Thanx, I found a judgment.
Equivalent citations: AIR 1952 All 428
Bench: P Bhargava
Rama Shankar Shukla vs Rikhab Kumar Jain on 13/2/1951
P.L. Bhargava, J.
1. This is an application in revision by Shri Rama Shankar Saukla, a lawyer
practising before the Income-tax and Sales.tax Officers in Kanpur.
2. Shri Rikhabh Kumar filed a complaint against the applicant, on 18-6 1949,
charging him with an offence, punishable under Section 420, Penal Code. It was
alleged in the complaint that Shri Shukla had induced the complainant to pay him
Rs. 1,100 on the assurance that he had some influence with the Income-tax
Officer, Kanpur, and that he would exert that influence to secure some relief in
the assessment of income-tax on the complainant; but the applicant did nothing
of the kind and it was subsequently discoverd that Shri Shukla had no such
influence over the Income-tax Officer.
3. The Magistrate, who took cognizance of the offence, recorded all the
evidence produced in support of the prosecution and also examined Shri Shukla.
Then he proceeded to hear arguments on behalf of the complainant and Shri Shukla
and dismissed the complaint and discharged the accused. The learned Magistrate
observed in his judgment that, after a careful consideration of the evidence on
the record, he bad come to the decision that no prima facie case was made out
against the accused, who must consequently be discharged. He, however, further
"The entire evidence and facts of the case boil down to practically this that the complainant and the accused made the illegal and void agreement between themselves that the latter shall exercise his influence over the Income-tax Officer Kanpur in obtaining some relief to the former in matters of assesement of income-tax. The accused, however, did not exercise the alleged influence he had over the Income-tax Officer and, as it turned out later, he had no influence over the said Income-tax Officer. The complainant filed this complaint under Section 420, Penal Code, with regard to the money he paid to the accused for the illegal act referred to above."
After thus summarising his conclusions on the evidence the Magistrate stated
the legal position thus:
"There can be certainly no controversy about the legal aspect of this
complaint and it must fail. If two cheats conspire to cheat a third party and
later one of the two falls out, he cannot be said to have cheated the other
cheat. The complainant wag essentially doing an improper act in engaging the accused to exercise undue influence on the Income tax Official and thus affect his decision. The contract could not be enforced in a civil Court for being void and opposed to public policy."
4. The complainant then filed a revision in the Court of the District
Magistrate of Kanpur; and the revision came up for hearing before the Additional
District Magistrate of the same place who did not agree with the view point of
the trial Court that, even if the applicant had paid Rs. 1 ,100 to the accused,
it was an illegal and void agreement and so no offence was committed. He was of
the opinion that there was sufficient prima facie evidence against the opposite
party for a charge being framed against him. Accordingly, he remanded the case
to the trial Court with a direction that further inquiry should be made in the
case and necessary action should be taken according to law.
5. Against this order of the Additional District Magistrate this revision has
been filed. Learned counsel for the applicant has, in the first place, contended
that inasmuch as the complaint filed by Shri Rikhabh Kumar is based upon an
illegal contract, in respect of which a civil remedy is barred, it is not open
to the complainant to prosecute his co-conspirator. This argument assumes the
correctness of the finding of fact recorded by the learned Magistrate that
between the complainant and the accused there was an illegal and void agreement
of the nature alleged in the complaint. If the applicant had induced the
complainant to part with a sum of Rs. 1,100 on the assurance that ha would exert
his influence over the Income-tax Officer so as to persuade him to assess the
complainant in a particular manner, the Magistrate had only to see what offence,
if any, had been committed by the applicant and for what offence he should be
charged. Learned counsel for the complainant has pointed out that the applicant
could have been charged for all or any of the offences punishable under Sections
420, 163 or 409, Penal Code. If the facts proved by the evidence constituted the
offence with which the applicant was charged or any other offence, it was
immaterial whether the offence involved an illegal or void contract, which could
not be enforced in a civil Court.
6. It is not possible to lay down as a general proposition of law that in each and every case where cheating is based upon a void and illegal agreement there can be no criminal prosecution for cheating. The offence of cheating has been thus defined in Section 415, Penal Code:
"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'."
The essential ingredients of the offence of cheating, therefore, are (1)
deception of any person and (2) (a) fraudulently or dishonestly inducing that
person to deliver any "property to any thereon; or 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. If the essential ingredients of
the offence of cheating are made out the prosecution and conviction of the
accused is possible, irrespective of the fact whether cheating is based upon a
void or illegal contract.
7. Learned counsel for the applicant has in support of his argument relied
upon a decision of the Bombay High Court reported in Emperor v. Jani Hira, 15.I.
C. 793 (Bom). In that case A agreed to let her daughter on hire to B for
concubinage for a period of one year in consideration of B paying her Rs. 70. B
paid A Rs. 85 in advance. Subsequently A refused to deliver her daughter to B or
to return the sum of Rs. 85 advanced by him. On these facts, A was convicted of
cheating. There it was held that the conviction could not be sustained, as a
party should not be allowed to prosecute on a charge of cheating when he would
not be entitled to obtain from a civil Court any relief for breach of the
contract. It appears from the report that there was no evidence to show that
there was any fraudulent or dishonest intention on the part of the accused when
she took the advance of Rs. 35 from the complainant. On the other hand, it
appeared that at that time she intended to let the complainant have her daughter
and only changed her mind later. Consequently, the conviction for the offence of
cheating was bad in law. A contrary view was, however, taken by a Division Bench
of the Oudh Chief Court in Emperor v. Raghunath, A. I. R. (28) 1941 Oudh 3 where
it was held that a criminal prosecution for cheating can be based on a contract
which cannot be enforced in a civil Court. This view is in consonance with the
view taken by me above. I, therefore, see no force in the first contention put
forward on behalf of the applicant.
8. In the next place, it has been contended on behalf of the applicant that
the Additional District Magistrate could not have set aside the order of
discharge unless it was found to be manifestly perverse. The judgment of the
trial Court, read as a whole, leaves no room for doubt that the Magistrate
accepted the prosecution case as set out in the complaint; but having regard to
the fact that the cheating was based upon a void and illegal contract, which
could not be enforced in a civil Court, he held that the prosecution could not
proceed. For the reasons stated above, that view Cannot be sustained. In view of
the facts disclosed in the evidence, the learned Additional District Magistrate
was justified in holding that there was sufficient prima facie evidence for a
charge being framed against the applicant. That being so, there can be little
doubt that the order of discharge was manifestly perverse, which was rightly set
aside by the learned Additional District Magistrate.
9. In the third place, learned Counsel for the applicant has argued that the
most important piece of evidence against the applicant was the statement of the
complainant, who was in a position of an accomplice; consequently his statement
could not be admitted in evidence or relied upon. In such cases the complainant
is undoubtedly an important witness and even as an accomplice he is a competent
witness. No doubt, there is a presumption that an accomplice is unworthy of
credit, unless his evidence is corroborated in material particulars; but it is
incorrect to say that his evidence is inadmissible. In this case, we find that
in order to corroborate the complainant's evidence a number of witnesses were
examined and his evidence is corroborated in material particulars. Babu Lal
Munim (P. w. 2) was examined to prove an entry in the account-books of the
complainant, which showed a payment of Rs. 1,100 to the applicant. There were
two other witnesses, Bal Mukund and Bharat Singh (p. Ws. 3 and 4), who stated
that in their presence the applicant had admitted having obtained the money from
the complainant, and had also promised to return the same. The Income-tax
Officer was examined as P. W. 6, who stated that the complainant had made a
complaint to him against the applicant. There was one more witness, the Bank
manager, who proved that on the particular day on which the amount of Rs. 1,100
was paid by the complainant to the applicant a sum of Rs. 1,000 was withdrawn by
the complainant. The evidence of the complainant was, therefore, admissible and
rightly relied upon.
10. Lastly, it has been argued on behalf of the applicant that the Magistrate
having recorded the entire evidence and based his decision thereupon, there was
no necessity of any further inquiry and consequently the order of the Additional
District Magistrate directing a further inquiry was improper. It is true that
the entire evidence in support of the complaint had been recorded by the
Magistrate; but, on that evidence, he having come to the conclusion that the
complainant and the accused had entered into an illegal and void agreement,
could not discharge the applicant--he had to frame a charge and to proceed with
the trial. The learned Additional District Magistrate, being of the opinion that
there was prima facie evidence for a charge being framed against the applicant,
was perfectly justified in making an order that the trial Court should, after
further inquiry, take necessary action according to law; or, in other words,
proceed with the trial according to law.
11. Having regard to all the circumstances appearing on the record, I am of
opinion that the order made by the learned Additional District Magistrate was
perfectly correct; and there is no reason whatsoever to interfere with the same.
The revision, is accordingly, rejected. The stay order is vacated. Let the
record of the case be returned to the Court concerned without any delay.