Akhilesh Rana vs State of Jharkhand

Heard learned counsel for the parties.Â

The sole accused / opposite party no.2 herein has been acquitted by the learned Additional Chief Judicial Magistrate, Giridih of the charges under

Section 420, 406 of the Indian Penal Code by the impugned judgment dated 11.12.2017 passed in Complaint Case No. 1192 of 2005. The complainant/

petitioner herein seeks grant of special leave to appeal against the impugned judgment.Â

As per the complaint case, the accused persuaded the complainant to purchase Marshal Jeep bearing Registration no. MH 12 AF-4159, Engine

no.DX308016, Chassis no. MRL750VIM2JXDX308016 at the cost of Rs.2,26,551/-. The jeep in question was handed over on 28.11.2003 in the

presence of witnesses Pradip Kumar Mahto, Md. Safique, Mumtaz Ansari, Riyaz Ahmad and Naresh Mistry in lieu of the payments made to the

accused on the basis of which a sale agreement was prepared. The accused signed on the same and other witnesses named above also put their

signature thereupon. As per the agreement, the accused was to ensure transfer of the ownership of the jeep in the name of the Complainant within a

time period, failing which, the accused would return the money and take back the jeep. It is alleged that on 15.12.2003 the accused came to the house

of the complainant and conveyed that till the papers of transfer of ownership are not prepared, jeep, which is standing in the house of the complainant

be returned to him. It was in the presence of the witnesses Ganesh Mistry and Loknath Mistry that the jeep was handed over to the accused who took

it back to his place. On inquiry on 25.12.2003 the accused told him that the no objection certificate was to be verified from the RTO, Pune for which

more than one month time might be consumed. He asked the complainant to come back after one month when the papers as well as the jeep would be

returned. The accused kept on dillydallying the matter and later on, on 09.02.2004 the complainant learnt that the Marshal Jeep had met with an

accident while going from Phusro to Dumri in which driver Shankar Mahto died. This accident was registered as Dumri P.S. Case No. 11 of 2004.

Even thereafter when the complainant approached the accused for return of the money, the same was refused. Later on, on 10.08.2005 the

complainant again went to the house of the accused with witnesses Pradip Kumar Mahto, Md. Safique and Naresh Mistry demanding the money.

However the accused not only denied to return the amount rather stated that he had no intention to sell the jeep. Thereafter the complaint case was

instituted and after solemn affirmation and inquiry, summon was issued upon the accused. Charges were framed under Section 406/402 of the Indian

Penal Code and explained to the accused on his appearance to which he pleaded not guilty.Â

During the course of trial, 4 witnesses were examined by the complainant namely CW1 Ganesh Mistry, CW2 Loknath Mistry, CW3 Riyaz Ahmad

and CW4 Akhilesh Rana, the complainant himself. The complainant exhibited the following documents:- Ext.1- order dated 10.02.2014 and 12.07.2006

passed in Dumri P.S. Case No. 11 of 2004 and Ext.2-Final form submitted in Dumri P.S. Case No. 11 of 2004.Â

The statement of the accused was recorded under Section 313 of the Criminal Procedure Code on 09.06.2009. The defence examined 2 witnesses

namely DW1 Munshi Mahto and DW2 Yugal Kishore Yadav. The accused exhibited Ext.A being the judgment passed in Money Suit No. 04 of

2005.Â

The learned Trial Court analyzed the evidences on record and returned a finding of acquittal as ingredients of offence under Section 420 and 406

could not be established by the complainant party.Â

We have heard learned counsel for the petitioner and learned A.P.P. and gone through the impugned judgment and the material discussion on the

evidence on record as rendered by the learned Trial Court. Learned counsel for the petitioner has submitted that the learned Trial Court has

committed error in the appreciation of evidence on record which has led to the acquittal of the accused. All the complainant witnesses have deposed

in support of the complainant’s case but the learned Trial court has without any reason disbelieved their consistent statements. The accused had

indulged in cheating by not returning the money nor the jeep in question to the Complainant, after a proper sale transaction between the parties. The

ingredients of Section 406 and 420 of the I.P.C are therefore fully established. Â

Learned A.P.P. has supported the findings rendered by the learned Trial Court on the point of acquittal.Â

From perusal of the record, it is evident that though the entire case of the complainant was based upon the sale agreement relating to the transfer of

Marshal Jeep by the accused in favour of the complainant, but no such agreement or papers of the vehicle were adduced as evidence to substantiate

the said allegation. On the other hand though the transfer of jeep to the Complainant appears to be an admitted case of both parties, however the

return of the vehicle on 25.12.2003 to the accused do not seem to be established by any cogent evidence on behalf of the complainant. In the absence

of any sale agreement, the allegation relating to reciprocal promise of transfer of ownership of the vehicle to the complainant did not seem to have

made out on the part of the complainant and his witnesses. The other allegation relating to accident while the jeep was in the custody of the accused is

not made out from the discussion of the material evidence on record. The driver and the khalasi of Marshal Jeep, both were of village of complainant

whereas the accused was living at a different village at Tirla Police Station, Bagodar, which is 10/15 Km from Dumri. Learned Trial Court therefore

did not find any substance in the accusation that the accused had employed the driver and khalasi of the same village to which the complainant

belonged and was still retaining the vehicle in his custody. Learned Trial Court also found that out of the 4 witnesses examined by the complainant, 3

were the complainant, his maternal brother as well as his cousin brother. They appeared to be interested witnesses. As such the ingredient of Section

420 of the I.P.C was not established. Based on the same material evidence on record, learned Trial Court did not find the ingredient of entrustment of

the property and its breach committed by the accused to constitute the offence under Section 406 of the I.P.C. As such the accused was acquitted of

the charges.Â

In view of the entire discussion made above and on consideration of submission of learned counsel for the parties, we do not find that any good

grounds have been made out to grant special leave to appeal in favour of the petitioner. Accordingly, the Cr.M.P is dismissed.Â

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