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IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, KAMRUP (METRO)

G.R.CASE NO. 1856/2009

U/S 406/420/34 IPC

State of Assam

-VS-

1. Mrs. Anjana Begum

2. Md. Selimuddin Choudhury

3. Hallaluddin Choudhury ...Accused

PRESENT:- Sri Tridip Kumar Bhattacharyya, AJS

For the state :- Ms. F. Begum, Ld. APP.

For the accused :-
Evidence recorded on :-
Argument heard on :-
Judgment delivered on : -
Mr. S. Ali, Ld. Adv.
08.08.2016, 09.09.2016, 28.11.2016,
05.11.2016, 12.11.2018, 18.02.2019
30.03.2019
12.04.2019

JUDGMENT

1. The accused person above named stood trial for offences punishable under section
420/406/34 of the Indian Penal Code.

2. The prosecution case in brief is that on 22.03.2009 one Chattar Singh Chouraria on
behalf of RP investment filed an ejahar before the Officer in charge of the Bharalumukh
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police station alleging inter-alia that the accused persons came for finance of a truck
bearing registration No. AS25B7855 and accordingly, on 24.03.2008 the accused
Anjana Begum was financed Rs. 2,25,000/- wherein the accused agreed to repay the
finance amount on 23 monthly instalments @ Rs. 13,600/- pm. But as per office record
she paid only five instalments and thereafter they came to know that the accused
persons have sold out the vehicle to some unknown person without their consent and
no objection certificate. The informant also stated that the accused persons cheated
them by selling out the vehicle without clearing the dues.

3. Accordingly, Bharalumukh P S case No. 91/2009 dated 25.03.2009 u/s 420/406 IPC
was registered, investigated into and finally charge-sheet was submitted against the
present accused persons u/s 420/406 IPC.

4. On their making appearance for facing trial, copies were furnished to the accused
persons and vide order dated 11.07.2016 charge u/s 420/406/34 IPC was framed
against the accused persons. On being read over and explained the contents of the
charge u/s 420/406/34 IPC the accused persons pleaded not guilty and claimed to be
tried.

5. During the course of trial the prosecution examined as many as 6 (six) witnesses
including the I/O and exhibited four numbers of documents. Thereafter, statement of
the accused persons are recorded under section 313 Cr.P.C wherein they admitted
that they have taken loan from the informant for purchase of the truck but denied that
the said truck was sold by the accused persons. The accused Anjana Begum also stated
that she repaid nine numbers of instalments. The defence examined one witness on
their defence.

6. Points for determination: After perusal of the Case record following points are
taken for determination-

(i) Whether the accused persons on 22.03.2008 and on the subsequent dates
under Bharalumukh Police station in furtherance of their common intention
cheated the informant by dishonestly inducing him to finance Rs. 2,25,000/-
on a vehicle bearing registration No. AS25B7855 with a promise to return the
same in 23 instalments along with interest and insurance fees but thereafter
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paid only five instalments and thereby committed an offence punishable under
section 420/34 IPC?
(ii) Whether the accused persons on the same time and place in furtherance of
their common intention being entrusted with the vehicle number AS25B7855
through finance provided by the informant had dishonestly misappropriate the
same by selling it without any clearance certificate and NOC issued by the
informant and thereby committed the offence punishable under section
406/34 IPC?

Decision and reasons thereof:

7. I have heard the arguments advanced by the ld counsel for both the sides and perused
the materials available in the case record. Let us now scrutinize the evidence on record
for arriving at a just decision.

8. PW 1 Chattar Singh Churaria deposed that on 22.03.2009 while he was working as

Manager of RP investment accused persons came to his office and asked for financing
a truck. Accordingly, after due verification on 24.03.2008 Rs. 2,25,000/- was financed
and the accused undertook to re pay the same in monthly instalments of Rs. 13,600/-
. But thereafter without taking any clearance certificate the accused sold the truck to
a third party. The informant also stated that after the case was filed accused repaid
another instalment at the police station. The police did not seize anything and only
took his sign in a piece of paper. The informant proved the FIR and the seizure list.

9. In the cross examination the informant deposed that there was a written agreement
between the company and the accused regarding finance but the copy of said
agreement was not given to the police. He also stated that on 22.02.2010 Rs.
2,53,000/- was due from the accused and accused deposited only five instalments. He
further deposed that he has no proof that the vehicle was sold by the accused and he
does not know what is written in Exhibit 2 i.e, the seizure list.

10. PW 2, Sri Hirachand Lunawat deposed that he knows the accused persons and he is
the attorney of RP investment. Accused approached the RP investment for taking a
loan and accordingly after entering into a hire-purchase agreement, Rs. 2,25,000/-
was financed to the accused but after giving only five instalments the accused did not
pay the remaining amount. Thereafter, the vehicle was seized and sold by the
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company. The police seized the registration certificate, hire purchase agreement etc.
of the vehicle. PW 2 proved the exhibit 3 i.e, undertaking given by the accused.

11. In the cross examination PW 2 deposed that he does not remember the rate of interest
of the finance given to the accused and after filing of the case the accused has not
paid anything to them. He does not remember whether the accused had sold the
vehicle without their knowledge. PW 2 further depose that the vehicle was sold by way
of auction.

12. PW-3 Pratik Lunawat deposed that they have business of vehicle finance and the
accused Anjana Begum took finance from their company but after repaying five
instalments of Rs. 13,000/- she did not pay anything. His office sent letter and also
called the accused but he is not aware what reply the accused gave. The PW 3 also
does not know what happened to the vehicle. In the cross examination he deposed
that he is the proprietor of the RP investment. He also stated that he does not know
whether the financed vehicle was seized and sold.

13. PW 4 Umakanta Bora the I/O deposed that he was the serving Sub Inspector of the
Bharalumukh police station. On 16.04.2011 he was entrusted to complete the
investigation and as the earlier I/O Binoy Kalita had already done the investigation as
such on the basis of materials available in the case diary he submitted charge sheet.
PW 4 proved the charge sheet. In the cross examination he stated that the vehicle
was not seized as the same was sold. He expressed his ignorance to the defence
suggestion that the earlier I/O had handed over the vehicle to the complainant which
was thereafter sold through auction.

14. PW 5 Binoy Kalita deposed that on 08.07.2009 he was endorsed to investigate the
case and on basis of record he seized a hire purchase agreement from the informant.
PW5 proved the seizure list.

15. PW 6 Nageswar Kalita deposed that initially he investigated the case. During
investigation he found accused Anjana Begum but did not arrest her as the
complainant told him that there were talks going on. In the cross examination he
stated that he did not make any seizure.
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16. DW 1 Salimuddin Choudhury, one of the accused in this case deposed that the co
accused are his mother and brother. His mother purchased a vehicle by help of finance
in the year 2008. The loan amount was Rs. 2,55,000/- repayable in 24 instalments @
Rs. 13,600/- pm. The loan was paid regularly and later on three instalments were
lapsed. Then the finance company took away the vehicle. Subsequently they
approached the finance company and paid the three instalments but they did not
return the vehicle. The vehicle was not sold to anyone. The documents of vehicle were
on the vehicle itself. They were not given any payment receipts by the finance
company. In the cross examination he stated that he was not a witness in the loan
agreement and as they could only pay only nine numbers of instalments as such their
vehicle was taken by the finance company.

17. An offence under section 420 of the IPC has following essentials:

(i)There must be deception i.e. the accused must have deceived someone;
(ii)That in the said deception, the accused must induce a person,
(a) To delivery any property; or
(b) To make, alter or destroy the whole or part of the valuable security
or anything which is signed or sealed and which is capable of being
converted into a valuable property.
(iii)That the accused did so dishonestly.

18. For a person to be convicted under Section 420 IPC, it has to be established not only
that he has cheated someone but also by doing so he has dishonestly induced the
person who was cheated to deliver any property etc.

19. Likewise, To bring home the offence under section 406 IPC the ingredients of
entrustment with property, having domain over it, and the same having been
misappropriated or converted to his own use by the accused person, are required to
be proved. Section 406 provides for the prescribed punishments for the offence
committed as described in Section 405 IPC. The ingredients of the offence under
section 405 are:

(i) there should be an entrustment by one person to another of the property or with
any dominion over property;
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(ii) such entrustment must be in trust;

(iii) there must have been a misappropriation or conversion of his own use by the
person who received the property in trust; and
(iv) Such conversion or retention of the property must be against or in violation of
any direction of law prescribing the mode in which such trust is to be discharged,
or of any legal contact made touching the discharge of such trust.

20. In the instant case the PW-1 , 2 and 3 deposed that the accused Anjana Begum came
to their office to get financial help for a truck and accordingly the truck was financed
after due verification. The prosecution witnesses also stated that after payment of five
nos. of instalments the accused failed to pay the remaining instalments. But in the
considered opinion of this court allegation that the accused have failed to pay the
remaining instalments is not enough for proving the offence under section 420 IPC.
There must be prima facie materials to suggest that the informant or the officials of
his company were deceived by the accused into financing the truck to the accused and
the hire purchase agreement was entered into by the informant and his officials by the
result of such deception. There is no material to suggest any dishonest inducement on
the part of the accused persons at the time of taking the finance from the informant.
Moreover, the prosecution also failed to produce any statement of account of the
accused persons maintained by the informant to show that the accused paid only five
instalments.

21. From the evidence on record it further appears that the informant although deposed
that the vehicle was sold by the accused to a third party without their consent but the
other PWs did not support him. Rather, PW-2, who introduced himself to be the
attorney of the financing company deposed that the vehicle was seized by them from
the accused and thereafter sold by way of auction. The PW-3 also expressed his
ignorance as to what happened to the vehicle. On the other hand the accused admitted
that they lapsed three instalments and as such the vehicle was seized. Thereafter they
approached the informant and paid the three instalments but by then the company
sold the vehicle in auction. This statement of the accused finds support from the
evidence of PW 6, when he deposed that during investigation the informant told him
that talks are going on between them and the accused persons. Thus it is apparent
that the vehicle was not sold by the accused but the same was seized by the financing
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company and later on sold by way of auction. As such shadows of doubt raised
regarding the truthfulness of the prosecution case.

22. From the adumbration of evidence and the requirements of law discussed above it is
now clear that the prosecution could not prove all the ingredients of section 420 as
well as section 406 of the IPC against the accused persons. The cardinal principle of
criminal jurisprudence is that in order to warrant conviction the prosecution has to
prove the offences against the accused person beyond all reasonable doubts. But in
this case the prosecution even could not stand on their own foot as all the legal
requirements of section 420 and 406 are not satisfied. Accordingly both the points
taken for determination are decided in negative.

23. Situated thus, accused persons namely Mrs. Anjana Begum, Md. Selimuddin
Choudhury and Hallaluddin Choudhury are acquitted of the offences u/s 406/420/34
IPC and set at liberty forthwith.

24. Bail bonds shall remain in force for next six months.

Given under my hand and seal of the court on this 12th day of April, 2019.

Dictated and Corrected by me

Judicial Magistrate First Class,
Kamrup (M)
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APPENDIX

WITNESSES FOR PROSECUTION:

PW 1……… Sri Chattar Singh Chouraria
PW 2……… Sri Hira Chand Lunawat
PW 3……… Sri Prateek Lunawat
PW 4……… Sri Umakanta Bora
PW 5……… Sri Binoy Kalita
PW 6……… Sri Nageswar Kalita

WITNESSES FOR DEFENCE:

DW 1……… Sri Sri Selimuddin Choudhury

PROSECUTION EXHIBITS:
Ext. 1……… FIR
Ext. 2……… Seizure list
Ext. 3……… Undertaking by the accused
Ext. 4……… Charge sheet

DEFENCE EXHIBITS:
NIL

Judicial Magistrate First Class,

Kamrup (M)