State of Orissa vs Laba alias Naba Kishore Naik

Das, J.—This is an appeal by the State against an order of the Assistant Sessions Judge, Sambalpur, acquitting the Respondent of charges under Sections 420 and 468 of the Indian Penal Code.

The prosecution case may be briefly stated as follows:

The accused Naba Kishore Naik was a Process Server in the Nazarat of the Revenue Courts at Kuchinda. On 17-9-1959, he went to serve some processes on p.ws. 3, 4 and 5 of village Lepaikani in connection with some Mutation Proceedings. There he instead of realising Rs. 1.75 nP. towards the due process fee, induced p.ws. 3 and 4 by false representation, each to pay him Rs. 27/- and P.W. 5 to pay him Rs. 18-9-0 in excess. The accused is said to have realised these sums by way of penalty forging certain receipts for the said purpose, of cheating. This deception was detected by the lawyer of the parties (p.w. 1) and thereafter the matter was brought to the notice of the sub-divisional Magistrate by a petition, ext. I, which was later on treated as the F.T.R. (ext. I). After investigation the accused was charge-sheeted and committed to the Court of Sessions where he was acquitted of the aforesaid charges.

The accused, though admitted to have been the process server on the date of occurrence, denied to have received any money other than the due fees.

The prosecution, in order to prove its case examined a number of witnesses including P.W. 3 Lakshmn Kisan, P.W. 4 Kusa Kisan and P.W. 5) Tetla Kisan, the victims of the alleged dishonest inducement. Some other witnesses such as p.ws. 6 and 10 also proved the receipts of the excess amount by the accused by way of penalty.

The learned Assistant Sessions Judge acquitted the accused mainly on the ground that the prosecution was not able to show that the accused was not authorised to realise penalty and that the amount realised was of the tentative character subject to refund of the same by the Tahasildar. He was further of the opinion that p.ws. 3 to 5 were not deceived by any false representation. It is against this order of acquittal the State has filed the present appeal.

Mr. Misra, learned Counsel for the Respondent raised two preliminary objections to the maintainability of the prosecution. His contentions were:

(1) That the alleged act of forgery by the accused having arisen out of the proceedings of a Revenue Court, the prosecution is not maintainable without a formal complaint by the said Court M'' contemplated u/s 195(1)(c) read with Section 476 of the criminal Procedure Code, and, (ii) the parties having compounded the offence outside the Court, the prosecution cannot proceed with the case, and the Court must record an order of acquittal. As I shall presently show, there is no force in either of these contentions.

Section 195(1)(c) Code of Criminal Procedure does not covel a case u/s 420 of the Indian Penal Code. Undoubtedly the offence of forgery as described u/s 463, Indian Penal Code is one of those offences where the Court can not take cognizance except on a complaint in writing of a Revenue Court. It is clear however from the provisions of that section that such a complaint is to be filed only when the offence is committed by a party to any proceeding, and not by any stranger. The accused-pro cess-server in this case cannot be said to be a party to a proceeding. This view appears to be supported by a decision reported in Lala Mathur Prasad Vs. Pitambar Singh, , where a similar question came up for consideration. Their Lordships held that the bar in Clause (c) of Section 195(1), Code of Criminal Procedure is in respect of offences mentioned therein, alleged to have been committed by a party to arty proceeding in any Court find there is no bar in respect of a person who is not a party to any such proceeding. Such a person does not come within the purview of Section 476 in respect of -offences mentioned in Clause (c) of Section 195(1), Criminal Procedure Code. Thus, the contention of the learned Counsel in this behalf must fail.

With regard to the second contention of Mr. Misra, the position is absolutely clear. An offence u/s 466, Indian Penal Code is not compoundable at all and an offence u/s 420, Indian Penal Code is compoundable only with the permission of the Court as would appear from Section 345, Criminal Procedure Code. Here, it is not the case of the parties that they obtained permission of the Court for effecting a compromise. In fact the story of compromise has not been pleaded by the accused. All that he said was that he did not received any money in excess of the sum of Rs. 1. 75 nP. Which was legally due. No doubt, there is some evidence to show that a compromise was attempted by Nilakantha Naik, brother of the accused, and a sum of Rs. 50/- was deposited with P.W. 7, and Ekrarnamas, exts. 7 and 8 were executed for the purpose. But the recitals in both these documents show that there was only a proposal for a compromise which did not take any final shape. P.Ws. 3, 4, and 5 have stated in express terms that though they were asked to take back the money and effect the compromise they refused to do so. Prosecution relied upon these two documents as circumstances against the accused showing that in fact he received the excess amount and wanted to refund the same through his brother Nilakantha, to the persons from whom he received the same. The learned trial court rightly rejected this as a piece of circumstance against the accused, as the agreement made by his brother would not bind the accused. As stated before, the accused has nowhere pleaded this composition of the offence. Mr. Misra, however, contended that once the compromise comes to the notice of the Court, it is the duty of the Court to give effect to it and in support of his contention, he relied upon a decision of the Madras High Court reported in Kumarasarni Chetty v. Kuppusami and Ors. AIR 1919 Mad. 879. In that case, it was held by their Lordships that to operate as an acquittal, the compounding must have been completed and any incomplete agreement would not amount to an acquittal within the meaning of the law. No doubt, their Lordships observed that once a composition has been effected, the matter is at an end and the person injured cannot effectively resile from the agreement. If he chooses to do so, it is for the Court to enquire Into the accused''s allegation that the offence was compounded out of Court and to direct an acquittal under the section, if it so finds. But here, as we have seen above, the accused never took any plea of prior composition of the offence. This contention of the learned Counsel also cannot prevail.

Coming to the facts of the case, p.ws. 3, 4 and 5 started some mutation cases, Nos. 299, 303 and 302 of 1959-60 respectively, before the Tahasildar of Kuphinda, and the accused who was a process server was entrusted with the service of the connected proclamation notices. He was authorised to collect only Rs. 1.75 nP, from each of the party in the aforesaid cases. But as already stated he went to the village of p.ws. 3, 4 and 5 and collected Rs. 28.75 nP, from each of p.ws. 3 and 4 and a sum of Rs. 20. 31 np. from P.W. 5. When he was asked as to why they were being called upon to pay such heavy sums, he replied them saying that they were paying the amounts towards penalty and if they would pay the amounts, they would get their Pattas earlier. The accused was entrusted with a receipt-book for collection of moneys from the parties from which he granted receipts to each of these parties. In the outer-foil of the receipts that were granted to the parties he mentioned the sums as he received from the whereas in the inner-foil he only mentioned Rs. 1.75, nP., the amount actually due from the parties. In the inner-foils of the receipts he also took signed endorsement of the parties in order to show that they had paid not more than what has noted in the office copy of the receipts. The parties were, however, given receipts for the amounts actually paid by them. It is in evidence that no penalty is realised at the time of service or the proclamation and the penalty is realisable only after the mutation is effected. Exts. 6, 6/1 and 6/2 are respectively the receipt numbers 16, 17 and 18 granted to p.ws. 3, 5 and 4 showing realisation of Rs. 1.75 np. from each of these witnesses whereas in the corresponding outer-foils exts. 6/3, 6/4 and 6/5 anted to p.ws. 3, 4, and 5 the excess amount as realised from these witnesses has been shown. P.W. 2 is the Nazir of the Revenue Court at Kuchinda. He has deposed to have entrusted the relevant proclamation notices, ext. 2, 3 and 4 in connection with the Mutation Cases of p.ws. 4. 3 and 5 respectively. In exts. 2, 3 and 4 the accused also made endorsements of the service of notices and the receipt of Rs. 1.75 nP. from each of the parties, 2/1, 3/1, and 4/2. The Nazir is acquainted with the handwriting of the accused. He has also proved exts. 6 to 6/5. According to hi m these receipts were meant to be granted to the persons from whom any money is realised by the process server. P.Ws. 3, 4 and 5 have clearly stated that they paid the excess amounts to the accused on his false representation that the same was payable by way of penalty. P.Ws. 6 and 10, Brusavanu Panda and Surtidhar Palai, respectively, have also supported this part of the story. According to them the witnesses, p.ws. 3, 4 and 5 were unwilling to pay the excess amount, but the accused told them that according to a recent circular the peons were to realise the penalty and deposit it in the treasury, and so the parties paid him the excess amount demanded. Thus, there cannot be any doubt that p.ws. 3, 4 and 5 parted with the excess amounts on the fraudulent representation of the accused. On a comparison of both the receipts it is clear that the excess amounts did not find place in the original ones. The learned trial Court was unable to see any fraudulent intention on the part of the accused. I am, however, in complete disagreement with him. The transaction, on the very face of it, shows that the accused intended to defraud p.ws. 3, 4 and 5. The position, no doubt, would have been different, if the sums would have been mentioned on both parts of the receipts, that is, on both the inner and outer foils. Clearly enough the accused tried to suppress the actual amounts he realised from the above persons as he showed only the actual dues from them in the office copy of these receipts. In his statement u/s 342 he denied to have received the excess amounts, but in view of the evidence as discussed above it is clear that he received those sums on dishonest inducement and gross misrepresentation, and thus he was clearly liable u/s 420, Indian Penal Code.

Mr. Misra, learned Counsel for the Appellant, contended that the intention of cheating must be present at the time of the alleged act of cheating and any dishonest intention that may subsequently develop is irrelevant and cannot amount to an act of cheating. In support of his contention, he relied upon two decisions of the Calcutta High Court, in Harendra Nath Das Vs. Jotish Chandra Dutt, and Motilal Chakmvarty v. The King AIR 1949 Cal. 586. In Harendm Nath Das v. Jatish Chandra Dutt, the accused induced another to give him a receipt for a Bought Note which the accused-firm had signed as a broker on behalf of another bogus firm. The accused used the name of a bogus firm with the object of not fulfilling the contract in the event of the market going up. As the market did go up he did not supply the goods with the result that the party suffered loss. Their Lordships held that such remote consequences must be ignored for the purpose of Section 415 and in a case of cheating the intention of the accused at the time of the offence is to be seen and the consequence of the act or omission itself is to be judged. In the present case there is no question of any such contingency arising in future and the loss caused to p.ws. 3, 4 and 5 was the immediate result of the act of the accused. In the second case in Motilal Chakravarty v. The King, it was held by their Lordships if the person making the representation honestly believed the representation to be true, there can be no question of cheating. But if he knew that the representation was false and he made it with a view that the other person should act upon it, then that would amount to cheating. This decision therefore is of no avail to the accused-Appellant in view of the clear and categorical evidence in this case here is nothing to show that the accused believed that the amount collected by him was in fact due from the parties or the representation made by him was true. It is well settled that the intention to cheat can only be gathered from the surrounding circumstances and no direct evidence is possible to ascertain the intention of the accused. Thus the accused committed an offence u/s 420, Indian Penal Code, and he must be convicted under the said section.

Coming to the charge u/s 468, Indian Penal Code, it is the case of the prosecution that the accused forged the outer foils and used the same for the purpose of cheating. As already stated, the outer foils, exts. 6/3 to 6/5 were false documents and it cannot be doubted that they were so made with the intention to cause damage or injury to those witnesses and to induce them to part with, the excess amounts. Therefore those documents were forged and were used for the purpose of cheating. Accordingly the offence u/s 468, Indian Penal Code is also made out against the accused. In view of this position, the order of acquittal passed by the learned trial court must be set aside and the appeal allowed.

In the result, the Respondent-accused is convicted u/s 420, Indian Penal Code and is sentenced to R.I. for six months. He is also convicted u/s 468, Indian Penal Code and is sentenced to undergo R.I. for six months, but the sentences are to run concurrently.

Appeal allowed.