Gurdial Singh vs The State of Punjab

Jindra Lal, J.—Gurdial Singh was convicted u/s 420, Indian Penal Code, and sentenced to six months'' rigorous imprisonment and a fine of Rs. 100/- or in default of payment of fine to one month''s further rigorous imprisonment, by the Chief Judicial Magistrate, Kapurthala, His appeal has been dismissed by the learned Sessions Judge, Kapurthala. Gurdial Singh has come up in revision.

The prosecution version is that on the 9th of November. 19(sic), the first informant Sadhu Singh P.W. who was employed in Border Security Force and was on leave, learnt from his sister''s son Teja Singh that Gurdial Singh accused-Petitioner had a young woman to sell. Sadhu Singh was a bachelor and on the next day accompanied by Teja Singh, he met the accused at Kapurthala. The accused took thern to a Chubara and showed one Pritam Kaur to them. Sadhu Singh and Pritam Kaur had a talk and he was told by her that she was a widow and Gurdial Singh accused assured Sadhu Singh that Pritam Kaur was dependable and would live with him. A price of Rs. 1000/- was settled and on the next day i.e. 10th November, 1966. Sadhu Singh and Teja Singh came to Kapurthala and handed over Rs. 1000/- in the presence of Hari mitter head Constable Niranjan Singh to the accused Sadhu Singh and Teja Singh were taken to the Chubara and Pritam kaur curie away with Sadhu Singh, she lived with him for four days and disappeared on the fifth day. Sadhu Singh and Teja Singh thereupon went to Kapurthala and found Gurdial Singh accused and Pritam Kaur present in the Chubara. The accused declined to send Pritam Kaur with Sadhu Singh and Pritam Kaur also declined to go. Gurdial Singh accused also declined to return the money. As the leave of Sadhu Singh was to expire, he went to Nushehra, and from there sent a letter to the Superintendent of Police, Kapurthala, on the basis of which a case was registered against Gardial Singh accused and he was prosecuted.

Evidence was led to show that Gurdial Singh accused had taken the Chubara at a monthly rent of Rs. 10/- from Tilak Raj P. W. 2 and was living there with Pritam Kaur. Banta Singh P.W. 3 was produced to depose that the accused and Pritam Kaur had been living in the Chubara One rickshaw-puller, Amrit Lal P. W. 7, has also stated that the accused and Pritam Kaur used to go many times in his rickshaw.

There is not the least doubt that the accused did make money by purporting to sell Pritam Kaur to Sadhu Singh and that at the time he received the money from Sadhu Singh, he was aware that Pritam Kaur was not going to stay with Sadhu Singh and that she would come back to. him. It is also clear, that Sadhu Singh parted with his Rs. 1000/-on the assuarance given by the accused that Pritam Kaur was a reliable woman and would stay with him.

The only point which was urged before me is that even if the facts as stated by the prosecution are accepted, the Petitioner cannot be convicted for an offence u/s 420, Indian Penal Code. Learned Counsel for the Petitioner relied upon Emperor v. Jani Hira 15 I.C. 793. There an accused agreed to let her daughter on hire to the complainant for concubinage for one year in consideration of the complainant paying her Rs. 7. The complainant paid Rs. 35/- in advance and subsequently the accused refused to allow her daughter to go to the complainant or to return the money advanced to her. The accused was convicted of cheating. A revision was taken before the learned Sessions Judge and the learned Sessions Judge recommended the revision for acceptance by the High Court. In that case it was held by the learned Sessions Judge that there was no evidence to show that there was any fraudulent or dishonest intention on the part of the accused at the time she took the amount of Rs. 35 from the complainant and it was most probable that at the time she intended to let the complainant have her daughter and on changed her mind later. The learned Sessions Judge also observed that specific performance or compensation or refund would not be granted by the Civil Court as the agreement was void from the beginning for immorality it was opposed to public policy to allow the complainant to get indirectly what he could not get directly from the Court. In the end he observed that he was of the opinion that the offence of cheating was not committed. On the recommendation a Division Bench of the Bombay High Court accepted the revision for the reasons stated by the learned Sessions Judge. The learned Judges observed that the accused and the complainant had entered into a contract which was clearly void of immorality and, therefore, the complainant would not be entitled to obtain any relief from a Civil Court for its breach and that is no reason why he should be allowed to prosecute the accused on a charge of cheating. Conviction of the accused, therefore, was set aside.

It is conceded by the learned Counsel for the Petitioner that this authority has not been followed by any High Court in India. In fact in Yacoob v. Emperor, A. I. R. 1933 Ran 199 this authority was not followed. In that case certain persons were being tried for an offence. The accused represented that he could influence the Court in their favour and received money from those persons. The accused was prosecuted for cheating and it was urged for the defence that the money having been paid for an illegal purpose a prosecution for cheating in regard to that money could not be maintained. It was held that such a plea was untenable. Referring to 15 IC 793 the learned Judge observed that in his view that case did not purport to lay down a general principle applicable to such facts and circumstances as were set out in the case before the learned Judge.

In Banamali Tripathy and Another Vs. Emperor, a minor married "girl was taken by the accused and got married to one Bhirat Tihadi without disclosing that she was already married and the accused obtained Rs. 192 for this transaction. It was held by a Division Bench of the patna High Court that the accused had been rightly convicted u/s 420, Indian Penal Code. 8. In my view, therefore, an offence u/s 420, Indian Penal Code, has been clearly mide out against the Petitioner. The authority relied upon by the learned Counsel for the Petitioner is of no avail to him. In my view merely because Sidhu Singh may not be able to recover the amount from the Petitioner in any civil proceedings, does not mean that the offence of cheating has not been made out against the Petitioner. This revision, therefore, stands dismissed. The Petitioner is on bail. He is directed to surrender to his bail bonds and undergo the unexpired term of his imprisonment.