Bhikham Ram Khandey vs State of Madhya Pradesh Now State of Chhattisgarh

Hon''ble Shri Sunil Kumar Sinha, J.—This revision is directed against the judgment dated 11th of September, 1998 passed in Criminal Appeal No. 2/98 by the Sixth Additional Session Judge, Bilaspur. By the impugned judgment, the appeal filed by the applicant against the judgment and order dated 27th of December, 1997 passed in Criminal Case No. 113/95, whereby the applicant was convicted u/s 420 IPC and sentenced to undergo R.I. for 2 years and to pay fine of Rs. 1,000/-, has been dismissed.

The facts, briefly stated, are as under:

Bhakla Ram (PW-9) is cousin of Ram Kumar (PW-1). Both were unemployed. The applicant was working as Assistant Teacher in Middle School Takhatpur. In the month of July, 1987, the applicant met Ram Kumar (PW- 1) and Bhakla Ram (PW-9) and demanded Rs. 15,000/- from each for managing jobs for them. In fact, he cheated them and realized Rs. 12,500/- each from Ram Kumar (PW- 1) and Bhakla Ram (PW-9). He assured them to manage jobs of teacher-ship or clerk. Ram Kumar (PW-1) and Bhakla Ram (PW-9) had made arrangement of money by selling their landed properties. After realizing the money, on one day, the applicant took them to Bilaspur. He took them to the office of Dy. Director Education, got them seated in front of the office and went inside the office. After 10 minutes, the applicant came out from the office along with a person. He introduced him as Reader to District Education Officer and told the complainants that their work will be done. The applicant told Ram Kumar (PW-1) and Bhakla Ram (PW-9) to bring 3 copies of their photograph, caste-certificate, photocopy of mark- sheets and registration number etc. After 4-5 days Ram Kumar (PW-1) and Bhakla Ram (PW-9) met the applicant along with above documents. They handed over their documents to the applicant, on which the applicant again assured them and said that now they are not required to come and they would be getting employment shortly. When nothing was heard for about 1-1+ months, Ram Kumar (PW-1) and Bhakla Ram (PW-9) again went to Takhatpur and met the applicant. This time the applicant showed them a post-card and told Ram Kumar (PW-1) that his work has been done and he will get employment shortly. Ram Kumar (PW-1) took the post- card with him and returned to his village. Thereafter Ram Kumar (PW-1) and Bhakla Ram (PW-9) met the applicant repeatedly, who always assured them. When nothing was heard for a long time, Ram Kumar (PW-1) and Bhakla Ram (PW-9) went to Ex. MLA, Shiv Prasad (PW- 18), and they all met the applicant. They demanded their money, on which, the applicant assured them to return their money within a month. When the applicant did not return their money, Ram Kumar (PW-1) lodged a written report (Ex.-P/1) in Police Station Takhatpur, on which Crime No. 47/88 was registered against the applicant u/ss 420, 467 & 468 IPC. Various stamp papers relating to land transactions for certain amounts were seized during the course of investigation to show that the money was managed by Ram Kumar (PW-1) and Bhakla Ram (PW-9) by selling their landed properties at the relevant time. The post-card said to be handed over by the applicant to Ram Kumar (PW-1) was also seized. In the written report (Ex.-P/1), Ram Kumar (PW-1) also made mention about one Ashwani Kumar (PW-6) about whom the applicant had told him that Ashwani Kumar (PW-6) was 10th fail and the applicant had managed certificate of 11th pass and he also got transfer certificate of the concerned institution showing Ashwani Kumar (PW-6) as 11th pass. These documents were also seized during the course of investigation after the above report and a consolidated charge-sheet of cheating Ram Kumar (PW- 1), Bhakla Ram (PW-9) and Ashwani Kumar (PW-6), in the above manner, was filed against the applicant.

The learned Magistrate mainly relied on the testimonies of Ram Kumar (PW-1), Ashwani Kumar (PW-6) and Bhakla Ram (PW-9) and held that the applicant had cheated them in the above manner, therefore, he was liable for punishment u/s 420 IPC. The applicant was, thus, punished u/s 420 IPC and sentenced to undergo R.I. for 2 years and to pay fine of Rs. 1,000/- with default sentence of R.I. for 1 month, which was affirmed in appeal.

Mr. Rajeev Shrivastava, learned counsel appearing on behalf of the applicant, argued that Deo Narayan was a material witness who was not examined by the prosecution; I.O. was also not examined by the prosecution; there was delay in lodging the F.I.R.; the learned Magistrate has relied on 313 Cr.P.C. statement of the applicant; and there is non-compliance of the provisions of Section 157 Cr.P.C., therefore, the entire case of the prosecution fails.

On the other hand, Mr. R.R. Sinha, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgments passed by the courts below. He argued that Deo Narayan was not a material witness; giving of money in the above manner by Ram Kumar (PW-1) and Bhakla Ram (PW-9) was fully established by their evidence and also on the evidence of Basant Kumar (PW-7). Admission of receiving the money was also established by the evidence of Shiv Prasad Patel (PW-18).

I have heard learned counsel for the parties at length and have also perused the records of the courts below.

According to Mr. Shrivastava, Deo Narayan was a material witness who was not examined by the prosecution. Deo Narayan was the person in whose house the complainants had met the applicant and the applicant had made demand of Rs. 15,000/- from each complainant. Therefore, Deo Narayan was a witness of demand of money by the applicant on the pretext of arranging government jobs for the complainants. If by further evidence, the prosecution was able to prove the demand and acceptance by the applicant by cheating Ram Kumar (PW-1) and Bhakla Ram (PW-9), non-examination of Deo Narayan, who was only a witness of demand on account of cheating the complainants, would not be fatal to the prosecution. The courts below have held that after the negotiation, the applicant agreed to take Rs. 12,500/- each from Ram Kumar (PW-1) and Bhakla Ram (PW-9) and he received the above amount by cheating them before their parents and Basant Kumar (PW-7). There is also evidence to the effect as to how the money was managed by Ram Kumar (PW-1) & Bhakla Ram (PW-9). There is sufficient evidence to hold that the above money was received by the applicant on the pretext that he would manage government jobs for Ram Kumar (PW-1) and Bhakla Ram (PW-9). Basant Kumar (PW-7) is an independent witness. He clearly deposed that on 24th of July 1987 he along with Sewa Ram, Ram Kumar (PW-1), Bhakla Ram (PW-9), Gungdeo and Satan Ram went to the house of the applicant in village Takhatpur and Ram Kumar (PW-1) & Bhakla Ram (PW-9) both paid Rs. 25,000/- to the applicant which the applicant took on the name of managing government services for them. In light of the above clear and un-controverted evidence of Ram Kumar (PW-1), Bhakla Ram (PW- 9) and Basant Kumar (PW-7), non-examination of Deo Narayan would make no difference to the case of the prosecution.

About delay in lodging the F.I.R. (Ex.-P/1), it appears from the records that the applicant met the complainants in the month of July, 1987 and then the complainants managed the money by transferring their landed properties and paid Rs. 25,000/- (Rs. 12,500/- each) to the applicant. Thereafter the applicant called them several times and he also took them to the office of Dy. Director Education and he always assured them that they would be getting employment shortly. When the applicant did not manage government jobs for Ram Kumar (PW-1) and Bhakla Ram (PW-9) for a very long time then both met Shiv Prasad (PW-18) who was an Ex.MLA. Shiv Prasad (PW-18) deposed that he accompanied Ram Kumar (PW-1) and Bhakla Ram (PW-9) and all went to the house of the applicant in village Takhatpur and said him either to manage jobs for the complainants or to return their amounts. On this the applicant took one month''s time to return the amounts of the complainants. After one month Shiv Prasad (PW-18) and the 2 complainants i.e. Ram Kumar (PW-1) and Bhakla Ram (PW-9) again went to the house of the applicant. This time the applicant denied to recognize them. On this Shiv Prasad (PW-18) suggested Ram Kumar (PW-1) and Bhakla Ram (PW-9) to lodge complaint against the applicant and went along with them to the police station and the F.I.R. was lodged. The complaint is Ex.-P/1 which in fact was lodged on 11.3.88. In light of the above spontaneous development it cannot be said that there was delay in lodging the F.I.R. In fact, the F.I.R. was lodged on that very day on which the applicant showed his negative attitude towards the complainants and Shiv Prasad (PW-18) and did not recognize them which was a denial on the part of the applicant to return the money to Ram Kumar (PW-1) and Bhakla Ram (PW-9).

True that the Investigating Officer has not been examined in this matter and the information of lodging the F.I.R. has not been sent to the concerned Magistrate, but, only on account of failure of the prosecution in these counts the entire case of the prosecution cannot be thrown out. Not dispatching the F.I.R. at the earliest or not dispatching it at all are the circumstances which provide legitimate ground for suspecting that the F.I.R. was recorded much later than the stated date and time, thereby providing sufficient time to the prosecution to incorporate improvement and embellishment in its case. The defective investigation or lapse or omission committed by the Investigating Officer would not be a ground in itself to throw the entire case of the prosecution, particularly when the prosecution has been able to prove its case by independent, cogent, clinching and reliable evidence. Of course the caution is that the court has to be circumspect while evaluating the evidence in a case of such nature.

Mr. Shrivastava could not point out as to what prejudice was caused to the applicant by non-examination of the Investigating Officer. I have gone through the evidence of all important witnesses. There are no material contradictions in the evidence of these witnesses so as to requiring the defense to get an explanation from the Investigating Officer. In fact no case of prejudice has been made out in absence of examination of the Investigating Officer and, therefore, non-examination of the Investigating Officer cannot said to have prejudiced the defense of the applicant in the above facts and circumstances of the case. In appreciation of evidence of Ram Kumar (PW-1), Bhakla Ram (PW-9) and Basant Kumar (PW- 7), it was established that the applicant cheated the complainants and received Rs. 25,000/- for making arrangement for providing government jobs to them. Further by evidence of Shiv Prasad (PW-18), it was established that the applicant promised to return the above money to Ram Kumar (PW-1) and Bhakla Ram (PW-9) and ultimately he denied to return the money to them. No doubt, as stated above, ordinarily non-observance of the provision of Section 157 Cr.P.C. may cause shadow on the prosecution case. However, in the instant case, in light of the cogent, clinching and reliable evidence of above prosecution witnesses i.e. Ram Kumar (PW-1), Bhakla Ram (PW-9), Basant Kumar (PW-7) and Shiv Prasad (PW-18) the entire case of the prosecution cannot be thrown out. I am of the view that all the ingredients of the offence punishable u/s 420 IPC were proved beyond all reasonable doubts against the applicant on the evidence of above witnesses and in light of the above facts and circumstances, in the instant case, non-observance of provision of Section 157 Cr.P.C. was not fatal to the prosecution.

Mr. Shrivastava has lastly argued that the learned Magistrate has relied on statements of the applicant recorded u/s 313 Cr.P.C., therefore, the judgment vitiates. He cited the judgment of Devender Kumar Singla Vs. Baldev Krishan Singla, In the said judgment, the Supreme Court held that statement u/s 313 Cr.P.C. is not evidence. It is only accused''s stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice. I have no doubt about the above legal proposition, but the argument of Mr. Shrivastava appears to be misconceived. Mr. Shrivastava has referred to Para-9 of the judgment of the trial Court in which the learned trial Judge has referred to the answers of the 2 questions i.e. question No. 1 and 2 put to the applicant in his examination u/s 313 Cr.P.C. These questions are relating to the first meeting and general talks of the applicant with the complainants in village Foolwari which the applicant admitted. It is not a case that only on this admission the trial Court recorded the finding that the applicant met with the victims in the village and the money was demanded. In fact there is no whisper of demand etc. in these questions. The finding of the trial Court is independently based on oral testimonies of Ram Kumar (PW-1) and Bhakla Ram (PW-9) which are not at all shadowed and are held to be reliable by both the Courts on fact in issue. Therefore, the above argument advanced by Mr. Shrivastava cannot be accepted.

The applicant was also prosecuted for cheating Ashwani Kumar (PW-6) about whom a mention was made in the F.I.R. lodged by Ram Kumar (PW-1) that the applicant told him that he got documents of 11th pass for Ashwani Kumar (PW-6), whereas Ashwani Kumar was 10th fail. Ashwani Kumar (PW-6) has deposed in his evidence that he was also cheated by the applicant who realized Rs. 3,200/- from him for getting a mark-sheet of 11th pass whereas he was 10th fail. The alleged forged mark-sheet and transfer certificate showing Ashwani Kumar (PW-6) as 11th pass were also seized during the course of investigation. The witnesses relating to the concerned institution were examined to show that Ashwani Kumar never studied in their institution and he never pass Class-11th from their institution so as to issue the mark-sheet or transfer certificate on the name of Ashwani Kumar showing him as 11th pass. The above instance of cheating Ashwani Kumar (PW-6) was also rightly held to be proved by the courts below.

In Devender Kumar Singla (supra), which is also relied by Mr. Shrivastava, the Supreme Court held that "The essential ingredients to attract Section 420 are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security; and (iii) the mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating u/s 420. It is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things, it is not always possible to prove dishonest intention by any direct evidence. It can be proved by a number of circumstances from which a reasonable inference can be drawn."

On examination of the entire material available on record and considering the testimonies of the above prosecution witnesses i.e. Ram Kumar (PW-1), Ashwani Kumar (PW-6), Basant Kumar (PW-7), Bhakla Ram (PW-9) and Shiv Prasad (PW-18), I do not find any infirmity in the judgment and findings recorded by the courts below so as to interfere in this criminal revision. The revision, therefore, is liable to be dismissed and is hereby dismissed.