Ramsanehi and Another vs Shri Krishna Sahu and Another

Hon''ble Shri T.P. Sharma, J.—By this revision, the applicants have challenged legality and propriety of the judgment dated 13-1-1999 passed by the Additional Sessions Judge, Khairagarh, Link Court: Kawardha, in Criminal Appeal No. 87/95, modifying the judgment of conviction and order of sentence dated 11-7-95 passed by the Additional Chief Judicial Magistrate, Kawardha in Criminal Complaint Case No. 392/94, whereby and whereunder the trial Court after holding the applicants guilty for commission of the offence of cheating, convicted the applicants u/s 420 of the IPC and sentenced each of them to undergo RI for three months & pay fine of Rs. 5,000/-, in default additional SI for six months. While modifying the judgment of conviction and order of sentence, the appellate Court has reduced the sentence of fine imposed upon the applicants from Rs. 5,000/- each to Rs. 2,000/- each, in default additional SI for three months. During the course of hearing of appeal, non-applicant No. 1/complainant Patiram died and his son Shri Krishna Sahu has been impleaded as legal representative of Patiram in the present criminal revision.

As per case of the complainant, applicant No. I Ramsanehi was posted as Patwari and applicant No. 2 Jhumuklal was Sarpanch of Gram Panchayat: Gandai, Police Station Bodla. Both the applicants directed Kotwar Firanta Das to proclaim any village for allotment of residential plots to them by applicant No. 1 Ramsanehi. Villagers approached, then Ramsanehi directed the villagers to deposit Rs. 25/- each before him and under bona fide belief, they deposited Rs. 25/- for each plot before applicant No. 1 Ramsanehi and also paid Rs. 1507-each before applicant No. 2 Jhumuk Lal for allotment of plots, but the applicants failed to provide residential plots. Villagers met Dr. Shrawan Kumar Verma (PW-6), a member of 20 point programme, who informed them that the Patwari & the Sarpanch are not empowered to allot residential plots, then they reported the matter to the police. Finally, complainant Patiram filed complaint. After preliminary enquiry, vide order dated 29-1-85, the Judicial Magistrate First Class, Kawardha has taken cognizance of the offence punishable u/s 420 of the IPC (at that time Section 161 read with Section 34 of the IPC was applicable). After recording evidence before charge, charge u/s 420 of the IPC has been framed against the applicants vide order dated 6-2-95 and finally, the Additional Chief Judicial Magistrate convicted and sentenced the applicants in the manner mentioned above.

In order to prove the guilt of the applicants, the prosecution has examined as many as seven witnesses. The accused were examined u/s 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. The applicants have examined defence witness No. 1 Bihari who has deposed that the complainant and other witnesses have encroached upon the land and when the applicants initiated and proposed action against them, they have falsely implicated the applicants.

I have heard learned Counsel for the parties, perused the judgments impugned and records of both the Courts below.

Learned Counsel for the applicants vehemently submitted that as per allegations made in the complaint, the applicants have committed the offence punishable u/s 161 read with Section 34 of the IPC by demanding and accepting illegal gratification as public servants, but the provisions of Sections 161 to 165 of the IPC have been repealed by Act 49 of 1988 with effect from 9-9-1988 before framing of charge, in the present case. As per case of the prosecution, substantially, the applicants have demanded and accepted illegal gratification other than the legal remuneration as public servants, but they have not committed cheating and in his evidence, alleged complainant Patiram has never deposed that the applicants have induced them that they are competent to allot residential plot and that by inducing them, the applicants have succeeded in obtaining money. In absence of aforesaid evidence, conviction of the applicants u/s 420 of the IPC is not sustainable under the law. Learned Counsel further submitted that evidences of aforesaid witnesses are self-contradictory and there is material omission and contradiction in their statements. In absence of any corroboration from independent source and the fact that the complainant was having grudge against the applicants on account of encroachment of land, both the Courts ought not to have convicted the applicants u/s 420 of the IPC on the basis of insufficient evidence.

On the other hand, learned State counsel opposed the revision and submitted that both the Courts below have rightly convicted and sentenced the applicants as aforementioned.

As per initial case of the complainant, the applicants have committed cheating and have also demanded and accepted illegal gratification other than the legal remuneration as public servants, but charge u/s 161 read with Section 34 of the IPC applicable on the date of filing complaint has not been framed against the applicants in the year 1995. Even otherwise, aforesaid provisions have been repealed by Act 49 of 1988 with effect from 9-9-1988.

As regards the question of cheating, as per evidence of complainant Patiram (PW-1), applicant No. 1 Ramsanehi had directed the Kotwar for proclamation that any person interested for allotment of residential plot may contact him and as a result of such proclamation, the complainant and other persons met applicant No. 1 who demanded Rs. 25/- per head for him and Rs. 150/- per head for applicant No. 2. Most of the villagers paid money to the applicants. However, the applicants have failed to provide plots to the villagers. In his detailed cross-examination, at one place, the complainant has deposed that he has paid the amount on same day and at another place, he has deposed that he has paid the amount on next day. Banshi (PW-2) and other alleged effected persons namely Gopi (PW-3), Nihali (PW-4) and Dauva (PW-5) have deposed same thing. As per their evidence, substantially, these two persons, the applicants herein, who were public servants in terms of Section 21 of the IPC, have demanded and accepted money from other persons for providing residential plot/allotment of residential plot. Evidences of these witnesses clearly reveal that they have demanded and accepted Rs. 25/- per head for applicant No. 1 and Rs. 150/- per head for applicant No. 2 which also find support from para 7 of the complaint filed by deceased Patiram. Para 7 of the complaint reads thus,

Patiram and other villagers have also filed complaint before the Commissioner (Vigilance) vide Ex. P-1 stating same thing. Para 2 of the complaint filed before the Commissioner (Vigilance) reads thus,

Oral evidence corroborated by the allegations made in the complaint, the allegations made in the written complaint Ex. P-1 and other documents further reveal that applicant No. 1 has demanded Rs. 25/- per head for him and Rs. 150/- per head for applicant No. 2. This is not the case that the applicants were owners of the plot and they have sold plots to the villagers after receiving Rs. 25/- Rs. 150/- from each person. However, as per case of the complainant, it was residential plot i.e. abadi land/Government land, not owned by these applicants and it was not possible for them to allot the said plot to any person, in case of some fees/premium or charges required for such allotment unless same has been paid to the Government. The applicants have neither demanded nor accepted Rs. 25/- per head/Rs. 150/- per head from the villagers as premium charges, land revenue or other dues legally payable to the Government or even for the Government. They themselves have demanded and accepted money for themselves and not for the Government. A common man or villagers may be in a position to understand the things easily that the property owned by the Government may be given on allotment to a person either without any charges/taxes/land revenue/premium or after payment of aforesaid legally payable tax. Plots owned by private persons may be sold or given to any person after payment of some amount or consideration.

Evidences and allegations made in the complaint are unambiguous and very specific that the applicants have demanded money for them, and not for the Government. The complainant and other villagers have paid money to the applicants for them, and not for the Government. These facts alone are sufficient to prove the fact that the applicants have demanded and accepted illegal gratification other than the legal remuneration as public servants, but they have neither demanded nor accepted any money for or on behalf of the Government for allotment of plot. If aforesaid facts are considered as true in their face value, same may be sufficient for drawing inference that the applicants have committed the offence punishable u/s 161 of the IPC applicable on the date of filing of the complaint. However, the applicants have neither induced nor cheated the complainant that they are authorised by the State to receive money for themselves and allot residential plots to the villagers and that they are demanding and receiving money for the State for providing plots.

In absence of the very essential ingredient of the offence punishable u/s 420 of the IPC i.e. cheating, conviction of the applicants u/s 420 of the IPC is not sustainable under the law. While convicting and sentencing the applicants by the trial Court and affirming such conviction by the appellate Court, both the Courts below have failed to differentiate the ingredients of the offence punishable under Sections 161 and 420 of the IPC, and thereby committed illegality. Conviction and sentences of the applicants u/s 420 of the IPC are not sustainable under the law. For the foregoing reasons, the revision deserves to be allowed and is hereby allowed. Conviction & sentences imposed upon the applicants u/s 420 of the IPC are set aside and the applicants are acquitted of the said charge. They be set at liberty at once.