Somanath Mohanty vs State of Orissa

S.K. Ray, J.—This is an application in revision filed by the sole petitioner against an order dated 28-4-66 passed by Sri. S. K. Patro,

Sessions Judge. Puri, confirming the order of conviction and sentence passed by Sri B. B. Das, Magistrate. 1st Class Khandapara dated 20-7-54.

The brief facts of the case an that on 12-6-63 at about 4 p.m. the petitioner overheard a conversation between the informant (P. W 1) and P.

W 2 that the homestead property of the former was going to be sold in execution of a decree against him and that he was in difficulty on that

account, and introduced himself to P. W. 1 as a clerk working in the land-mortgage bank, Sunduria, and volunteered to save the situation by

procuring a loan of Rs. 150/- from the said bank for P. W 1, provided he was remunerated with a sum of Rs. 25/- for his services. Being induced

by the representation and promise of the accused. P. W. 1 who had no money with him approached P. W. 6, a Miitri in the tile-factory where P.

W. 1 was working as a mere labourer, for a loan of Rs 25. P. W. 8 advanced a sum of Rs. 25/- to P. W. 1 towards his wages and then P. W. 1

paid this amount to the accused for his promised help to secure the loan from the land-mortgage-bank. P. W. 1 waited for sometime for the said

loan and was ultimately disappointed. In the meantime, he gathered that the accused had similarly cheated several other persons. Thereafter P. W.

1 approached the accused on 21-6-63 for refund of the amount of Rs. 25/-taken by him, but the accused denied the deal. Then P. W. 1 lodged F.

I. R. (Ext. 1) at the police station and after investigation, the police"" charge-sheeted the accused who underwent trial for offence under Sections

419 and 420, I. P. C.

The defence of the accused was a complete denial. He also filed a written statement to that effect. His further plea was that one Bharat Dalai the

Sar-panch who was inimically disposed towards him, had used P. W. 1 as his stooge and had foisted this false case against him.

The learned Magistrate believed the story of P. W. 1 and the other witnesses examined by the prosecution, viz. Pws. 2, 4, 5 and 6. He also

relied upon Ext 2, a petition filed by the accused and came to the conclusion that the prosecution story had been amply proved in the case. He held

the accused guilt u/s 420 I. P. C and sentenced him to R. I. for two months and to pay a fine of Rs. 100/- in default to undergo R. I. for 15 days.

He, however, acquitted the accused of the offence u/s 419 as there was no evidence to show that the accused personated himself to be a clerk of

the Land-Mortgage Bank. Sunduria.

The learned Sessions Judge, on appeal, relying on the proved facts that the accused had taken a sum of Rs. 25/-from P. W. 1 promising to

procure a loan for him, held that the accused had the dishonest intention at the time he took the money from P W 1. He accordingly maintained the

conviction and sentence of the accused u/s 420. I.P.C.

With regard to the acquittal of the accused of the offence u/s 419 I. P. C., by the Magistrate, the learned Sessions Judge made the following

fomment:

I must observe that the Magistrate has disposed of the charge u/s 419, IPC.. in a perfunctory manner Althogh he has believed the evidence if P

Ws. 1 and 2, and both of them have stated that the accused gave P. W. 1 to understand that he was a clerk of the Bank and as such he was in a

position to procure a loan of Rs. 150/- from the Bank, yet without discussing their evidence in this respect, the learned Magistrate has disposed of

the question by simply observing that there is no evidence to show that the accused personated as a clerk of the Land Mortgage Bank.

As there was no appeal against this part of the judgment the learned Sessions Judge rightly refrained from interfering with the same. Further, he

also did not assess the evidence of P.Ws. 1 and 2 on the point of impersonation though that evidence had a vital bearing on the question of

dishonest intention.

The findings of fact have not been assailed in this Revision, and rightly so. The only point urged is that even if it be accepted as a fact that the

accused took Rs. 25 from P. W. 1 promising to procure a loan for him, his subsequent repudiation of the entire transaction will not, ipso facto,

lead to the conclusion of dishonest intention. Relying on Amritlal Vs. Bajranglal Agarwalla, , it was urged on behalf of the petitioner that the

prosecution must prove the existence of dishonest intention beyond reasonable doubt, and the mere difficulty in proving such intention can be no

excuse in criminal trials, that being the essential ingredient of the offence. The casein 169 Ind Cas 1006 Harnam Singh v. Emperor, was cited for

the proposition that criminal intent at the time of the alleged bargain must be established for conviction u/s 420, and that the mere fact of denial of

the transaction does not establish the existence of the criminal intent from the beginning. The learned counsel for the petitioner also cited

Banchamani Saha Vs. Kshir Babu Sinha, : Rai Singh and Another Vs. The State and Another, in some of which it has been held that subsequent

denial of a transaction is not, by itself, evidence of necessary criminal intent.

Here though the subsequent bare denial of the transaction by the accused may not lead to the inference of dishonest intention on his part at the time

of the bargain, it is permissible to utilise that denial in conjunction with the other circumstances in the case and the cumulative assessment of all the

facts in this case, leads to the conclusion that the accused had entertained a dishonest intention so as to make him liable u/s 420, I.P.C. Those

circumstances against the accused proved and accepted by the courts below are that the accused made a representation to P. W. 1 that he would

procure a loan of Rs. 150 for him and for rendering such service he would require a remuneration of Rs. 25, and that P. W. 1 parted with the same

sum of Rs 25 which was accepted by the accused. P W 1 subsequently demanded refund of this amount (this fact has been admitted by the

accused in his written statement) when the accused denied the entire transaction; and this has been found to be false by the courts below.

These circumstances, coupled with the evidence of P. Ws. 1 and 2 to the effect that the accused represented to P. W. 1 that he was a clerk in the

land-mortgage bank --which in fact he was not -- implies a dishonest intention on the part of the accused to deceive P. W. 1. Therefore a mere

acquittal of the accused u/s 419, I.P C. cannot lead to the conclusion that the accused had not the dishonest intention. I have already indicated that

the trial court completely missed that part of the evidence of P. Ws. 1 and 2 where they spoke to the impersonation made by the accused and the

acquittal was based on a misreading of the evidence and not on the rejection of the same after assessment. In spite of the acquittal of the accused

u/s 419, the evidence of P. Ws. 1 and 2 with regard to impersonation would still be admissible for consideration while dealing with the charge u/s

420, I.P.C.

It has been held by the Supreme Court in the case reported in Sekendar Sheikh and Another Vs. State of West Bengal, , that an item of

evidence may corroborate charges for more offences than one, but acquittal of the accused of one such offence will not render that item of

evidence inadmissible in assessing the criminality of the accused for another offence corroborated thereby. The question in such cases is not one of

admisibility but the weight to be given to the evidence. On the basis of this decision, therefore, the evidence of P. Ws. 1 and 2 that the accused

represented to P. W. 1 that he was a clerk in the aforesaid bank and that he could arrange a loan for P. W. 1, though he was not really so, is still

available for judging the criminality of the accused u/s 420. In the instant case, such evidence is not only admissible, but full weight has to be given

to it inasmuch as no part of that evidence has been discarded or disbelieved by either of the courts below The Magistrate had good reasons to say

that there was no evidence of cheating by personation so as to warrant a conviction u/s 419, I.P.C. even though the evidence of P Ws. 1 and 2 be

accepted in full, which he factually did.

Section 416 I.P.C. defines ''cheating by ''personation'' and the offence is committed by pretending to be some other person, either living or

imaginary. The accused, in this case did not pretend to be some one other than he himself, but he merely misrepresented as to his status, position

or rank. Without deciding whether such misrepresentation as to official status falls within the mischief of Section 416. It appears that the Magistrate

thinking that cheating by personation would cover only cases of personation of a particular person, said that there was no such evidence. His

acquittal u/s 419 I.P.C. does not, therefore, amount to doubting the veracity of P. Ws. 1 and 2. Thus, when this evidence is considered along with

the other circumstances of the case, as stated above, coupled with the false denial of the transaction by the accused, there is no escape from the

conclusion that the accused had the dishonest intention at the time when he induced P W. 1 to part with Rs. 25 on the false pretext that he was a

clerk of the aforesaid bank from where he could arrange a loan of Rs 150. In the result the petitioner has been rightly convicted u/s 420 I.P.C.

Learned counsel for the petitioner, how ever, states that the accused has already undergone a part of the substantive sentence and that he had had

sufficient harassment since the prosecution was launched. While, therefore maintaining the conviction of the petitioner u/s 420, I.P.C., I would

reduce his substantive sentence to the period already undergone, and maintain the sentence of fine; and with this modification in the sentence, the

revision is dismissed.