Case: Devender Kumar Singla Vs. Baldeo Krishan Singhla

given to the complainant who was examined as PW-3, during cross examination. 7. In order to appreciate the rival submissions, it would be necessary to consider on the background of the factual position as to whether offence punishable under Section 420 IPC is made out. Section 420 deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. Section 415 defines cheating. The said provision requires, (i) deception of any person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) 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. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction or. The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence. The essential ingredients to attract Section 420 are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and the (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420. (See Bashirbhai Mohamedbhai vs. State of Bombay (AIR 1960 SC 979 ). 8. As was observed by this Court in Shivanaravan Kabra vs. State of Madras (AIR 1967 SC 986 ) it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intention by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn. 9. On the proved facts it is seen that a cheque was handed over to the complainant and in the receipt it was stated that the shares have been received. The High Court has referred to this factual position and drawn a conclusion that the receipt (Ex. PW3/8) which was admittedly executed by accused Devender clearly states that the shares had been transferred. The mere fact that the cheque was filled in by the complainant is not sufficient to take away the effect of the statement in the receipt. The plea that it was an advance receipt does not appear to have been even agitated before the Courts below. 9. Significantly, there was no suggestion to the complainant (PW-3) that the shares had not been delivered. 10. Learned counsel for the accused appellant Devender strenuously urged by putting questions about the number of shares etc. it was indirectly suggested that there was no delivery of shares. When there was definite assertion about delivery of shares evidenced by a receipt, the inability of the complainant to tell number of shares is not sufficient to discard his case. It only establishes that the complainant did not remember the number of shares. The evidentiary value of the receipt is not in any manner disproved by the inability of the complainant to tell the numbers. Further, what appears to have weighed with the trial Court is that the transaction allegedly took place on 27.7.1992. Significantly there is also no suggestion to the complainant during cross-examination by the accused that the transaction was done on 27.7.1992 and not on 7.8.1992 as claimed by the complainant. Merely because the accused stated that he had not received the shares or that the transaction took place on 27.7.1992 in his examination under Section 313 of Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence. It is only the accuseds stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice.11. Absence of any suggestion during cross examination cannot be made up by a statement under Section 313 Cr.P.C. Act that stage, the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313.12. It is also seen that pre-varicating stands have been taken as to why stoppage of payment was done. As rightly noticed by the High Court, if the stand of the accused was that shares were to be handed over by 5.8.1992, there was no necessity to direct stoppage of payment on 1.8.1992. Stand before the trial Court was that accused Mala stopped payment when she came to know that accused No.1 had used her signed blank cheque. But during the course of arguments, learned counsel for the appellant submitted that the accused Mala had no knowledge of any transaction for purchasing 7000 Master Plus shares, with no identification or particulars of said shares.13. Above being the position, the High Courts judgment convicting the accused Devender suffers from no infirmity. However, custodial sentence imposed appears to be slightly on the higher side. Considering the peculiar circumstances of the case, we reduce the same to three months, instead of one year as directed by the High Court. Criminal appeal No. 1036/1997 is allowed only in respect of the sentence though challenge to the conviction has failed.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]So far as the appeal filed by the complainant is concerned, learned counsel for the complainant submitted that the accused Mala had stopped payment of the cheque and, therefore, being party to the transaction, she should also be convicted.6. So far as the appeal filed by the accused Devender is concerned, learned counsel submitted that the High Court has analysed the factual position. In view of the receipt executed, the contents of which are extracted in the High Courts judgment, there was no scope for the accused to pleaded that there was no delivery. Even if it is conceded for the sake of arguments that the complainant was not able to tell the full details regarding the shares, that does not in any manner corrode the credibility of his case. The plea that an advance receipt was given was never taken during trial and in any event no suggestion in that regard was given to the complainant who was examined asely because the accused stated that he had not received the shares or that the transaction took place on 27.7.1992 in his examination under Section 313 of Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence. It is only the accuseds stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice.11. Absence of any suggestion during cross examination cannot be made up by a statement under Section 313 Cr.P.C. Act that stage, the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313.12. It is also seen thatstands have been taken as to why stoppage of payment was done. As rightly noticed by the High Court, if the stand of the accused was that shares were to be handed over by 5.8.1992, there was no necessity to direct stoppage of payment on 1.8.1992. Stand before the trial Court was that accused Mala stopped payment when she came to know that accused No.1 had used her signed blank cheque. But during the course of arguments, learned counsel for the appellant submitted that the accused Mala had no knowledge of any transaction for purchasing 7000 Master Plus shares, with no identification or particulars of said shares.13. Above being the position, the High Courts judgment convicting the accused Devender suffers from no infirmity. However, custodial sentence imposed appears to be slightly on the higher side. Considering the peculiar circumstances of the case, we reduce the same to three months, instead of one year as directed by the High Court. Criminal appeal No. 1036/1997 is allowed only in respect of the sentence though challenge to the conviction has failed.