Decided on September 24,1958

Asad Ali Tahsildar Appellant
Answar Ali Respondents


J.N. Datta, J.C. - (1.)THIS is a reference by the learned Sessions Judge, and arises out of a complaint case under Section 417 of the I.P.C.
(2.)THE facts briefly stated are, that in 1952 the complainant (petitioner) filed a complaint against the Non -applicant, alleging that the N. A. had obtained settlement of some lands Benami in the name of the complainant. During the last Great War. the Government acquired these lands for a compensation of Rs. 763/ -. As the lands stood in the name of the complainant, Government paid the amount of compensation to him, and he in turn paid it to the N. A. Later the Government found that no compensation was payable, and the complainant was asked to refund the amount.
The complainant approached the N. A. and asked him to pay up, but he refused. The N. A. had thereby committed the offence of cheating. It is difficult to see how these facts would constitute the offence of cheating, but it is not necessary for the purpose of this reference to go into the merits of that question.

Be it as it may that case was compromised upon the N. A. agreeing to refund the amount of compensation and the N, A. was acquitted. According to the complainant he owed Rs. 450/ - to the N. A. and it was decided in the compromise, that the complainant would retain Rs. 100/ - out of it for the costs incurred in that criminal case by him, and repay Rs. 350/ - to the N. A., which he did at the time.

Thereafter the N. A. failed to pay back the amount of compensation, in spite of repeated demands. He therefore filed the present complaint out of which this reference arises, in 1954, alleging that had he known that he would be thus cheated he would neither have withdrawn the previous complaint, nor repaid Rs. 350/ - to the N. A. It might be mentioned here that all these terms were neither mentioned in the petition for permission to compromise or the compromise petition, and they contained a bare recital that the parties had compromised the case, being relations.

(3.)THE learned trial Magistrate, alter examining the prosecution witnesses framed a charge against the N. A. under Section 417, thus:
That you on or about the 30th day of July 1953 at a time at noon deceived complainant Sri Ansar Ali by fraudulently inducing him to deliver payment of Rs. 350/ - to you with commitment to him that you will pay off the government dues which you did not pay in the long run and thereby committed an offence punishable -under Section 417 I. P. C. and within my cognizance. And I hereby direct that you be tried on the said charge.

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