Full Judgment Text
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PETITIONER:
GEORGE ZACHARIG @ RAJU KARUVAMPLAKKA
Vs.
RESPONDENT:
T.K VARGHESE & ANOTHER
DATE OF JUDGMENT25/10/1994
BENCH:
REDDY, K. JAYACHANDRA (J)
BENCH:
REDDY, K. JAYACHANDRA (J)
PUNCHHI, M.M.
CITATION:
1995 SCC Supl. (1) 267 JT 1995 (1) 225
1994 SCALE (4)694
ACT:
HEADNOTE:
JUDGMENT:
1. The appellant George Zacharia @ Raju Karuvamplakka was
tried alongwith two others for offences punishable under
Sections 419 and 420 read with 34 I.P.C. The case arose on
the basis of a private complaint laid by the respondent.
The trial court acquitted them. The respondent-complaint
filed an appeal before the High Court and the learned single
Judge of the High Court held that the appellant committed
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the offences punishable under Sections 419 and 420 I.P.C.
and sentenced him to undergo one year’s R.1. under each
count. The rest of the judgment of the trial court has been
confirmed. Hence the present appeal. The prosecution case
is as follows:
The appellant (original accused no.1) and. A-2 are direct
brothers. The name of A- 1 is George Zacharia but he was
also called by the pet name Raju. A-2 is Joseph Zacharia.
A-3, one Baby was known to the complainant and to the
accused. A-1 who was said to be a contractor, approached
the complainant through A-3 and requested for a loan of Rs.
25,000/-. The complainant is alleged to have recently sold
his hotel and had money. Ultimately an agreement was
entered into and the complainant gave the loan. In the
agreement it is mentioned that two registration certificates
of one motor-cycle and a lorry were entrusted with the
complainant as security. Later it was found that the lorry
does not belong to the appellant but belongs to his brother.
Therefore there was misrepresentation and cheating. The
trial court acquitted mainly holding that the case is of
civil nature. The High Court, on the other hand, held that
if evidence of P.W. 1, the complainant, is believed that is
enough to prove the guilt. The High Court also held that
with regard to lorry there was misrepresentation and the
evidence of P.W. 1, the complainant, even without cor-
roboration is sufficient to bring home the guilt.
2. Initially after hearing the learned counsel for a while
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finding prima facie that the matter is of civil nature, by
our order dated 31.8.94 we adjourned the matter enabling the
appellant to satisfy the decree passed against him by the
civil court in respect of this very amount. Now we are told
that a decree in fact has been passed and some properties
also are attached.
3. However, we will now consider the evidence on record
independently to find out whether a case has bee made out
against the appellant, under Sections 419 and, 420 I.P.C.
There is no dispute that ,the appellant alone executed the
agreement Ex.P. 1. The question is whether A-1 in any manner
induced the respondent to lend the money on the basis of a
misrepresentation. It is also not in dispute that the
payment of the cheque and the amount were only in favour of
the appellant. According to the complainant the appellant
impersonated himself as his brother Joseph Zacharia who is
the second accused and that the registration certificate of
the lorry was in name of A-2, Joseph Zacharia and that when
asked about the difference in the names in these two
registration certificates, the appellant represented that
Raju is his pet name and that his real name is Joseph
Zacharia. Ex. P. 2 and Ex. P. 3, the registration
certificates, accepted as security by the respondent which
were represented to, belong to one and the same person
namely the appellant. As to what happened and what
transpired at the time of execution of agreement, there is
no other evidence except that of the complainant. Even
assuming what the complaint says is correct, still the
question is whether in fact a case of cheating is made out.
To satisfy ourselves we have perused the agreement which is
not in dispute. It is executed by appellant alone and it is
mentioned in the agreement that as security the appellant
entrusted two registration certificates of a motor-cycle and
a lorry. Further it is stated
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that in case he fails to fulfill the agreement by paying up
the loan, the complainant has full right to take forceful
possession of the two vehicles. As an alternative security
land was also mentioned. The relevant portion of the
agreement reads as under:
"You have the full right to take forceful
possession of the above mentioned vehicles or
lawfully take possession of the three and a
half acres property which is in my name in Sy.
No. 385/1-184 and get back your loan with
interest."
Admittedly a civil suit was filed and a decree was obtained.
The execution proceedings were initiated in respect of the
above mentioned land also. In the agreement there is
nothing to show that the appellant in any manner asserted
that the ’lorry also belongs to him. The registration
certificate in respect of the lorry belonging to his brother
has also been given as security. It only indicates some
understanding between the appellant and his brother’ Viewed
from any angle, one cannot escape the conclusion that the
dispute is of civil nature and the ingredients of Sections
419 and 420 I.P.C. are not made, out. The view taken by the
trial court is quite reasonable and the High Court was not
right in interfering with the acquittal. Accordingly the
appeal is allowed.
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