State of Punjab vs Romesh Kumar Gupta

S.D. Bajaj, J.

Manager Chowra Bazar Branch of the New Bank of India Ltd. at Ludhiana wrote to the Senior Superintendent of Police, Ludhiana, on July 3, 1975 as follows :

"The New Bank of India Limited.

Chowra Bazar

Ludhiana

(Pb)

Dated 371975.

The Senior Superintendent of Police, Ludhiana.

D/Sir,

Reg : M/s Vinod Trading Co. and

M/s Vinod Wollens, Lella Mal Street

This is for your kind information and necessary action that the above said parties have cash credit accounts with the bank and the sums of Rs. 728607.74 and Rs. 502975.98 are outstanding against them against pledge of goods.

That the above said parties in order to defraud the bank in connivance with Shri Subhash Chander Gautam godown keeper of bank have illegally taken deliveries of some of the goods pledged with the bank. Feeling criminal action against them they confirmed the fact of having taken deliveries of goods illegally and promised to pay the amount due against the deliveries of the goods so taken by them.

That now it is learnt that the said parties in order to overawe and pressurise the local Bank authorities are trying to involve them illegally on false allegations although the bank is a public institution and its authorities have no animous against any body rather it has to perform its duties as custodian of public funds and in case the bank authorities are allowed to be pressurised then there shall be no end to frauds or public monies.

Under the circumstances it is prayed that the matter may be got investigated or due protection be afforded to the bank authorities.

SHO Division No. 4 to register a case immediately and take its investigation.

Yours faithfully,

Sd/ (Manager)."

Sd/ Dalbir Singh

S.S.P.

3775.

Formal First Information Report No. 164 came to be registered on its basis in Police Station, Division No. 4 at Ludhiana at 10.00 A.M. on 3rd July, 1975. On being charged with the commission of the offence under section 420 of the Indian Penal Code accused Ramesh Kumar pleaded not guilty thereto and claimed to be tried. Vide its impugned judgment dated 6th November. 1981 learned lower Appellate Court acquitted him of charge holding that his liability towards the Bank was of civil nature and, therefore, set aside the conviction recorded by the learned trial court against him on 23rd July, 1980. Feeling aggrieved from judgment of acquittal aforesaid the State of Punjab has filed Criminal Appeal No. 113DBA of 1983 in this Court.

We have heard Shri Randhir Singh, A.A.G. Punjab for the appellant State, Shri K.S. Ahluwalia, Advocate with Shri M.L. Saggar and Shri O.P. Sharma, Advocates, for the respondent and carefully scrutinized the relevant material on record.

The ingredients of the offence under section 420 are that the person deceived delivered to someone a valuable security or property, that the person so deceived was induced to do so, that such person acted on such inducement in consequence of his having been deceived by the accused and that the accused acted fraudulently or dishonestly when so inducing that person.

In order to constitute an offence or cheating it must be established that the accused deceived the complainant dishonestly inducing him to part with any property in his favour which he would not have parted but for the deception played on him. It is thus obvious that dishonest intention on the part of the accused at the time of making the representation to the complainant on the basis of which complainant parts with his property is an essential ingredient of the offence. In other words, mens rea on the part of the accused must be established before he can be convicted of an offence of cheating.

PW3 Tarsem Lal Bank Managers states :

"In 1975, I was posted in Choura Bazar, Ludhiana. I was working as a Manager since 191970. Our Bank was having accounts of M/s Vinod Trading Company and Vinod Woollens. These firms were having accounts with us since 1959. Again said M/s Vinod Trading had account since 1959. Both the firms were enjoying cash credit limit of rupees 71/2 lacs and rupees 51/2 lacs. These facilities were according to the Rules of the Bank. These limits were sanctioned by the head office. These facilities were subject to pledging of the goods (by these firms). Yarn of every kind was pledged.

Subhash Chander was incharge of the godown and keys were with Siri Ram Assistant Manager. Keys are issued after making an entry in key book and register. Keys are given to Godown Keeper after making entry in the key book. Keys are given to the Godown Keeper only when the goods are given to the parties. Godown keeper takes key and Assistant Manager signs the same. I have not brought the key movement register. Key given to the Godown Keeper when any operations is being done by the bank in the godown. Keys are only given when any operation is made in the Godown. On 28673, Godown Keeper had taken the key with the signatures of Assistant Manager for operation of the Godown. Keys are handed over to the Godown Keeper after verification of the account."

Similarly Subhash Chander Gautam PW6 also states :

Gopal Krishan Aggarwal Cashier stated that I should take the keys and deliver the goods to the accused and get their goods deposited. I and Ramesh Kumar went to the Godown together from the Bank. Accused pledged the goods vide document Ex., PW5/H and PW 5/I. I do not remember the time when the goods were delivered to the accused. That is mentioned in the keys register. Key is issued only when the Bank is satisfied that the goods are to be delivered to the parties."

In almost similar circumstances their lordships of the Supreme Court observed in Mahadeo Prasad v. State of West Bengal, AIR 1954 SC 724, "Where the charge against the accused is under Sec. 420 in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating."

Supreme Court observations reproduced above being in line with the decision rendered by the learned lower Appellate Court on 6th November, (198..SICK WORD), State Appeal filed against the judgment of acquittal of respondent accused is rendered wholly without merits and is consequently dismissed.