Ishwar Dayal vs Inder Sain

V.S. Aggarwal, J.

Ishwar Dayal had filed a criminal complaint against Inder Sain. It pertained to offences punishable under Sections 420/467/468 and 471 of the Indian Penal Code. The learned Chief Judicial Magistrate, Jind on 23.9.1986 on basis of the evidence recorded held that prima facie respondentInder Sain had committed the offences punishable under Sections 420/191 IPC. He preferred a revision petition in the Court of Sessions. The learned Sessions Judge, Jind on 31.1.1989 accepted the revision petition and set aside the order passed by the learned trial court. The proceedings against the respondent were quashed.

The relevant facts are that one shop situated in Sadar Bazar, Jind is alleged to be owned by the Punjab Wakf Board. It was contended in the complaint that petitioner and Matu Ram have been in possession of the shop in question for the last more than 35 years as tenant. Matu Ram was the real uncle of the petitioner and had adopted the petitioner as a son. Matu Ram died in the year 1953. In the records of the Wakf Board Matu Ram and Ishwar Dayal were shown as tenants. In the year 1969 the respondent entered into a partnership with the petitioner. It was specifically written in the partnership deed that the petitioners shall remain tenant in the shop. It is, however, contended that intention of the respondent became dishonest. In order to get the tenancy of the shop in favour of the petitioner terminated, he fraudulently filed an application before the Punjab Wakf Board. The respondent got the tenancy changed in his name. On basis of the application and the affidavit of the respondent, the tenancy was changed in his name w.e.f. 1.7.1978. It was the case of the petitioner that respondent is the grandson of Charnu Mal and not Matu Ram. He had filed a false affidavit in order to cause harm to the petitioner.

The learned trial court after recording the preliminary evidence summoned the respondent with respect to offences punishable under Sections 420/468/471 of the Indian Penal Code. The respondent had put in appearance and the petitioner had led the evidence. On appraisal of the evidence recorded before framing the charge, the learned Chief Judicial Magistrate felt that respondent has not prima facie committed an offence punishable under Sections 468/471 IPC. However, it was prima facie held that respondent has committed the offence punishable under Sections 420/199 IPC. The respondent preferred a revision petition in the Court of Sessions and the learned Sessions Judge as already pointed above accepted the revision petition. It was held that the affidavit sworn by the respondent was not in order. It was not even stamped by the Oath Commissioner and, therefore, was invalid. Furthermore, it was held that officer of the Wakf Board before whom the affidavit was produced, was not authorised by law to receive the affidavit. With respect to the offence punishable under Section 420 IPC also the findings of the learned Sessions Judge were that there was no loss caused to the petitioner and, thus, he was not cheated. With these basic findings, the order of the learned Chief Judicial Magistrate was set aside. Aggrieved by the same, the present petition has been filed by the complainant petitioner.

The first and foremost question agitated on behalf of the petitioner was that the learned Sessions Judge could not have allowed the revision petition because against an order directing the framing of the charge, no revision petition is maintainable. It was argued that it was an interlocutory order. Under subsection (1) of Section 246 of the Code of Criminal Procedure, if when evidence has been taken, the Magistrate is of the opinion that there is ground for presuming that accused has committed an offence which the Magistrate is competent to try, the charge shall be framed. Subsection (1) of Section 246 Cr.P.C. reads :

"246(1). If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him he shall frame in writing a charge against the accused."

With respect to the plain language referred to above, there is no controversy. But under subsection (2) of Section 397 Cr.P.C., no revision petition is maintainable against an interlocutory order passed in any enquiry, trial or appeal. Can an order directing that prima facie case is drawn and charge be framed is called an interlocutory order ? It is felt that it should not be so described. The two judgments of the Supreme Court on the subject can well be noticed. In the case of Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47, a clear distinction was drawn as to what would be an interlocutory order. In paragraph 13 the Court held :

"In S. Kuppuswami Rao v. The King, 1947 FCR 180 : AIR 1949 FC 1, Kania, C.J., delivering the judgment of the Court has referred to some English decisions at pages 185 and 186 (of FCR) : (at p. 3 of AIR). Lord Esher M.R. said in Salaman v. Warner, (1891) 1 QB 734 "If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory." To the same effect are the observations quoted from the judgments of Fry L.J. and Lopes L.J. Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court [at that time there was no bar like Section 397(2)] was not a "final order" within the meaning of Section 205(1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion, if this strict test were to be applied in interpreting the words "interlocutory order" occurring in Section 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one."

Reliance further was being placed on the decision in the case V.C. Shukla v. State through C.B.I., AIR 1980 SC 962. Herein once again a clear distinction was drawn as to what would be an intermediate order and an interlocutory order. An order framing the charge was described to be an interim order. In the cited decision, the decision rendered in the case of Madhu Limaye (supra) was not disapproved but it was held that it has no application to the interpretation of Section 11 of the Special Courts Act, 1979 because it excludes the provisions of the Code of Criminal Procedure. It was in that light that the Supreme Court held in the case of V.C. Shukla (supra) that an order framing the charge was an interlocutory order. The ratio of the decision, therefore, will not apply in all cases that arise under the Code of Criminal Procedure. It follows from the above that order framing the charge is not an interlocutory order but an interim order. A revision petition against such an order which affects the rights, therefore, would be maintainable. The said contention so raised consequently is rejected. To the same effect is the decision of this Court in the case of Karam Singh v. Gurcharan Singh, 1984 Criminal Law Times 33.

Taking up the case on its merits, so far as Section 199 IPC is concerned, it is being reproduced below for the sake of facility :

"199. False statement made in declaration which is by law receivable as evidence. Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence."

The above quoted provision reveals that if any declaration is made before a person authorized under the law and if it is false declaration/statement, then besides other conditions being specified, the person can be held guilty of the offence punishable under Section 199 IPC.

In the present case, it is asserted that respondent filed an affidavit which was incorrect and false. But the learned Sessions Judge rightly noted in terms that the affidavit was not in order. It was not sworn as to which part of the affidavit was true to his knowledge or belief. Reference with advantage may be made to the decision of this Court in the case of Harjeet Singh v. State of Haryana, 1988(1) Chandigarh Law Reporter 81 : 1987(2) RCR (Crl.) 217. While considering a question as to verification of the affidavit, this Court held :

"The verification of the affidavit is required to be either on knowledge or on information and it should show specifically which part of the affidavit is verified on deponent''s knowledge and which part is verified on deponent''s information. The whole of the affidavit in this case has been verified on the basis of knowledge and information. Such affidavit cannot be taken into consideration. In support, a Division Bench Judgment of this Court in State of Punjab v Partap Singh, 1978 C.L.R. (P&H) 83 is referred to. Excluding the affidavit of Karan Singh, A.S.I. Exhibit P.X., we are left with no evidence as to when this sample of the opium was deposited in the Malkhana and when it was sent for chemical analysis. Such an important link of evidence is missing and exclusion of this affidavit goes to the root of the case. The petitioner is entitled to benefit of doubt on this score."

In the present case admittedly the verification was not made as required under the law. Therefore, it must be held that the affidavit could not be taken into consideration. Once the affidavit is invalid and cannot be taken into consideration, it will have no legal effect. Otherwise also there is nothing on the record to indicate that officer of the Wakf Board was authorised by law to receive the affidavit as evidence. Being so the ingredients of Section 199 IPC were not satisfied.

Corelated with the same was the contention as to if Section 420 IPC is attracted. The argument of the respondent''s counsel was that if at all the Wakf Board was cheated and not the petitioner. Cheating has been defined under Section 415 IPC to be :

"415. Cheating Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

Explanation. A dishonest concealment of facts is a deception within the meaning of this section."

The relevant provision pertaining to cheating under the Indian Penal Code reveals that the accused should by deceit or adopting fraudulent or dishonest means, adduce (induce ?) a person to deliver any property or to do any act which if not so deceived, he would not do so. Most important is that it should cause damage or harm to that person in body, mind, reputation or property. The damage, therefore, has to be to the person deceived. Herein the person deceived was the Wakf Board. There is no indication that there was any damage to the Wakf Board to the reputation or the property. The petitioner is not the person cheated. He cannot, therefore, make a grievance of the same. If any loss is caused to the petitioner, he cannot complain in this regard. More close to the facts of the present case are the observations in the case of V. Seetharama Rao v. Govt. of Mysore, AIR 1954 Mysore 9. It was observed :

"The act or omission must be such as to cause or is likely to cause damage or harm to the person deceived. No offence of cheating can be said to have been committed if one person is induced by deception to do or omit to do something and this act or omission causes or is likely to cause damage or harm to another person."

The decision quoted above supports the view expressed above. It follows that the petitioner cannot be held to have been cheated. Therefore, the learned Sessions Judge rightly had allowed the revision petition.

For these reasons, the petition being without merit must fail and is dismissed.