LexABDUL FAZAL SIDDIQUI versus FATEHCHAND HIRAWAT AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
- .. ABDUL FAZAL SIDDIQUI A v. FATEHCHAND HIRAWAT AND ANR. AUGUST 20, 1996 (DR. A.S. ANAND AND K.T. THOMAS, JJ.] B Indian Penal Code, 1860: Sections 24, 25, 415, 420/120 and 420/34. Cheating-Essential ingredients of-Advance loan against stock in trade of business-Representation that business in question was free from all C encumbrances-Later it was found that property in question was encumbered property and receivers had been appointed in respect of that propeity by the High Court:-Trial for cheating-Conviction of accused by Trial Court-Con- viction and sentence upheld by High Court-Appeal-Held there was nothing on the record to show that the appellant- accused had any knowledge about the property being an encumbered property or about the appointment of the D Joint Receivers by the High Court in respect of that property-No evidence to show that the appellant knowingly made any false representation much less dishonestly or fraudulently--Basic ing:-edients of the offence of cheating are, therefore ntissing in the case--Evider1ce on tecord dves not connect the appellant 1vith the crinte alleged against hint at all-A nzere representation E which is neiOzer claimed nor alleged to be dishonest or fraudulent does not attract the charge of cheating only because the complainant paits with his ntoney on the basis thereof-Conviction and sentence recorded against the appellant held unsustainable. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. F 42 of 1981. From the Judgment and Order 30.8.79 of the Calcutta High Court in Crl.A. No. 149 of 1972. Rathin Das and Dipak Bhattacharyya for the Appellant. In-person for Respondent No. 1 (NP). Pranab Kumar Chatterjee (NP) for the State. The following Order of the Court was delivered : 807 G H A B c 808 SUPREME COURT REPORTS (1996] SUPP. 4 S.C.R. Respondent No. 1 filed a complaint in the Court of Additional Chief Presidency Magistrate, Calcutta, against the appellant (Al), Kochi Mia (A.2) and Fazlur Rahman (A.3) alleging offence under Section 120-B read with Section 420 !PC and in the alternative under Section 420 !PC read with Section 34 !PC. According to the complainant, Kochi Mia (A.2) and the appellant met him and requested him to advance money against the stock-in- trade of business of the Calcutta Cafe of which Fazlur Rahman (A.3) was represented to be the proprietor. The Complainant wanted to meet Fazlur Rahman (A.3) himself before agreein_g to advance the loan. After a few days, Fazlur Rahman (A.3), Kochi Mia (A.2) and the appellant went to the place of business of the complainant to meet him. A friend of the com- plainant by name Mangtulal Bagaria Was also present at that time with the complainant. The three accused represented to the complainant that Cal- cutta Cafe was free from all encumbrances and that the money could be D advanced against hypothecation. Both the complainant and his friend Mangtulal Bagaria agreed to advance Rs. 30,000 to Fazlur Rahman. On the next date, a deed of hypothecation was drafted and executed in the office of Mr. G. Bagaria (PW.4) between the parties. In the deed of hypotheca- tion, it was stated that the business in question was free from all encwnbran- E F ces and charges etc. The deed of hypothecation was signed by Fazlur Rahman (A.3). On the basis of the specific representation made orally end in the deed, the complainant and Mangtulal Bagaria advanced a sum of Rs. 30,000 to Fazlur Rahman (A.3). The amount was advanced against six hundies. Fazlur Rahman (A.3) also executed a general irrevocable power of attorney in favour of the complainant and Mangtulal Bagaria authorising them to take charge to the management of the Calcutta Cafe in case of default of payment as agreed to in the deed of hypothecation. Sol!le payments were subsequently made towards repayment of the loan by Fazlur Rahman (A.3) to the complainant and Mangtulal Bagaria but after 28th November, 1966 admittedly no payments were made. On an enquiry made by the complainant, it transpired that the representation made by Fazlur G Rahman (A.3), Kochi Mia (A.2) and the appellant was false because the property in question was an encumbered property and in a suit filed in the Calcutta High Court, Joint Receivers had been appointed regarding Cal- cutta Cafe. After recording the preliminary evidence all the three accused were sent up for trial. It transpires that no charge was framed against Kochi H Mia (A.2) whi
Excerpt shown. Read the full judgment & AI analysis in Lexace.