s 420, IPC. State vs. Muhikanta Chutia, S/o Late Upen Chutia, Domor Dalong, PS. Moranhat, Dist- Sivasagar. PRESENT: Mishbahul Hassan Ansari, A.J.S. ADVOCATES: Sub Divisional Judicial Magistrate, Charaideo, Sonari. For the Prosecution: Mr. Basanta Gogoi, Ld. APP. For the Defence: Mr. Suresh Pareek, Ld. Advocates. Charge framed: 01/02/2013. Dates of Evidence: 02/09/13, 11/04/13, 13/06/14, 14/07/14, 28/10/14, 26/11/14, 20/03/15. Date of Argument: 27/07/2015. Date of Judgment: 10/08/2015. JUDGMENT 1. The prosecution s case is that on 22/11/2011 the complainant namely Pranab Khanikar, S/o Sashi Khanikar, R/o Tiloijaan, PS- Moran, Dist- Dibrugarh lodged a complaint in this court to the effect that the accused persons namely Muhikanta Chutia and Jiten Chutia fraudulently took Rs. 40,000/- (Rupees forty thousand) from him as advance payment after executing a deed of agreement for sale of land wherein the accused persons promised to sell their 2 bighas of land

2 P a g e 2 covered by dag no. 79 pertaining to patta no.130. But the accused persons failed to hand over the possession of the said land to him as it is found that the accused persons have no right, title and interest over any land covered by dag no.79 pertaining to patta no.130. That when the complainant asked the accused persons to return the advance payment of Rs. 40,000/- (Rupees forty thousand) that they had taken from him, the accused simply did not return the money. Hence, the case. 2. This court forwarded the instant complaint petition to the Officer-in-charge of Moranhat police station to register a case and to submit FF after investigation. On receipt of the complaint petition the Officer-in-charge of Moranhat PS registered a case vide Moranhat PS case no. 45/12, u/s 420 of the IPC dated 24/03/12 and investigated the case. However, after completing the investigation, the IO laid down the Charge Sheet u/s 420 of the IPC against only Muhikanta Chutia. Jiten Chutia who had been named as co accused in the complaint petition was not sent up for trial. In fact Jiten Chutia had been made a witness in the case by the IO. 3. On appearance the copies of relevant documents were furnished to the accused person u/s 207 of the Cr.P.C. After perusing the materials on record and hearing both the parties, my predecessor in office framed formal charges against the accused person Muhikanta Chutia for offence punishable u/s 420 of the IPC. The accused person pleaded not guilty and claimed trial when the particulars were read over and explained to him. 4. The prosecution side examined 7 nos. of witnesses including the investigating officers. The statement of the accused person was recorded u/s 313 of the Cr.P.C. He denied that he had committed any offence. The accused declined to adduce any evidence in his defence. 5. I heard the arguments advanced by the learned counsel for the accused person and the learned APP for the state. Perused the materials on record and scrutinized evidence on record.

3 P a g e 3 POINTS FOR DETERMINATION. 6. The following points for determination have been taken up for discussion in the case: i. Whether the accused person cheated the complainant by dishonestly inducing the complainant to deliver him Rs. 20,000/- (Rupees twenty thousand) and thereby liable to be punished u/s 420 of the IPC? DISCUSSION, DECISIONS AND REASONS THEREOF 7. Sri Pranab Khanikar deposed as PW.1 and stated that in the year 2011 the accused entered into an agreement with him that he (accused) would sell 2 bighas of his land to him (PW.1) for a consideration of Rs.95,000/- (Rupees ninety five thousand). That the accused received a sum of Rs. 20,000/- (Rupees twenty thousand) as an advanced payment for the same. That when he went to take the possession of the land, he found that the land has been sold to someone else. That when he asked the accused to return the advance payment of Rs.20,000/- (Rupees twenty thousand), the accused kept dilly dallying the matter and did not pay the money, ultimately. So, he lodged the instant case through the court. He proved the complaint petition which is marked as Exhibit- 1 and his signature thereon is marked as Exhibit-1(1). 8. Sri Nikhil Saikia deposed as PW.2 and stated that accused Muhi Kanta Chutia and one Jiten Chutia agreed to sell their 1 and ½ bighas of land to PW.1 for a consideration of Rs. 40,000/- (Rupees forty thousand) only. That he wrote the deed of agreement that the accused and one Jiten Chutia executed. That PW.1 handed over the amount of Rs.40,000/- in the house of accused Muhi Kanta Chutia. That the amount of Rs.40,000/- was equally divided by accused Muhi Kanta and one Jiten Chutia. However, the accused and Jiten Chutia failed to

4 P a g e 4 give possession of the land to PW.1 and so, Jiten Chutia returned Rs. 20,000/- (Rupees twenty thousand) to PW.1. But the accused did not return the money to PW.1 despite several requests. He proved the deed of agreement which is marked as Exhibit-2 and his signatures as scribe thereon are marked as Exhibit- 2 (1) and Exhibit-2 (2). 9. Sri Prasanta Chutia deposed as PW.3 and stated that accused Muhi Kanta Chutia sold 1 and ½ bighas of land to PW.1 for Rs. 40,000/- (Rupees forty thousand). That relevant document was executed and he signed the said document as witness. That the amount of Rs. 40,000/- was equally divided by the accused and one Jiten Chutai. That accused neither give any land nor return the money to PW.1 whereas the Jiten Chutia gave land to PW.1 worth Rs. 20,000/- (Rupees twenty thousand). He proved his signature in Exhibit-2 as witness which is marked as Exhibit-2(3). 10. Sri Jiten Chutia deposed as PW.4 and stated that the accused is his paternal uncle. That he and the accused entered into an agreement with the complainant (PW.1) to sell their 1 bigha of land for Rs. 40,000/- (Rupees forty thousand). That they took Rs.20,000/- (Rupees twenty thousand) each. However, the accused neither gave any land nor returned the money to PW.1. That he mortgaged his 1 bigha oland to PW.1 in lieu of the sum of Rs. 20,000/- (Rupees twenty thousand) that he received from PW Sri Santana Handique who is the wife of the complainant (PW.1) deposed as PW.5 and stated that the accused and Jiten Chutia (PW.4) executed a deed of agreement to sell 2 bighas of land to her husband (PW.1) for Rs. 95,000/- (Rupees ninety five thousand). That the accused and Jiten Chutia (PW.4) took Rs. 40,000/- (Rupees forty thousand) from her husband (PW.1) as advance payment. That it was agreed upon that the remaining money would be paid at the time of registration. However, they neither sold any land nor returned the money to her husband (PW.1). So, her husband lodged the instant case. That Jiten Chutia sold on 1 bigha of his land to her husband (PW.1) immediately after the instant case was filed. But the accused did not sell his share of land to her

5 P a g e 5 husband. That the police seized the deed of agreement which is marked as Exhibit Sri Rajen Chetia deposed as PW.6 and stated that in the year 2012 the accused and Jiten Chutai (PW.4) agreed to sell 2 bighas of their land to PW.1 for a consideration of Rs.95,000/- (Rupees ninety five thousand). That the accused and Jiten Chutia took Rs. 20,000/- (Rupees twenty thousand) each from PW.1 as advance payment for the land and executed a deed of agreement. That as the accused and Jiten Chutia failed to sell the land as per the agreement the PW.1 filed a case against them. That Jiten Chutia returned Rs. 20,000/-(Rupees twenty thousand) to PW.1 after he (PW.1) lodged an FIR in Moranhat police station. That the police seized the deed of agreement and took his signature in the seizure list as witness. He proved the seizure list which is marked as Exhibit- 3 and his signature thereon is marked as Exhibit-3(1). 13. The IO namely Tirtha Dihingia deposed as PW.7 and stated that on being assigned to investigate the case he visited the PO and interrogated the witnesses and recorded their statement. That he arrested the accused persons after having found sufficient material against him. That he seized the deed of agreement (Exhibit-2) from PW.1 vide seizure list. He proved the seizure list which is marked as Exhibit-3 and his signature thereon is marked as Exhibit- 3(2). That he submitted charge sheet against the accused Muhi Kanta Chutia for offence punishable u/s 420 of the IPC after concluding his investigation. He proved the charge sheet and marked the same as Exhibit-4 and his signature thereon is marked as Exhibit-4(1). 14. The complainant (PW.1) in his testimony before this court had contradicted himself as far the allegation against the accused is concerned. The complainant (PW.1) in his testimony stated that the accused had sold the land to someone else despite the fact that the accused agreed to sell the land to him after taking advance payment of Rs.20,000/- (Rupees twenty thousand) from him. That when he asked the accused to return the advance payment of Rs.20,000/- (Rupees twenty thousand), the accused kept dilly dallying the matter and did

6 P a g e 6 not return the money. The remaining prosecution witnesses stated in unison that accused Muhi Kanta Chutia neither sold the land to the PW.1 nor returned the advance amount of Rs. 20,000/- (Rupees twenty thousand) to PW.1 as agreed upon by the accused. 15. I have perused the deed of agreement (Exhibit-2) which says that Jiten Chutai (PW.4) and the accused Muhi Kanta Chutia received an advance payment of Rs.40,000/- (Rupees forty thousand from) from Pranab Khanikar (PW.1) as they had agreed to sell 2 bighas of land pertaining to patta no. 130 covered by dag no. 79 for a total consideration of Rs.95,000/- (Rupees ninety five thousand). That the remaining amount of consideration money would be paid at the time of registration of the land. 16. It is to be noted here that Jiten Chutia (PW.4) returned his share of the advance amount of Rs. 20,000/- (Rupees twenty thousand) to the informant (PW.1) immediately after the lodging of the instant case. Therefore, the case did not proceed against him and instead he has been made a witness in the case. Be that as it may, it is not mentioned in the deed of agreement (Exhibit-2) as to when the registration of the land would take place. No specific date or time frame for registration of the land is laid out in the deed of agreement (Exhibit- 2). The complainant in his evidence did precisely state as to whom did the accused MuhiKanta Chutia sell his land instead of selling the land to him (PW.1). It is also not precisely stated by PW.1 as to when did he demand the accused to return the money after the accused failed to sell him the land. It is not clear from the evidence on record if the complainant (PW.1) offered the remaining consideration amount to the accused in order to purchase the land. Furthermore, the complainant (PW.1) had contradicted himself by stating that the accused sold the land to someone else whereas in the complaint petition (Exhibit-1) he stated that the accused has no right, title and interest over any land covered by dag no.79 pertaining to patta no.130 and thus the accused cheated him by taking advance money. Thus this contradiction is a material contradiction and the same casts a doubt on the entire prosecution s case.

7 P a g e An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: (i) Deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or (iii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. 18. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. One of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention to cheat at the time of making initial promise or existence thereof from the very beginning of formation of agreement contract. 19. It is settled law, by a catena of decisions of Hon ble Supreme Court of India, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From the failure of the accused to keep promise subsequently, such a culpable intention right at the beginning i.e. at the time when the promise was made, cannot be presumed. 20. In the instant case there is no evidence on record to show that the accused had fraudulent or dishonest intention right at the beginning. In fact there is no evidence to show that the accused refused to sell his land to PW.1 despite being offered the balance consideration amount. In fact the complainant (PW.1) did not state in his testimony that he had offered the balance consideration amount to the accused but yet the accused refrained from selling his land to him.

8 P a g e The ingredients of Section 420 of the Penal Code are as follows: (i) Deception of any persons; (ii) Fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. In the instant case no act of inducement on the part of the accused has been alleged by the complainant. No allegation has been made that the accused had an intention to cheat the complainant (PW.1) from the very inception. 22. In light of the above discussion of evidence and upon full appraisal of the evidence on record, coupled with my above reasons I hold that the prosecution has failed to prove that the accused is guilty of committing offence punishable u/s 420 of the Indian Penal Code. Hence, I acquit accused MuhiKanta Chutia of the charge under section 420 of the Indian Penal Code and set him at liberty forthwith. 23. The accused Muhikanta Chutai be released from jail forthwith, if he is not required in any other case. Inform the Superintendent of District Jail, Sivasagar. 24. The case stands disposed of on contest. Given under my hand and seal of this Court on this the 10 th day of August, 2015.

9 P a g e 9 APPENDIX Prosecution witnesses: 1. Pranab Khanikar....PW.1 2. Nikhil Saikia PW.2 3. Prasanta Chutia...PW.3 4. Jiten Chutia......PW.4 5. Santana Handique....PW.5 6. Rajen Chutia. PW.6 7. Tirtha Dihingia (IO)..PW.7 Documents exhibited by prosecution: 1. Exhibit-1...FIR. 2. Exhibit-2...Deed of Agreement. 3. Exhibit-3 Seizure list. 4. Exhibit-4 Charge Sheet. Defence witness: None Documents exhibited by defence: Nil.