BISHAMBHAR DAYAL Vs. TALIBALI
HIGH COURT OF ALLAHABAD
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Gyanendra Kumar, J. -
(1.)THIS is a revision by the complainant against the appellate order of the Sessions Judge of Etah allowing the appeal of the opposite party Talib Ali and acquitting him of the charge under Section 420 of the IPC, which had been found established by the trying Magistrate. The State has not filed any appeal against the acquittal of the opposite party, but the complainant has come in revision as stated above.
(2.)THE facts are hardly in dispute. Talib Ali accused [opposite party] was the owner of a house in the town of Kasganj. On 19.11.62 he executed a deed of agreement to sell the house to Smt. Surjit Kaur for Rs. 6,000/ -. He also received Rs. 200/ from her as earnest money. However, on 3.12.62, he entered into a similar agreement with Smt. Ram Devi, wife of the complainant (Ex. Ka 1) to sell the house to her for Rs. 6,100/ - and received Rs. 500/ - as earnest money from her. Nevertheless on 13.12.62 he executed a sale deed of the house in favour of Smt. Surjit Kaur, with whom he had first entered into an agreement of sale on 19.11.62. On that very day, the complainant lodged an FIR against the accused who was sent up by the Police to stand his trial Under Section 420 IPC.
The accused pleaded not guilty and stated that he had first executed a deed of agreement dated 19.11.62 in favour of Smt, Surjit Kaur for the sale of the house and had received Rs. 200/ -from her as earnest money . But later on he found that she was unwilling to purchase the property, so he entered into a similar contract (Ex. Ka 1) with Smt. Ram Devi on 3.12.62 and received from her a sum of Rs. 500/ - by way of earnest money. But his case was that he had disclosed to her and her husband Bishambhar Dayal complainant about previous negotiation with Smt Surjit Kaur. The complainant, however, denied that the accused had made such a disclosure to him or his wife.
(3.)THIS case has been argued at considerable length by the learned Counsels for the parties. It is true that one of the cases relied upon by the Sessions Judge was that of Karachi Municipality v. Bhoj Ram (1) (16 Cri LJ 706:, AIR 1915 Sin 21) which was dissented from by a Division Bench of our Court in Banwari Lai v. State (2) (AIR 1956 All. 311). Thus the Sessions Judge had, perhaps, erred on the above point of law. In the case of Karachi Municipality v. Bhoj Kaj, (1), the Sind Judicial Commissioner's Court, relying upon an earlier case of this Court in Emperor v. Bishan Das  [ : ILR  All. 561] had held that an concealment was dishonest within the meaning of Section 415, IPC unless there was a legal obligation to disclose it. This view was dissented from by a Division Bench of this Court in Banwari Lal's case . which laid down that there could be dishonest concealment even in the absence of statutory duty to speak. In that case the accused had pledged a number of tins with a Bank representing them to be full of pure ghee, although most of them contained a mixture of cement, sand and saw dust. To evidence the pledge, the Bank had placed its locks on the godown of the accused. The accused then borrowed large sums of money from the complainant, without any intention to repay the loan, on the security of the same tins alleged to contain pure Ghee, by surreptitiously removing the locks of the Bank and keeping his godown open, so that the complainant might not come to know that the goods had already been pledged with the Bank. Under these circumstances it was held that the accused was guilty of a dishonest concealment and had committed the offence of cheating within the meaning of Section 415, IPC
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