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TMI Blog2006 (3) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... nd sentence passed by the learned Judicial Magistrate, 3rd Court. Barrackpore in C. Case No. 799/96 under Section 420 IPC on 29.11.2003. 2. The circumstances leading to the above application are that the present O.P. No. 1 lodged a complaint under Section 156(3) Cr.PC alleging inter alia that the petitioner claiming himself to be the owner of a property at Sastri Road, P.S. Naihati executed a registered sale deed on 02.02.87 in favour of O.P. No. 1 at a consideration of Rs. 10,000/-. Later it was detected that the petitioner was not owner of the said property as his father executed a Will without giving any property to him but to his wife Smt. Shila Bhattacharjee and a Probate Suit is pending. So, the petitioner and his wife Shila Bhattacha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house with his wife who is one of the petitioners in the Probate Suit, he was well aware of the execution of the Will by his father in 1974, is based on surmise and conjecture which cannot be the basis for any conviction, and (3) as the learned Court of appeal did not scan the evidence nor applied its mind, the impugned Judgment and order is liable to be set aside, in support of which the cases of Badam Singh v. State of Madhya Pradesh reported in 2004CriLJ22 , Rairiav. State of Rajasthan reported in 2002 SCC 829 and L.L. Kale v. State of Maharashtra reported in 2000 (1) Crimes 49 were relied upon. 5. Mr. Kundu. learned Counsel for O.P. No. 1, on the other hand, fully supported the findings of the learned Court of appeal below and contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the accused contrary to the law of evidence, or to prevent a gross and palpable failure of justice, or where the finding of fact depends on a correct interpretation of law, or where the lower Courts have approached the case from a wrong point of view and the evidence produced has not received due consideration, or where the findings of fact are not based on evidence on record and are proved to be wrong from the record itself etc. Appellate Court's concurrence with a patently wrong finding of guilt does not render it immune from interference, if acceptance of such a finding by the revisional Court also would result in miscarriage of justice. 7. Section 415 IPC has two parts. While in the first part, the person must dishonestly or fraud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st intention must have to be shown right at the beginning of the transaction. Here, it transpires from the evidence of P.W. 1 that the agreement for sale was executed about 1 years back (on 24.09.85) from the date of registration of the sale deed. A concealment of fact cannot be said to be dishonest unless the accused was under an obligation to disclose the facts concealed. There is no obligation on the seller to disclose any defect unless it is a defect which the buyer could not with ordinary care discover. The doctrine is known as caveat emptor i.e. Let the buyer beware . In this case as deposed by P.W. 1, he had sufficient scope to enquire about the nature, character etc. of the land but he did not make any search as regards the land. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the legal heirs and representatives, he sought to transfer his share in the property having no knowledge of the said Will, and had he any such knowledge of the Will, at best his wife Shila Bhattacharjee would have joined in the deed to avoid any complication, and had O.P. No. 1 in pursuance of the said doctrine of caveat emptor made necessary search in possible places including municipality which he had enough opportunity to do within the period of more than one year and four months before execution of the sale deed on 02.02.87 and which he practically did but long after execution of the sale deed, he could easily avoid the transaction if so needed, but it is no ground for implicating his client with the offence of cheating, and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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