Satish vs Kamruddin

Harmohinder Kaur Sandhu, J.

Kamruddin respondent filed a complaint against Satish, the present revision petitioner, and some other persons for offences under Sections 420, 467, 468 and 411 of the Indian Penal Code read with Section 149 I.P.C. on the allegations that Kamal and Ibrahim accused who were his relations took him to Gurgaon on 1.4.1977 and obtained one power of attorney from him in their favour with an intention to grab his land measuring 113 kanals 7 marlas situated in village Marokhra. On 14.4.1977 Kamal took him to Primary Land Mortgage Bank, Nuh and asked him to file an application for obtaining loan to the tune of Rs. 37,000/. Loan was sanctioned and land of the complainant was mortgaged as security. A cheque was issued by the bank in the name of Satish who was a dealer in tractors. Satish kept on promising that he would give a tractor to the complainant but in fact no tractor was handed over to him though a fictitious entry was made in the record showing that a tractor had been delivered. He lodged a complaint with Station House Officer, Palwal but police did not take any action.

After preliminary evidence was recorded the accused was summoned to face trial for offences punishable under Sections 420, 467 and 468 I.P.C. After recording precharge evidence the trial Court found that prima facie a case under Sections 420, 467 and 468 IPC was made out only against Satish petitioner and the other accused were discharged. On completion of the trial the accused was convicted for offences under Section 406, 467 and 468 IPC by Sub Divisional Judicial Magistrate, Palwal, vide judgment dated 19.4.1985 and he was sentenced to undergo rigorous imprisonment for one year for the offence under Section 406 IPC. He was further sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/ for the offence under Section 467 IPC and similar sentence was imposed upon him for the offence under Section 467 IPC. All the sentences were to run concurrently.

Against the judgment recording his conviction Satish filed an appeal which was decided by Additional Sessions Judge (III), Faridabad on 11.9.1985. In appeal conviction of the petitioner under Section 406 IPC was maintained while he was acquitted of the charge under Sections 467 and 468 IPC. By way of the present revision petition Satish petitioner has assailed his conviction under Section 406 IPC on the short ground that complaint against him was under Section 420 IPC. He was summoned to face trial for that offence and was duly charged. His conviction under Section 406 was legally erroneous.

I have heard the counsel for the parties.

The learned Counsel for the revisionpetitioner contended that the petitioner could not be convicted, for an offence under Section 406 IPC when there were no allegations against him for the commission of any offence under that Section. The complaint was filed for the offence under Section 420 IPC and it was pleaded that the petitioner and other accused had induced him by deceitful means to execute a power of attorney and then to apply for loan. There were no allegations that any property was ever entrusted to the petitioner which he misappropriated. A person who was charged for an offence under Section 420 IPC could not be convicted for the offence under Section 406 IPC as offence under Section 406 IPC was an antithesis of the offence under Section 420 IPC. Reliance in this behalf was made on the case Iqbal Singh Randhawa v. Satpaul Goyal, 1977(5) C.L.R. 134. In this case it was observed :

"An offence under Section 406 Indian Penal Code is in a way antithesis of the offence under Section 420 of the said Code. In a case for criminal misappropriation the property is voluntarily kept in the custody of the accused and in a case for cheating the accused by adopting deceitful means induces the complainant to part with the property. It is difficult to imagine how an accused person can be tried for these two offences in the same trial."

In the instant case as the petitioner was neither summoned to stand trial for an offence under Section 406 I.P.C. nor he was charged for that offence, he could not have been held guilty for the same and his sentence under Section 406 IPC is liable to be set aside on this ground alone.

As a result I accept this revision petition, set aside the conviction and sentence of the petitioner and acquit him of the charge under Section 406 IPC.

Revision allowed.