SURENDRA MAGANLAL KATHIA Vs. BAI NARMADA WD O JETHALAL KHEMCHAND
HIGH COURT OF GUJARAT
SURENDRA MAGANLAL KATHIA
BAI NARMADA WD/O.JETHALAL KHEMCHAND
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(1.) This revision application is directed against an order of discharge of the accused who were charged under sec.420 read with sec. 34 I. P. Code. The case against them was that the four opponents who will hereinafter be referred to as the accused entered into an agreement for the sale of a house although at that time there was an injunction order of a civil court issued to them under which they were prohibited from selling the property. It was therefore contended that the complainant was deceived as the fact of an injunction order was concealed from the complainant by the accused and that as a result of this deception the complainant gave Rs. 8 0 to the accused. The learned Magistrate held that the accused were not bound to disclose to the complainant that there was an injunction order of a civil court. He therefore thought that the matter was one of a civil nature and therefore discharged the accused.
(2.) In revision it is contended that the order of discharge is wrong. Exception to sec. 415 I. P. Code provides that a dishonest concealment of facts is a deception within the meaning of that section. On the question as to whether there can be a concealment of facts when there is no duty to speak or to disclose the facts there has been a difference of opinion among the High Courts. It was held in Karachi Municipality v. Bhojraj A.I.R. 1915 Sind 21 that no concealment of a fact is dishonest within the meaning of sec. 415 I. P. Code unless there is a legal obligation to disclose it. But this view was not accepted by the Allahabad High Court in Banwarilal v. The State A.I.R. 1956 Allahabad 341 where the following observations are made:- -
The explanation to sec. 415 makes it clear that dishonest concealment of fact is a deception within the meaning of the section. It is to be noted that the concealment of fact that is said to be a deception is dishonest concealment and not illegal and deliberate concealment. If a statute requires a person to mention a fact and he conceals it it is illegal and not necessarily dishonest concealment of the fact.
(3.) This concealment may be deliberate or conscious or may be accidental or bona fide arising out of ignorance of law. Accidental or bona fide concealment even though it is illegal may not be said to be deception but according to the authorities mentioned above dishonest concealment is not deception unless it is illegal and deliberate. The language of the explanation is however different. It does not make deliberate and illegal concealment deception; instead it makes dishonest concealment deception.;
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