Ramdayal Mahto vs Emperor

Kulwant Sahay, J.—The petitioner was charged with an offence u/s 420, I.P.C., on the allegation that he had cheated one Dharam Das and had thereby dishonestly induced him to deliver a sum of Rs. 184 to the petitioner in cash. He was tried along with one Raghuber who was the brother of the petitioner and who was charged with the offence of abetment of the offence u/s 420, I.P.C. The petitioner was convicted u/s 417, I.P.C., and sentenced to pay a fine of Rs. 500; Raghuber was acquitted. On appeal the conviction and sentence of the petitioner have been affirmed by the learned Sessions Judge.

The facts of the case are shortly these: On 14th October 1925, a mortgage bond was written out purporting to be a bond by the petitioner Ramdayal to Dharam Das for a sum of Rs. 1,000 on the mortgage of certain properties. This mortgage bond was executed by the petitioner on 21st October 1925, and was duly registered. It appears, however, that on 20th April 1925, the petitioner had executed a deed of sale in respect of the property mortgaged 1928 P/43 & 44 to Dharam Das in favour of his nephew Chulhan Mahto, who was a minor.

The case of the complainant Dharam Das was that he was not aware of the execution of this deed of sale and that he took the mortgage on the assurance of the petitioner that the property was free from encumbrance and that there was no defect or dispute as regards title. The complainant lodged a complaint on 8th July 1926. In his petition of complaint the complainant stated that on or about 4th July 1926 he received an information that accused 1, who is the petitioner in the present case, in collusion with accused 2, had already executed a farzi sale-deed in favour of Chulhan Mahto, the minor son of accused 2, in respect of the same property which was covered by the mortgage bond; that the accused dishonestly concealed this fact from the complainant; and that, bad this fact been disclosed to him, the complainant would on no account have advanced the money and would not have refrained from bringing a suit against accused 1 for recovery of his dues under bahi khata accounts. The case of the complainant, therefore, was that the petitioner had executed a farzi deed of sale in favour of Chulhan prior to the execution of the mortgage and that the execution of those farzi deeds of sale had been concealed from him. In his evidence in Court the complainant admitted that the petitioner was really in possession of the mortgaged property and that the deed of sale of 20th April 1925, in the name of Chulhan Mahto, was really a farzi deed. Now if that is so, it is difficult to conceive how an offence of cheating has been made out and how the petitioner can be convicted u/s 417, I.P.C.

The learned Government advocate argues that the cheating consisted in the representation that the property mortgaged was free from encumbrance and also free from any defect or dispute as regards title. It has not been shown that the property mortgaged was not free from encumbrance or dispute as regards title. It is the common case of the complainant as well as of the accused that the deed of sale to Chulhan Mahto was a farzi transaction, that is to say, the property is clearly free from any encumbrance created by the deed of sale. The learned Government Advocate contends that although the complainant as well as the accused both admit that the dead in favour of Chulhan is a farzi deed, such statement will not be binding upon Chulhan, and Chulhan may In future claim title by virtue of the deed of sale.

No doubt there is a possibility of a claim being made by Chulhan, but surely the petitioner cannot be convicted of cheating on a mere possibility of a dispute being raised as regards title to the property in dispute.

Having regard to the facts found and to the facts established in the present case, it is clear that there has been no cheating in the present case, and that the conviction of the petitioner u/s 417, I.P.C., cannot stand. The conviction must, therefore, be get aside and the fine, if paid by the petitioner, will be refunded.