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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
2
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
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