Md. Alam vs State Of Jharkhand

The lawyers have no objection with regard to the proceeding, which has been held through video conferencing today at 11.00 A.M. They have no

complaint in respect to the audio and video clarity and quality.

Heard learned counsel appearing for the petitioner(s) and the learned Counsel for the State.

By filing this application, petitioner has challenged the order dated 18.9.2017 passed by learned Additional Sessions Judge, Palamau upholding the

order dated 26.3.2015 passed by Chief Judicial Magistrate, Palamau, corresponding to G.R. No. 353 of 1997 arising out of Sadar (T) P.S. Case No.

128 of 1997. The order of the trial court dated 26.3.2015 is also under challenge. By the impugned order, the trial court has exercised jurisdiction under

Section 216 Cr.P.C and directed that additional charge be also framed under Section 420 IPC.

Counsel for the petitioner submits that petitioner was facing trial under Section 406 IPC and charge was framed on 22.7.1999. He submits that

prosecution had produced seven witnesses thereafter prosecution evidence was closed. On 03.01.2004 statement under Section 313 Cr.P.C was also

recorded. He submits that the case was running for arguments but on 25.3.2015 a petition was filed by the prosecution for adding Section 420 Cr.P.C.

He submits that after much delay, a petition was filed which is absolutely improper. He submits that there were no material to frame charge under

Section 420 Cr.P.C. He lastly submits that complainant is dead so there is no person to substantiate the charge under Section 420 Cr.P.C. He further

submits that document which is the basis to alter the charge is not on the police papers.

Learned Counsel for the State submits that at any stage prior to pronouncement of the judgment, the court has power to add and alter charge. He

submits that admittedly judgment has not yet been pronounced, thus court has exercised its jurisdiction prudently. He submits that there are materials

to frame charge.

I have gone through the impugned orders. Initially FIR was registered under Section 406, 420, and 120B IPC. Charge was framed under Section

406 IPC and trial proceeded. The prosecution during the stage of argument felt that charge should have also been framed under Section 420 IPC also,

thus a petition was filed by the prosecution and the said petition was allowed and the charge under Section 420 IPC was directed to be framed.

When I go through the complaint I find that there is an allegation that the petitioner had entered into an agreement/arrangement with the

complainant wherein the accused had to sell five thousand bags of Kendu Leaves to the complainant. It is the allegation that inspite of taking advance,

the petitioner has not sold the Kendu leaves, rather taking steps to sell the Kendu leaves to other persons.

Section 420 IPC provides punishment for cheating and dishonestly inducing a person to deliver property.

Section 415 IPC defines cheating. It is necessary to extract Section 415 IPC herein below:-

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"".

There are several illustrations given in the foot of the aforesaid section. Illustration (g) needs to be quoted herein below.

(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and

thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to

deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of

contract.

From illustration (g), I find that if a person deceives another one and obtains advance on the ground of selling some property and which he does not

intend to deliver the same will definitely make out an offence. Now in this transaction what was the intention of the accused person has to be gathered

only after evidence. Prima facie from the complaint I find that there is material which attracts Section 415 Cr.P.C. Thus, court below has rightly

altered the charge and added Section 420 Cr.P.C. I find no illegality in the same.

Further I find that there is no limitation in filing of application under Section 216 Cr.P.C. Charges can be altered prior to the delivery of the judgment

also. This case is fixed for argument for the parties. Thus, I find no illegality in amending the charge at the aforesaid stage.

So far as the claim of the petitioner is concerned that the complainant is already dead and there is no one to give evidence on the aforesaid point, I

find that even in absence of the complainant, if there are material witnesses who are at privy to the aforesaid fact can be a competent witness. Thus

on the ground that the complainant is dead, the prayer of the petitioner cannot be allowed.

Further the claim of the petitioner that the documents are not the part of the police papers, will have no relevance at this stage as because it is the

court below who has to look into the matter, after the charge is framed and the evidence is gathered.

Considering all the aforesaid fact, I find no merit in this application.

Accordingly the instant petition stands dismissed.

Since the trial is pending since long, I direct the trial court to take all possible steps so that trial can be concluded on a priority basis, preferably

within a period of nine months without giving unnecessary adjournments to the parties. The prosecution will give the list of additional witnesses to the

court below whom the prosecution intends to produce, within four weeks from today. If any additional witness is produced or if any additional

evidence is taken, the petitioner will have a right to cross-examine those witnesses.

The interim order dated 14.11.2019 stands vacated. The court below to proceed.