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TMI Blog2021 (7) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... of the agreements [Exbt.1 2] and his signatures thereon. Petitioners did not also deny that Subhash Debbarma (one of the petitioners) received the said sum of money from PW-1 assuring him that he would arrange a government job for his brother. The learned trial court has rightly held that the facts of the case do not attract the provisions of Section 138 NI Act because in bringing the charge under NI Act the procedures prescribed thereunder have to be followed. In order to constitute an offence under Section 420 IPC, it has to be essentially proved that the accused has committed cheating within the meaning of Section 415 IPC and by such cheating has dishonestly induced the persons so cheated to deliver any property to the accused or to any person, or to make alter or destroy the whole or any part of the valuable security or anything which is signed or sealed, and which is capable of being converted into a valuable security - Clearly in this case the allegations which have been brought against the petitioners are that with a fraudulent intention they allured PW-1 with a government job for his brother and dishonestly induced him to pay 1,10,000/- to them and thereby committed the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... broom police station on 14.09.2014 alleging, inter alia, that in the year 2011 he came to know accused petitioner Aswini Debbarma when said Aswini Debbarma was posted as a teacher in Baishnabpur Mogpara High School at Sabroom where the informant had a bakery. Said Aswini Debbarma used to live in the house of Tapan Bhowmik on rent and at that time he used to visit the bakery of the informant frequently. In that connection they had developed a good relationship. In the course of a parlance with the informant, accused petitioner Aswini Debbarma came to know from the informant that he had several brothers one of whom had done post graduation who was unemployed. Said Aswini Debbarma then told the informant that he had a friend in Raj Bhavan at Agartala who managed government job for many unemployed persons in exchange of money and he told the informant that if the informant was willing to spend money he could also manage a government job for his brother. After a few days, said Aswini Debbarma brought accused petitioner Subhash Debbarma to the informant and introduced said Subhash Debbarma to the informant as a government employee of the GA(SA) department, Government of Tripura who was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alleged agreement between Subhash Debbarma and informant Balaram Saha was executed on a non judicial stamp paper. He seized the said agreement by drawing up a seizure list signed by the parties [Exbt.4]. The Investigating Officer also enquired about the cheques allegedly drawn by Subhash Debbarma and seized the photocopies of those cheques bearing No. 323660 and 323661 from the possession of the informant. Informant did not handover the original cheques to the police officer. He stated that he would produce the same before the court. The photocopies of the said cheques were then seized by the Investigating Officer by a seizure list [Exbt.9]. During his investigation, the Investigating Officer produced the cheques before the Branch Manager of the Sabroom branch of SBI to verify whether the cheques were issued by said Subhash Debbarma and whether account No.10915092014 against which the cheques were issued belonged to said Subhash Debbarma. The Investigating Officer was informed that the said account belonged to petitioner Subhash Debbarma and the account was opened at the New Secretariat branch of SBI, Agartala. Thereafter, Branch Manager, SBI, New Secretariat branch confirmed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishable section 406 read with section 34. Thirdly, That of you Sri Ashwini Debbarma being a Public servant on the same date time and place abetted/instigated/engaged with/intentionally aided Subhas Debbarma in dishonestly inducing delivery of ₹ 90,000/- and ₹ 20,000/-that is a total of ₹ 1,10,000/- from the informant to him and in converting the same Balaram Saha and criminal breach of trust and that you at Sabroom on the said date abetted and instigated to deliver ₹ 90000/- and ₹ 20000/- to the accused Subhas Debbarma in dishonestly misappropriating or converting the same to his own use in violation of the direction of the legal contract express or implied which the informant have made touching the discharge of such trust that you have thereby committed an offence u/s 109 of the IPC. Fourthly, That you Sri Subhas Debbarma being a Public servant, on 19.07.14 and 09.08.14 issued two nos. cheques vide no. 323660 and 323661 amounting to ₹ 55,000/- each amounting in total ₹ 1,10,000/- drawn on State Bank of India Agartala Branch in favour of the informant Sri Balaram Saha from your State Bank of India A/C no. 10915092014 which were dishono ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 24 IPC, it mandates that, whoever does anything with intention to cause wrongful gain to one person or wrongful loss to another person is said to have done that thing dishonestly. Wrongful loss and wrongful gain as per legislative mandates in section 23 IPC is that, any loss by unlawful means of property to which the person loosing is legally entitled and wrongful gain is that gain by unlawful means to which the person gaining is not legally entitled. The term fraudulently has been defined in section 25 that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. 17. In the case at hand, convict-appellants Subhash Debbarma and Aswini Debbarma had a clear intention to defraud PW-1, Balaram Saha knowing fully well that Subhash had no authority to give Govt. job and that to in lieu of money which is against public policy and legally prohibited. Meaning thereby, there is no escape from the fact that the present appellant Subhash Debbarma entered into two illegal agreements vide Exbt.1 & 2 with Balaram Saha and took ₹ 1,10,000/- in total on his false assurance of giving a Govt. job to the younger brother of PW-1 and subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the informant. The cheques were dishonoured by bank because those were not presented to the bank in time. From such conduct of the petitioners, the courts below should have presumed that petitioners had no intention to deceive the informant [PW-1]. (iii). In the given facts and circumstances, the trial court ought to have given the benefit of Probation of Offenders Act or Section 360, Cr.P.C to the petitioners. [13] In the course of his arguments Mr. S. Das, learned counsel appearing for the petitioners contended that the courts below did not also consider the discrepancies appearing in the prosecution evidence and therefore findings returned by the courts below are erroneous and liable to be set aside. [14] Mr. S. Ghosh, learned Addl. P.P. appearing for the State respondent on the other hand has argued that the courts below by their detailed judgments have held the petitioners guilty of the offence of cheating. It is contended by Mr. Ghosh, learned Addl. P.P that the petitioners have been charged with serious offence for which they have been appropriately punished by the courts below and they failed to make out any ground for interfering with the concurrent findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. Execution of the said agreements [Exbt.1 & 2] between Subhash Debbarma and the PW was not also denied by the petitioners. The PW was made to say in the cross examination that the cheques were drawn on the Agartala branch of SBI whereas he deposited the same for encashment at the Sabroom branch of SBI. Relevant extract of his cross examination is as under: "The cheques were issued by the accused Subhash Debbarma on his account at Agartala Branch. I have deposited the cheques to SBI, Sabroom branch. I have not instituted any money suit in connection with this incident. The agreements were made with the understanding between both sides. It is true that when the cheques were dishonoured at that time it crossed my mind that the accused persons had cheated me." [17] Sri Babul Saha [PW-2], brother of the complainant for whose employment the informant paid money to the petitioners had stated that in his presence his brother paid ₹ 90,000/- in cash to the petitioners in his bakery on 30.09.2011 and on a subsequent date on 20.05.2012 his brother [PW-1] paid another sum of ₹ 20,000/- to the petitioners for this purpose. On both occasions agreement on stamp papers [Exbt.1 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [21] Sri Swapan Sutradhar [PW-6] who was the Deputy Manager of State Bank of India, New Secretariat Branch, Agartala confirmed that the two impugned cheques [Exbt.10 & 11] vide Nos. 323660 and 323661 respectively were drawn by accused petitioner Subhash Debbarma and SB account No. 10915092014 against which those cheques were drawn belonged to accused petitioner Subhash Debbarma who was a peon in the GA(SA) Department of the Government of Tripura as per record maintained in the bank. In cross examination the PW stated that on the day on which he received requisition from the Investigating Officer for furnishing the information with regard to the authenticity of the impugned cheques, the bank account of accused Subhash Debbarma was active and in operation. [22] SI Sri Badal Malik [PW-7] was the Officer in Charge of Sabroom police station who received the FIR of PW-1 at the police station on 14.09.2014 and registered Sabroom PS case No. 61 of 2014 under Section 420 read with Section 34 IPC against the petitioners. He stated that after registration of the case he endorsed it for investigation to police Sub Inspector Khokan Saha [PW-8]. [23] SI Sri Khokan Saha [PW-8] stated that duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not. [26] On appreciation of evidence, the trial court by its detailed judgment dated 16.11.2016 held the petitioners guilty of offence punishable under section 420 read with section 34 IPC and convicted and sentenced them. In this regard the trial court held as under: "9……………….And taking into consideration the charge of dishonour of cheque, which is framed against them, this court finds that for brining charge under Negotiable Instrument Act ,there are certain procedure which has to be complied with and in this case such has not been complied with and in absence of such no charge under NI Act can be sustained. Accordingly this court in its consider opinion finds that the prosecution has failed to prove the point No. 2 and point No. 3 beyond reasonable shadow of doubt and as such it is decided in negative. In the result, this court in the light of the discussions made above, finds that the prosecution have become successful in proving that the accused persons, namely Aswini Debbarma and Subash Debbarma, in furtherance of their common intention have committed the offence of cheating by dishonesty inducing delivery of property to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch reads as under: "415. Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.-A dishonest concealment of facts is a deception within the meaning of this section. [32] Section 416 IPC defines cheating by personation. Section 417 IPC provides punishment for cheating. Section 418 IPC provides punishment for cheating with knowledge that wrongful loss may ensue to person whose interest the offender is bound to protect and Section 419 IPC provides punishment for cheating by personation. Section 420 IPC provides punishment for cheating and dishonestly inducing a person for delivery of property by such cheating. For the sake of convenience, Section 420 IPC is set out herein below: 420. Cheating and dishonestly inducing delivery of property.-Whoever ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that person (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body mind, reputation or property. 14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentation.........................." [37] In the given factual context, it can be safely held that the accused petitioners committed the offence of cheating by dishonestly inducing PW-1 to deliver a cash sum of ₹ 1,10,000/- for providing a government job to his brother. The receipt of the money is not denied by the petitioners. Rather they tried to establish that they had taken the money from PW-1 for processing his application for a government job and they also tried to refund the money when they failed to keep their promise by issuing cheque in favour of the complainant [PW-1] which was eventually dishonoured for the fault of the complainant. The facts and circumstances emerging from the record would make it clear that the accused petitioners made a promise to the complainant that they would procure a government job for his unemployed brother for which they had received cash sum of ₹ 1,10,000/- from him knowing it fully well that they were making a false promise to the complainant because a government job is not purchasable. Therefore, it is quite clear that both of them had a fraudulent intention while the promise was made by them. Conduct of the complainant is al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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