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IN THE COURT OF THE ADDL. CHIEF JUDICIAL

MAGISTRATE,

AT JORHAT

G.R. No. – 744 of 2017

U/S.: 420 of I.P.C.

S T A T E

-Versus-

Sri Deep Gogoi … accused person

Present: Smt. Pooja Sinha, AJS,

Addl. Chief Judicial Magistrate

Jorhat

Advocate appearing for the State : Sri Binan Ch. Borah,

Advocate appearing for the Accused: Sri Biswajit Nath,

U. Kakoti

Dates of recording evidence: 10.01.2019, 13.09.2019,

31.10.2019, 15.02.2020,

18.01.2021 & 20.09.2021

Date of hearing argument : 28.09.2021

Date of delivering Judgment : 29.09.2021

JUDGMENT

1. The case of the prosecution in brief is that, on

17.07.2016 at Tarajan Sonari Gaon, one Bina

Bordoloi entered into an agreement with Deep Gogoi

to lease out her Tata Magic vehicle bearing

registration No. AS-03-AC-6189 at Rs. 9,000/-

(Rupees nine thousand) per month. However, till

14.03.2017 though Deep Gogoi took her Tata Magic

vehicle, did not pay Rs. 9,000/- (Rupees nine

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thousand) per month as agreed upon. Further, he

refused to return her vehicle.

2. In this regard, informant Smti. Bina Bordoloi filed an

ejahar on 14.03.2017. The Officer In-charge Pulibor

police station registered a case as Pulibor P.S. Case

No. 89 of 2017 under section 406 of I.P.C. The police

conducted investigation and thereafter submitted

charge-sheet against the accused person Sri

Deep Gogoi for trial under sections 406/420 of

I.P.C.

3. In due course, the accused person entered

appearance. He was furnished with the copies as

required under section 207 Cr.P.C. Formal charge

under section 420 of I.P.C framed against the

accused person by my learned Predecessor-in-office.

The particulars of the offense was read over and

explained to the accused person, to which he

pleaded not guilty and claimed to be tried.

4. In support of the case, the prosecution examined

seven (7) witnesses. The statement U/S 313 of

Cr.P.C. of the accused person is recorded. Defence

plea was of total denial. Defence opted not to adduce

evidence.

5. Point for determination :

I. Whether the accused person on

17.07.2016 at Tarajan Sonari Gaon,

dishonestly induced Smti. Bina Bordoloi

to enter into an agreement to deliver Tata

Magic Vehicle bearing registration No.

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AS-03-AC-6189 on lease on condition of

payment of Rs. 9,000/- (Rupees nine

thousand) per month, but did not make

any payment as agreed upon and thereby

committed an offence under section 420

of I.P.C?

6. Discussion, Decision and Reasons thereof: - I

have heard the learned Counsel appearing for both

sides. Upon perusal of the records, I am of the

considered opinion to hold the following :-

7. Point of Determination:

P.W.1- Smti. Bina Bordoloi is the informant of

the instant case. She in her examination-in-

chief deposed that she knows the accused Deep

Gogoi. That one Kanak Gogoi introduced Deep Gogoi

as a driver to Bina Bordoloi. That, on 13.07.2016 she

entered into an agreement with accused Deep Gogoi

that at Rs. 9,000/- (Rupees nine thousand) per

month she leased out her Magic vehicle. That, for

one year accused did not pay her as per agreement.

That, with the help of police she along with her son

Abhilash Bordoloi went to accused person’s home

and found her vehicle in dilapidated condition.

Thereafter, she lodged ejahar. That, police seized the

vehicle and she was handed over zimma of the

vehicle. She exhibited the ejahar as Ext. 1 and

identified her signature thereon. She exhibited the

seizure list as Ext. 2 and identified her signature

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thereon. She exhibited the zimmanama as Ext. 3 and

identified her signature thereon.

8. During cross-examination she stated that she

discussed with Kanak Gogoi and her husband with

regard to the vehicle. She denied that she did not

enter into any agreement with accused Deep Gogoi.

Denied that police did not seize any agreement from

her possession. Denied that accused Deep Gogoi did

not take over vehicle from her on agreement. That,

after institution of case she did not met Kanak Gogoi.

Denied that Kanak Gogoi appointed accused for

driving the vehicle only on the date of agreement.

Denied that accused Deep Gogoi has not cheated her

as she alleged. That, Ext. 4 contains terms and

condition for taking zimma of the vehicle. Ext. 4 is

valid for three (3) years since 13.07.2016. Ext. 4

does not contain the route for plying the vehicle.

That, she issued notice to accused through advocate

asking to pay Rs. 54,000/- (Rupees fifty four

thousand) @ 20% interest within 15 (fifteen) days.

That, accused had violated agreement. Denied that

she did not state before I.O. that accused paid rent

for first two months. That, police took documents of

the vehicle from her. That, on the date of recovery,

police handed over the vehicle to her. That, repairing

estimate of the vehicle was prepared at Gargo Motors

in her presence and she submitted it to police. That,

she lodged ejahar for violation of agreement. Denied

that, she lodged false ejahar against the accused

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person. That, she does not know whether she asked

accused through advocate’s notice to return her the

vehicle.

9. P.W.2- Sri Abhilash Bordoloi in his

examination-in-chief deposed that he knows

both informant and accused person. That, on

13.07.2016 accused took a Tata Magic vehicle on

lease from informant on execution of an agreement

in his presence. That, accused was supposed to pay

informant at the rate of Rs. 9,000/- (Rupees nine

thousand) per month. That, an amount was paid by

accused to informant for the first month. That, as

accused did not pay informant as per the agreement

she approached police. That, accused caused

damage to informant’s vehicle and later the vehicle

was carried by informant using crane.

10. During cross-examination he stated that

informant is his mother. That, he is unaware of

contents of the agreement. That, accused person did

not talk with informant regarding lease. But accused

person’s elder brother talked with the informant on

the issue. That, police did not ask him about this

case. Denied that, he deposed falsely in favour of his

mother.

11. P.W.3- Sri Prashanta Bordoloi in his

examination-in-chief deposed that he knows

both informant and accused person. That, accused

took informant’s Tata Magic vehicle on lease on

execution of an agreement. That, accused was

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supposed to pay informant. That, as accused did not

pay informant as per the agreement, she approached

police. That, accused caused damage to informant’s

vehicle and the vehicle was carried by informant

using crane.

12. During cross-examination he stated that

informant told him about the incident and as per her

information, she deposed in court. That, he does not

have any personal knowledge regarding transaction

between informant and accused.

13. P.W.4- Smti. Gunada Gogoi in her

examination-in-chief deposed that accused

person is his son. That, Deep Gogoi on rental basis

drove a Magic Vehicle. That, the said vehicle was

seized by police from their residence. That, police

took her signature on seizure list. She exhibited the

seizure list as Ext. 2 and identified her signature

thereon. That, he has no knowledge as to whom the

magic vehicle belonged. That, he drove the vehicle

which belong to Bina Bordoloi. However, as he fell

sick hence, she took away her vehicle.

14. During cross-examination she stated that he

has no knowledge what is written in Ext. 2. That,

police took away the vehicle from their house.

15. P.W.5- Sri Singh Gogoi in his examination-in-

chief deposed that he does not know Bina

Bordoloi. That, he is acquainted with the accused

person who is his neighbor. That, accused used to

drive a magic vehicle. That, about two years back

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while he went to the house of the accused person,

police took his signature in Ext. 2, seizure list and he

identified his signature thereon.

16. During cross-examination he stated that he has

no knowledge why his signature was taken.

17. P.W.6- Sri Anjit Bordoloi in his examination-in-

chief deposed that he is the husband of the

informant. That, he recognizes the accused person.

That, accused used to drive the Magic vehicle which

belonged to his wife. As per written agreement,

accused in the year 2016, agreed to drive their magic

vehicle at Rs. 300/- (Rupees three hundred) on daily

basis to be paid to the informant. But, accused did

not pay a single rupee as per the agreement. That,

they used to communicate with Kanak Gogoi for the

rental, but the accused did not maintain any

communication with them. Subsequently, his wife

filed a case and with the aid of Sivasagar police the

vehicle was recovered from the house of the accused

person. That, the magic vehicle was found in a

damage condition. He has no further knowledge.

18. During cross-examination, he stated that he

was not present when they entered upon an

agreement. Police did not interrogate him. That, he

has no knowledge what was written in the

agreement. Denied that he has deposed falsely in his

evidence-in-chief. That, he did not accompany the

police during recovery of the vehicle.

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19. P.W.7- Md. Samsuddin is the Investigating

Officer. He in his examination-in-chief deposed

that on 14.03.2017 Smti. Bina Bordoloi lodged an

ejahar. That, S.I. Hrishikesh Hazarika endorsed S.I.

Panchanan Gogoi for investigating the case. That,

Panchanan Gogoi recorded statement of witnesses.

That, after transfer of Panchanan Gogoi on

10.05.2017, P.W. 7 took up investigation of the case.

That, he visited the place of occurrence, drew sketch

map of place of occurrence and recorded statements

of witnesses. He exhibited the sketch map as Ext. 6

and identified his signature thereon. That, he seized

a Tata Magic vehicle bearing registration No. AS 03-

AC-6189 from the house of the accused. That, he

exhibited the seizure list as Ext. 4 and identified his

signature thereon. That, he handed over zimma of

the vehicle to informant. That, he collected cost of

repairing slip from the Manager, Gargo Motors and

exhibited the same as Ext. 2. That, he seized

repairing voucher of Rs. 74,542/- (Rupees seventy

four thousand five hundred and forty two). That, on

completion of investigation, he filed charge sheet

under section 406/420 of IPC against the accused

person. That, he exhibited the charge sheet as Ext. 5

and identified his signature thereon.

20. During cross-examination, he stated that he did

not record statement of Kanak Gogoi. That, P.W.1,

Bina Bordoloi stated him that accused paid two

instalments for the first two months. That, he did not

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seize any agreement. Denied that he did not

investigate the case properly.

21. In the light of the above testimonies and on

perusal of the materials on record, the

following facts are observed:

I. That, to prove and offence under section

420 of IPC the first requirement is to

ascertain whether the accused cheated the

informant? Now, to prove this point

informant testified that she entered into an

agreement with the accused after having a

discussion with Kanak Gogoi that, she will

lease out her Tata Magic vehicle to the

accused Deep Gogoi at Rs. 9,000/-

(Rupees nine thousand) per month. That,

the said fact is corroborated by P.W.2-

Abhilash Bordoloi.

II. P.W.1 stated that, a written agreement

was made in this respect which she

exhibited as Ext. 4. Now, perusal of the

said exhibit reveals that the Tata Magic

vehicle was given on lease for a period of

three (3) years at the rate of Rs. 9,000/-

(Rupees nine thousand) per month which

will be paid by the accused to the

informant by the 15th day of every month.

The said exhibit– 4 is denied by the

accused. Neither the Notary- Indrani

Chetia nor the Advocate Mrityunjoy Duarah

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have come forward to identify the

signature of the accused in the said

agreement who have put their signature in

Ext. 4. Thus, the signature of the accused

in the said agreement is not proved by the

prosecution side as required in law as

prescribed under section 67 of the Indian

Evidence Act, 1872. Furthermore, P.W.2 in

his evidence stated that accused has made

payment of Rs. 9,000/- for the first month

and the fact is himself admitted by accused

that he made payment of total Rs.

18,000/- for two months to the informant

in his statement under section 313 of

Cr.P.C.

III. The informant herself however has denied

any payment made by the accused. Now,

to prove the point of cheating there has to

be inducement made by the accused to the

informant to handover/delivery of the

vehicle to him. However, from the evidence

on record it becomes clear that it is

informant who after having a discussion

with a person named Kanak Gogoi called

the accused to enter into the agreement.

But, in the instant case Kanak Gogoi who

played vital role amongst the parties to

enter into an agreement was not brought

forwarded as prosecution witness. His

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evidence was required in order to prove

the fact that there was any kind of

inducement made by the accused to the

informant in order to deliver the magic

vehicle.

IV. Furthermore, P.W.6 who is the husband of

the informant have testified inconsistently

with respect to the conditions of

agreement stating that at Rs. 300/-

(Rupees three hundred) on daily basis the

informant leased out her Magic vehicle to

the accused person. Thus, the facts put

forward by the informant are inconsistent

with the evidence put forward by the other

P.Ws.

V. P.W.7 i.e. I.O. of the case testified that he

seized the Magic vehicle bearing

registration No. AS-03-AC-6189 from the

house of the accused at Sivasagar which

belonged to the informant. P.W.4, P.W.5

are the father and neighbour of the

accused respectively who admitted of

having put their signature in the seizure

list while the Magic vehicle was seized.

However they are unaware of the contents

of Ext. 2.

VI. Now, the second requirement in order to

prove an offence under section 420 of IPC

is whether the property in question is to be

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altered, destroyed or any part to be

changed to a valuable security? Now, in

the instant case the vehicle was lying in a

dilapidated state at the house of the

accused which is admitted by the

informant herself as well as P.W.2 and

P.W.3. Hence, the property was neither

altered or destroyed in whole or any part

which was changed to a valuable security

and was enjoyed by the accused. Hence, it

cannot be ascertained if the intention of

the accused was dishonest nor it is proved

from the evidence on record that he has

cheated informant Bina Bordoloi to deliver

Tata Magic vehicle to him for his own use

or any other gain.

VII. Thus, after analysing the above it is found

that the points requiring to prove an

offence under section 420 of IPC stand not

proved against the accused Deep Gogoi.

22. Considering the above, I hold that prosecution has

failed to prove the guilt of the accused person

beyond all reasonable doubt that accused person on

17.07.2016 at Tarajan Sonari Gaon, dishonestly

induced Smti. Bina Bordoloi to enter into an

agreement to deliver Tata Magic Vehicle bearing

registration No. AS-03-AC-6189 on lease on condition

of payment of Rs. 9,000/- (Rupees nine thousand)

per month, but did not make any payment as agreed

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upon and thereby committed an offence under

section 420 of I.P.C.

23. In the result, the accused person Sri Deep

Gogoi is hereby acquitted on benefit of doubt

under section 420 of I.P.C. and set at liberty

forthwith.

24. Seized articles if any to be disposed of in accordance

with law.

25. Bail bond furnished is hereby extended for a period

of 6 (six) months.

26. The case is disposed of on contest.

Given under my hand and seal of this court on

this the 29th day of September, 2021 at Jorhat.

(Pooja Sinha)

Addl. Chief Judicial Magistrate

Jorhat

Dictated and corrected by me

(Pooja Sinha)

Addl. Chief Judicial Magistrate

Jorhat

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APPENDIX

Prosecution Witness-

P.W.1- Smti. Bina Bordoloi

P.W.2- Sri Abhilash Bordoloi

P.W.3- Sri Prashanta Bordoloi

P.W.4- Smti. Gunada Gogoi

P.W.5- Sri Singh Gogoi

P.W.6- Sri Anjit Bordoloi

P.W.7- Md. Samsuddin

Defence Witness-

Nil

Prosecution Side Exhibits-

Ext.1- Ejahar,

Ext.2- Seizure list,

Ext.3- Zimmanama

Ext.4- Affidavit

Ext.5- Charge sheet

Ext.6- Sketch map

Ext.7- seizure list

Defence Side Exhibits-

Nil

(Pooja Sinha) Addl. Chief Judicial Magistrate

Jorhat