Udho Ram vs State

K.C. Agrawal, J.—This revision has been filed by Udho Ram, the applicant, challenging his conviction u/s 420 IPC. According to the prosecution case, the applicant''s daughter-in-law was related to the wife of Kalyan Rai. Kalyan Rai was the resident of village Kaunandan whereas the applicant was the resident of village Para-dauli which lies at a distance of seven or eight miles from Kaunandan. Kalyan Rai was issueless. According to the case of the prosecution, on 27th of July, 1972 when Kalyan Rai was not present in his house, Udho Ram, the applicant, went there and represented to Uma Devi wife of Kalyan Rai that he had brought a Mahatma with him who was capable of blessing her with riches and children and as his daughter-in-law had received the benefit of Mahatma''s blessing, she could also avail of his services. On the aforesaid representation being made by the applicant, Uma Devi arranged for Puja and invited Ballu Ram, Nanak Chand and Nan-hey Mal for the purposes of participating in it. As the Puja commenced, Udho Ram asked Uma Devi to bring her clothes and gold ornaments. On these articles being brought, he kept the ornaments locked and got them placed in the Puja. The key of the lock, however, was kept by the applicant with himself. After sometime he asked every one present in the puja to close his eyes and concentrate on the Mahatma. This was complied with. After sometime when people were asked to open their eyes, Uma Devi was told by Udho Ram that the box was not to be opened for about 24 hours. Uma Devi was also warned by Udho Ram that in case the box was opened within 24 hours, the husband of Uma Devi was likely to lose his eyes and would become blind. On that day Udho Ram and the Sadhu stayed at the house of Uma Devi and took their meals there. In the early morning, however, when Uma Devi woke up she found the applicant and the Sadhu missing from the house. This created suspicion in her mind and consequently she opened the box but found that the jewellery kept therein was missing. It was thereupon that Kalyan Rai who had gone to Bareilly was informed about the incident who thereafter came back to his village and lodged a first information report in the police station on 29th July, 1972. After investigation, a charge-sheet was submitted by the police u/s 420 of the Indian Penal Code.

The applicant pleaded not guilty and alleged that the delay in lodging the FIR was indicative of the concoction of case against him.

To establish its case, the prosecution examined Kalyan Rai, Ballu Singh, Nanak Chand and Uma Devi. The applicant, however, produced no defence in support of his claim of being not guilty. The Magistrate, having found that the prosecution had been able to bring home the guilt against the applicant beyond all reasonable doubt convicted him of the offence u/s 420 IPC and sentenced him to undergo two years'' R. I. Against the judgment of the Magistrate, the applicant preferred an appeal before the learned Sessions Judge. In the appeal, the findings given by the Magistrate were confirmed and it was found by the learned Sessions Judge that the evidence of Uma Devi supported by that of Ballu Singh fully established that the applicant was guilty of cheating and depriving Kalyan Rai of his valuable property. In this view of the matter, the appeal was dismissed and conviction and sentence of the applicant were confirmed. Aggrieved by the judgments of the two courts below, the present revision has been filed by Udho Ram in this Court.

Learned counsel appearing for the applicant could not urge that the findings of fact about the applicant having gone to the house of Kalyan Rai on 27th July, 1972 were incorrect or that the complainant was not deprived of the jewellery and ornaments on the aforesaid date by the applicant. In my opinion, it was rightly so done as the findings of the two courts are findings based on the appraisal of evidence and thus being findings of fact could not be assailed in the present revision. It is settled position in law that the High Court while deciding a criminal revi sion has a restricted power of consider ing whether the judgments rendered by the courts below are erroneous in law or not. It in fact, exercises the power of a supervisory nature and can not embark upon reappraisal of evi dence It was, however, urged by Sri Keshav Sahai, learned counsel appearing for the applicant, that offence of which the applicant might be found guilty was at the most that of Section 403 IPC and, therefore, his conviction u/s 420 IPC was bad in law. In order to appreciate the argument of the learned counsel for the applicant, it may be worthwhile to reproduce Sections 403, 415 and 420 of the Indian Penal Code.

Section 403 reads as under :

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Section 420 is as under :

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In order to prove the offence of cheating, it is necessary to establish :

(i) that some one was deceived ;

(ii) that it was done fraudulently or dishonestly or intentionally, and

(iii) that by means of such deceit that he was induced to change his position either by parting with the property or doing something to his own money.

It is further clear that in order to hold a person guilty of the offence of cheating, it has to be found that his intention was dishonest at the time of the alleged promise or inducement. So long as the criminal intention of the accused at the time of the alleged in ducement or promise is not established, the accused cannot be held guilty of an offence u/s 420 IPC. It is further necessary to establish that act ing on the representation and belief thereof, the complainant parted with his money while the accused knew it to be false and had dishonest intention at the outset. In a case of criminal mis appropriation, it would be seen that Section 403 IPC defines the criminal misappropriation as well as describes its punishment. There is, however, a subtle but a real distinction between the two offences. The distinction would turn upon the offence of fraudulent or dishonest inducement which is the essence of cheating. In a case where a person is induced for delivery of certain goods and the goods taken thereafter is converted by the accused to his own use or misappropriated, the offence would be regarded as cheating rather than misappropriation. In other words, it would be seen that while dishonset intention is the foundation or the essence of one crime, it is by no means of the other. It is possible that a person may honestly come into possession of a property, in which case his taking of the money from the other person would be honest thus excluding the applicability of Sec. 415 of the Indian Penal Code, but its subsequent retention or conversion may be dishonest. It would be thereupon that the offence of criminal misappropriation would be deemed to have been committed by such a person. As emphasised above, dishonest intention is necessary to be established at the time of the alleged promise or inducement in order to prove the offence of cheating whereas such dishonest inducement or promise is not required in the case of criminal misappropriation.

Applying the test laid down above, it has to be seen as to whether the applicant had committed the offence of criminal misappropriation or that of cheating. Before doing so, I want to make it clear that subsequent act and conduct of the accused may furnish materials for judging the intention of the accused at the time of the alleged promise or inducement, inasmuch as when the state of mind of a party with reference to a transaction is material, all facts and declarations from, which it may be inferred, whether previous or subsequent to the transaction are in general evidence either for or against him. As a matter of fact, intention which is a state of mind, cannot be proved as a fact ; it can only be inferred, from the other facts which are proved. Accordr ingly, in . the case of a offence of cheating, the subsequent conduct or circumstance play a prominent role in deciding whether the offence committed by a person is that of cheating or misappropriation. In the instant case, the story of the prosecution, as revealed above, and which has been found to have been proved by the two courts below leaves no room for doubt that the applicant visited the house of Kalyan Rai at the time when he knew that Kalyan Rai was absent. It was with the dishonest intention that he asked Uma Devi to bring all her ornaments and clothes and to keep it in the Puja. He concocted the story that she would be blessed with a child in case she brought her ornaments and kept there in the Puja. This was all done with the preconceived plan of depriving the complainant of his property. In my opinion, therefore, the courts below rightly found that only on account of the deception practised by the applicant on Uma Devi that she was induced to part with ornaments.

Sri Keshav Sahai, learned.counsel for the applicant, however, urged that making of the false representation by the applicant to Uma Devi that Ma-hatmaji could bless her with a child, even if was true, did not amount, to the commission of the offence by the applicant. It may be correct that,it is not frau lent to tell a lie nor is the mere telling of a lie punishable. In the ins-tan'' case, however, had the matter finished only at that, the applicant could not be held guilty of any offence. But thu "position here is different. He concocted the story of the Mahatmaji with the intention of cheating her. In feeder to induce her to bring her ornaments he made this false representation. It is not a case where subsequent to the bringing of ornaments that he changed. It was a case where the applicant went there with the dishonest intention and with that intention he induced her to part with her ornaments. Accordingly, in my opinion, the conviction of the applicant u/s 420 IPC is fully justified.

In the result, the revision fails and is dismissed. The applicant is on bail. He shall surrender to his bail bonds failing which he shall be taken into custody and sent to jail to serve out his remaining sentences. The bail bonds are cancelled.