ORDER
J.N. Datta, J.C.
1. This is a revision petition under Section 439 of the Cr. P. Code, filed by Smt, Ban-chamani Saha, an illiterate widow, aged 50 or more of village Routkhola, within the jurisdiction of Bishalgarh Police station, who was convicted under Section 420, I. P. C., and sentenced to undergo R. I. tor a term of two months, and to pay a fine of Rs. 100/- or in default to suffer further R. I. for one month. Her appeal to the Sessions Court also failed.
2. The case was started on a complaint filed by Kshir Babu Sinha of village Kalkalai which is about 3 miles away from the village of the Petitioner. In 1954, the complainant sold to the Petitioner 2 kanis out of his four kanis of land in a jote, for Rs. 500/-, by a sale deed and there was an agreement, which was also reduced to writing, on the same day, that if within 5 years, the complainant repaid the amount of price, then the Petitioner would reconvey the land to the complainant.
Possession was given to the Petitioner, and it appears, that during the first year, she got the land cultivated through others. Thereafter in the subsequent two years, the complainant cultivated the land on Borga from the Petitioner, and as the prosecution evidence itself goes to show, there was some dispute between the parties over the payment of the share of crops for the Borga, to the Petitioner. Her contention has been that the complainant did not pay her on that account, as alleged by him.
3. It further appears that, the complainant agreed to sell this very land to Rajeshwar Ghosh (P. W. 4) for Rs. 500/-. before the expiry of the five years, and Order 9-4-56, the parties, Rajeshwar Ghosh and Rajani Kanta Saha, the son-in-law of the Petitioner, came to Agartala, for the purpose, and a Sale-deed (Ext. P-1) was got scribed, but the Petitioner refused to execute it, until the Borga shars of crop due to her from the complainant was also paid.
4. The prosecution case was that the Petitioner had agreed to execute the Sale deed on payment of Rs. 500/- the price of the land, and after the Sale-deed was scribed, she was paid Section 500/-for the consideration, but after receiving that sum, she refused to execute the Sale-deed, and did not also return the amount paid to her, & as already stated as having come out in the prosecution evidence itself, this refusal was because she demanded payment on account of the Borga due to her also. The complainant who had taken the amount from Rajeshwar Ghosh (P. W. 4) had then to execute a Sale-deed in his favour, in respect of his other 2 kanis of land out of this jote, the same day, and it was also got registered.
5. The defence was that she did not receive the amount of consideration, and she was not bound to execute the deed of reconveyance, until the Borga dues were also paid to her.
6. The evidence recorded was very skimpy and scrappy, so much so, that it is not even clear what happened after the transaction fell through, whether the Petitioner left the place, or any attempt was made to detain her and make her return the amount. There was no evidence to show that there was an agreement between the parties before they came to Agartala, that (he Petitioner will on receipt of Rs. 500/- execute the Sale-deed, or that the amount was paid to her on her giving an assurance to that effect.
Therefore the possibility of an attempt on the part of complainant and Rajeshwar Ghosh (P. W. 4) to take the reconveyance by paying Rs. 500/- only, even though the Petitioner was not willing to do so without also being paid the Borga dues, from the very beginning cannot be excluded. The sale in favour of the Petitioner took place in March 1954, and only two years had passed after it. The sale in favour of P. W. 4 was also to be for the same amount.
No reason has been assigned why therefore the complainant was anxious to buy back the land and convey it to P. W. 4, when there appeared to be no obvious advantage in that course. There is nothing also to show that it was the Petitioner who wanted this, and normally a purchaser of this kind does not want that the vendor should rebuy or at any rate rebuy so early. It has therefore to be presumed that it was the Petitioner who was more interested in the matter. The complainant also examined two witnesses to prove that he had paid up the Borga dues but had to admit that he did not take a receipt for it.
The evidence of these two witnesses cannot bear any close scrutiny, and was not worthy of the name. It is also not difficult to procure such witnesses. The statement of the Petitioner that there were dues on account of Borga outstanding front the complainant can therefore be safely accepted, and therefore the conclusion is inevitable, that in the circumstances present, she must have made it plain from the very beginning. That view also finds support from the absence of any evidence to show that the Petitioner accompanied the complainant to Agartala, holding out a promise that on receipt of Rs. 500/- only she will execute the deed of reconveyance.
7. There is also nothing to show that any such inducement came from her side when she was paid the amount and asked to execute the Sale-deed, even if it is accepted for the sake of argument, that, that amount was paid to her. The prosecution evidence itself discloses, that she was made to sit inside the room tor women in the hotel in. the Court compound, and after the Sale-deed was scribed, and even attested by the attesting witnesses, it was taken to that room, she was paid Rs. 500/- and asked to execute it, whereupon she refused to comply till the Borga dues were also paid.
8. The learned Magistrate took the view that the question of Borga was a separate question, and should have been fought out in the proper Court, and the Petitioner was guilty of cheating, because she refused to execute the Sale-deed even after receiving the consideration money. In the view of the learned Sessions Judge the Petitioner was legally bound to execute the deed, when the amount of Rs. 500/- was paid to her, but she failed to perform her part of the contract. I cannot agree, because every breach of a contract does not necessarily import the ingredients necessary for a conviction for the offence of cheating.
9. To sustain a conviction under Section 420 I.P.C. it must be established beyond reasonable doubt, that the accused practised deception and thereby dishonestly induced the person so deceived to deliver property. Subsequent denial of a transaction or refusal to return the money does not show that there was the necessary criminal intent from the beginning see Harnam Singh v. Emperor, 33 Cri LJ 845 (Lah). Mere breach of a contract cannot give rise to a criminal prosecution.
The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time of the alleged inducement which may be judged by his subsequent act, but of which the subsequent act is not the sole criterion. Where there is no clear and conclusive evidence of the criminal intention of the accused at the time the offence is said to have been committed and where the party said to be aggrieved has an alternative remedy in a Civil Court, the matter should not be allowed to be fought in a Criminal Court see Sheosagar Pandey v. Emperor 37 Cr. LJ 38 (Pat), and in my opinion the present case appears to be of that type.
There is nothing to show that any inducement proceeded from the petitioner, nor are the circumstances such, that it can be reasonably inferred from them, rather everything goes to show, that if any money was paid, it was forced on her in an attempt to take a Sale-deed from her, without having to meet her demand for the Borga dues. There is thus considerable force in the argument advanced by the learned Counsel for the Petitioner, that the necessary ingredients of cheating are wanting in this case, even if it be accepted that the payment was made.
10. Coming now to the question of payment of Rs. 500/-, ordinarily this Court does not go into such questions of fact in a proceeding of this nature, unless the interests of justice require it. In the present case the evidence on that point was far from satisfactory, and there are circumstances present, which make it extremely improbable that such a payment was made
11. Besides the evidence of complainant (P.W. 1) and the other purchaser Rajeshwar Ghosh (P.W. 4) the only evidence on the point consists of three deed writers, two of whom were the scribes of the two deeds in question. Their evidence goes to show that the deed to be executed by the Petitioner was scribed by Kali Kanta (P.W. 3) outside the room, in the verandah. It was then attested by Ganga Charan (P.W. 2) the scribe of the deed in favour of P.W. 4, and another deed writer (P.W. 7).
The signature of the son-in-law of the Petitioner as an attesting witness was also taken, and then the deed was taken inside, to the Petitioner. It came out however in the evidence of Ganga Charan (P.W. 2) that the attestation by witnesses was done after the payment, which inclines one to think, alter the Petitioner had refused to execute it. In any case it was not permissible to do so, and the two attesting witnesses, who are deed-writers must have known that. Their lending themselves to such a course cannot but be treated as showing an interestedness towards the complainant.
12. The son-in-law was not examined by any side, and he was also made an accused in the complaint, but the Magistrate did not register any case against him, after examining the complainant, obviously because nothing was stated which would involve him in the offence. It is therefore clear that if examined, he would have not supported the payment, and the suspicion that it was with the object of getting over this difficulty that he was made a co-accused, cannot be easily brushed aside. Taking of this signature of the son-in-law, by the said manipulation of the other two deed-writers having attested before execution, also gives rise to a reasonable suspicion that there was most probably something fishy about the whole dealing.
13. It is said that the money was paid by P.W. 4 to the complainant at the time the deed was presented to the Petitioner for execution, and he paid it to the Petitioner. The deed of this witness was also ready before that, that is it was in respect of the land covered by the Sale-deed of the complainant, and P. W. 7’s evidence shows that when the matter fell through the second sheet of the deed of P. W. 4 was changed and written afresh about the other land, the replaced sheet being handed over to the complainant.
But it was not filed. It is reasonable to expect that P. W. 4 will not part with the money without a receipt or at least having such a Sale-deed got ready. But admittedly no such receipt passed, and no reason has been assigned for not filing the replaced sheet, though it would have been natural to file it. if such a paper existed. If it is then taken, that such a deed was not written, then it is very difficult to believe that P. W. 4 advanced the amount, and it is not the case of the complainant that he possessed that amount.
14. It is also no less surprising, that why other independent witnesses were not examined, because what happened, happened inside a Hotel and others must have been attracted when the dispute arose. They could thus easily furnish evidence in support of the prosecution. It is therefore difficult to believe that the Petitioner an old illiterate woman from the interior, was allowed to walk away with the money, without any effort being made to take back the money from her, when there were so many persons on the side of the complainant to advice him.
One expects that a report would have been made then and there to the Police, but complainant admits that he did not follow this course and did not mention it to any one else. What is more, the complaint was got written and filed after the lapse of two days, that is Order 11-4-56, when it was possible to do so, then and there. It must have been clear to all, that if the Police were informed at once, they might take action and catch the Petitioner red-handed with the money.
All this inclines one strongly, to the view that the whole thing was most probably an after-thought, when the Petitioner expressed her unwillingness to accept anything less than the amount of price plus the Jiorga dues, and, thereby frustrated their scheme to convey that very land to P. W. 4. The conduct of the complainant and those who support him, being unnatural, thus makes the whole story of the prosecution very doubtful, and the mere fact that the Petitioner came all the way to Agartala for the purpose cannot in the circumstances be taken to mean that she had a dishonest intention. Her conduct is not inconsistent with the hypothesis, that she was willing to execute the deed on payment of the price and the other dues, but that was not done, and the whole thing fell through. It cannot therefore be said or found without reasonable doubt, that she was paid Rs. 500/- and she left with it. As already stated in such circumstances, she cannot be convicted of an offence under Section 420 I. P. C.
15. The result is that this revision petition must be accepted. The conviction and sentence passed on the Petitioner are set aside, and she is acquitted of the offence with which she was charged, and of which she was convicted. Fine, if paid shall be forthwith refunded to her.
