IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No.548 of 2004. Judgment reserved on 24th August, 2011. Date of Decision: 26th August, 2011. State of Himachal Pradesh .. Appellant. Versus Prem Singh .. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. P.M. Negi, Deputy Advocate General. For the respondent: Mr. N.K. Thakur, Advocate. Surinder Singh, J. The respondent was acquitted in Criminal Case No.6-I-04/5-II/04, by the learned trial Court vide its judgment dated 12.8.2004, for the offences punishable under Sections 419, 420, 468, 471, 120-B of the Indian Penal Code, hence the present appeal by the State. 2. In short, the prosecution case, as emerges from the evidence on record, can be stated thus. On 24.4.2003, the respondent was brought to the house of 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - PW1 Chaman Lal by PW3 Ravinder Kumar. Respondent represented himself as Junior Commissioned Officer (JCO) in the Army and told PW1 Chaman Lal that he would recruit his son PW8 Ravi Pal in the Army, if he was so interested, but he shall have to clear all the tests at the first instance. Ravi Pal who happened to be present there informed him that it might not be possible for him to clear all the tests. On this, the respondent demanded `20,000/- from PW1 Chaman Lal to get his son recruited in the Army. Chaman Lal only paid `10,000/- to him in the presence of his wife PW2 Nirmala Devi and his son Ravi Pal (PW8). After about 2-3 days, Chaman Lal came to know that he was cheated by the respondent as he had likewise cheated others. Thus Chaman Lal got recorded his statement Ext.PW1/A to the police on 30.4.2003. On the same day the respondent was arrested and police recovered from his possession joining letter Ext.P.1, character certificate Ext.P2, Photostat copy of ration- card Ext.P3, bonafide certificate Ext.P4, black purse Ext.P5, Identity-card of BSF Ext.P6, one stamp Ext.P7, one diary Ext.P8 and 17 photographs with two negatives Ext.P9 vide memo Ext.PW1/B. - 3 - 3. On 2.5.2003, Smt. Biasan Devi, during investigation presented one joining letter in the name of Som Nath Ext.P.10 and three question papers Exts.P11 to P13, which were taken into possession vide memo Ext.PW9/A. PW11 Piare Lal produced joining letter Ext.P14 to the police, which was also taken into possession vide memo Ext.PW9/B. Police also recorded the statements of the witnesses. 4. The specimen signatures of the respondent Ext.PW10/D to Ext.PW10/W were obtained and sent for the forensic examination to the Questioned Documents alongwith the disputed documents Q1 to Q3. Its report is Ext.PA, but no definite opinion could be expressed by the Forensic Science Laboratory. 5. After completing investigation, the case was presented for the trial of the respondent for the offences aforesaid. 6. Learned trial Court acquitted the respondent on the ground that the prosecution could not prove the case against the respondent beyond reasonable doubt, also that the statement of the prosecution witnesses are contradictory and also PW11 Piare Lal did not support the - 4 - case of the prosecution and the report of the forensic science could not connect him, with the alleged offences. 7. Shri P.M. Negi, learned Deputy Advocate General, vehemently argued that the learned trial Court wrongly discarded the statements of the prosecution witnesses. He further ventilated that it has come in the evidence on record that the respondent himself represented to be JCO in the Army and cheated complainant Chaman Lal inducing him to deliver `10,000/- to him, which fact stands proved. 8. On the other hand, Shri N.K. Thakur, learned Counsel for the respondent, forcefully argued that there are contradictions in the statements of the prosecution witnesses. For that he led me through the statements of PW3 Ravinder Kumar, PW1 Chaman Lal, PW2 Nirmala Devi and also PW8 Ravi Pal. It is also argued that the respondent was given beatings by the complainant-party and when the respondent threatened them to lodge FIR a false case was foisted upon him. He also ventilated that PW2 Nirmala Devi in her cross-examination stated that the respondent was already in their custody during the - 5 - previous night and the Lambardar was duly informed, whereas the record shows that he was arrested on 30.4.2003 from near a temple in the village, which makes the case of the prosecution doubtful. 9. I have considered the rival contentions of the parties and have meticulously gone through the evidence on record. 10. The sequence of the facts which are deposed by the witnesses are that PW3 Ravinder Kumar, who was running a tailoring shop at village Deoli, deposed that on 24.4.2003 at about 4.00 PM, the respondent came to him. He disclosed his name as Prem Singh. He also disclosed that his maternal uncle was Colonel in the Army. He further told him that he would get him employed in the Army as a Tailor-Master. At that time PW8 Ravi Pal, his friend was also present. He also told the respondent to get him employed in the Army. On this, PW3 Ravinder Kumar and PW8 Ravi Pal both went to the house of PW1 Chaman Lal, the father of Ravi Pal. The respondent demanded `20,000/- to get Ravi Pal recruited in the Army, but according to PW3 Ravinder Kumar, he did not know how much money was paid by complainant - 6 - Chaman Lal to him as the amount was not paid in his presence. PW3 further stated that the respondent contacted his father Gurdev Singh (PW4) for getting him (Ravinder Kumar) enrolled in the Army, but his father did not make any payment. 11. PW4 Gurdev Singh stated that the respondent also represented him that he was JCO in the Army and his maternal uncle was Colonel. He also told that his relatives have sent the respondent to him for getting his son, who was a tailor master, recruited in the Army and demanded `20,000/- from him, but he was not having the money. On 29.4.2003, the respondent again came to him. By that time, he had come to know that the respondent was a cheat and he had already taken `10,000/- from PW1 Chaman Lal, as such he informed the police telephonically and was arrested on the next day, i.e., 30.4.2003. 12. PW1 Chaman Lal and his wife PW2 Nirmala Devi categorically stated that the respondent represented himself to be the JCO in the Army. At that time, he was accompanied by PW3 Ravinder Kumar and demanded `20,000/- and everything would be settled by - 7 - him, but since he was having only `10,000/-, which amount was paid to the respondent in the presence of his wife and son Ravi Pal. After about 3-4 days he came to know that he was a cheat and committed a fraud, thus reported the matter to the police in terms of Ext.PW1/A. He further stated that when the respondent was arrested the articles Ext.P1 to P9 aforesaid were recovered by the police vide memo Ext.PW1/B in his presence. This fact has been corroborated by PW2 Nirmala Devi and PW8 Ravi Pal. PW2 stated that the villagers had given 2-3 slaps to the respondent in the evening and this fact was also reported to the Lambardar who came in the morning. She also stated that the aforesaid amount was paid to the respondent only at the behest of Ravinder Kumar, but later informed Chaman Lal that the respondent was a cheat. 13. PW8 Ravi Pal has also made similar statement. He denied that a false case was foisted upon the respondent as alleged. PW9 HHC Subhash Chand in his cross-examination stated that there were no visible injuries on the person of the respondent when he was brought by the police. He also denied about having made any - 8 - complaint to the police against the complainant-party and this defence has also been put but denied by PW10 ASI Deep Chand. 14. Further, PW11 Piare Lal also stated that the respondent allured him to get him employed in the Army. He also personated as JCO. The respondent demanded bonafide certificate from him which was got prepared by him (Piare Lal) and handed over to the respondent. He also stated that the respondent demanded `5,000/- from him. Since he was not having the money, but however he handed over the joining letter to him. By that time he came to know that it was a fraud. The respondent had personated as JCO in the Army. 15. In a case of cheating, the dishonest intention starts with the very inception of the transaction. The definition of the offence of “cheating” as envisaged in Section 415 of the Indian Penal Code requires deception of any person fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or intentionally inducing that person to do anything which he would not do or omit, if he were not so deceived, and - 9 - which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. It has two parts of deception. First part is that in some cases in which no transfer of property is occasioned by the deception and some in which such a transfer occurs, for these cases generally a general provision is made in Section 417 of the Indian Penal Code. For the cases in which the property is transferred a more specific provision is made by Section 420 of the Indian Penal Code, but in earlier case it lays down that an offence of cheating accompanied by a delivery of property may be punished under either of the Sections. 16. Once the prosecution is able to prove that the accused has cheated the complainant, and he did so by pretending himself to be JCO in the Army, i.e., by personation, he committed the offence under Section 419 of the Indian Penal Code. 17. In the instant case, there is overwhelming evidence that the respondent had deceived PW1 complainant to deliver the amount of `10,000/- to him for getting his son PW8 Ravi Pal enrolled in the Army by pretending himself to be the JCO and also that his - 10 - maternal uncle is in the Army. Had he not pretended himself to be so, the complainant would not have delivered the aforesaid amount to him. Since the complainant as also PW3 Ravidner Kumar and even PW11 Piare Lal stated that they were deceived by the respondent by personation, therefore, the offence of cheating by personation punishable under Section 419 of the Indian Penal Code is complete and stands proved against him and his acquittal for the said offence is perverse and set aside, as not borne out from the record. As such, the respondent is held guilty only for the offence punishable under Section 419 of the Indian Penal Code. Consequently, the appeal filed by the State is allowed. 18. In so far as the sentence is concerned, the offence under Section 419 of the Indian Penal Code is punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both. In the instant case, the respondent was arrested on 30.4.2003. He remained in the custody till the termination of the trial on 12.8.2004, i.e., nearly for about one year and four months. Since the respondent is not a previous convict, therefore, he is sentenced to the period - 11 - already undergone by him. Thus, the matter stands disposed of. Send down the record. August 26, 2011. (Surinder Singh), (rc) Judge.