Decided on September 20,1954

STATE Respondents


- (1.) This is an appeal from an order of Mr. V.P. Malhotra, Special Magistrate, Ambala, convicting the appellant under sections 469 and 477-A, Indian Penal Code, and sentencing him to five years' regornous imprisonment upon the first charge and to two years' rigorous imprisonment on the second charge. The two sentences have been ordered to run consecutively.
(2.) The facts which have given rise to this case are briefly as follows. The appellant Kuldip Singh was the sole proprietor of a concern known as the Kuldip Chemical and Oil Mills; and a limited liability company in which Kuldip Singh was a shareholder was formed and its company acquired all the assets and liabilities of the original Oil Mills. The assets included an area of land forming part of two kharsa numbers 1241 and 1244. The relevant area was 1 bigha 10 biswas. After the consolidation of holdings the khasra numbers assigned to this area were 1/485 and 1/486. Each of the khasra numbers was approximately 12 biswas in area and the two khasra numbers together measured 1 bigha 10 biswas. This land as I have already observed, was acquired by the limited liability company which was known as Kuldip Oil Industries Limited. Kuldip Singh had received full consideration for all the assets of the old firm including this land. The land has two previous charges upon it, one created in favour of Amar Singh who is a cousin of the appellant and the other in favour of Janki Das. These charges were created before the transfer of the property in favour of the Kuldip Oil Industries Limited. After this the appellant agreed to sell the two khasra numbers measuring 1 bighas 10 biswas in favour of Moti Parshad. He represented to Moti Parshad that the land belonged to him exclusively and was wholly unencumbered. Moti Parshad accordingly agreed to buy it for a sum of Rs. 4,000/-. The agreement to sell was executed on 10th June, 1948, and on this date a sum of Rs. 2,000/- forming part of the purchase price was paid to the appellant. The sale deed was to be executed within a year of this agreement. The sale deed was in fact executed on 24th April, 1949, and the balance of Rs. 2,000/- was paid. When it became known that the appellant had sold land which in fact belonged to the Kuldip Oil Industries Limited, proceedings against him were started in the Court of a Magistrate under section 409, Indian Penal Code. The challan was put into Court in July, 1950. The case remained pending for a considerable time partly because of a number of transfer petitions moved by the appellant. Moti Parshad now came to know that the land was not previously unencumbered but that it had two charges upon it. He thereupon filed a complaint against Kuldip Singh under section 420, Indian Penal Code, accusing him of having cheated him of a sum of Rs. 4,000/-. There was also a civil suit by Amar Singh for the realization of his mortgage money by the sale of the mortgaged property. The case under section 420 resulted in the appellant's conviction. The case under section 409 proceeded and finally the appellant was convicted and sentenced as stated above.
(3.) The facts in this case were not challenged before me and there can be no doubt that the appellant representing to Moti Parshad that (a) the land was unencumbered and (b) it belonged to him exclusively prevailed upon Moti Parshad to buy it and pay Rs. 4,000/ to him. In respect of this transaction the appellant was convicted and sentenced under sections 420, Indian Penal Code. The question raised in the present appeal, however, is that the appellant cannot be convicted under section 409 and 477-A, Indian Penal Code, because (a) there can be no misappropriation of immovable property as defined by section 405, Indian Penal Code, and (b) the appellant cannot be convicted a second time for the same act and that his present conviction is bad both because of the provisions of section 403, Criminal Procedure Code, and Article 20 of the Constitution.;

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