Calcutta High Court (Appellete Side)
Adhishekhar Biswas vs The State Of West Bengal on 16 June, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Prasenjit Biswas
CRA 708 Of 2015
Adhishekhar Biswas
-Versus-
The State of West Bengal
For the Appellant : Mr. Saswata Gopal Mukherjee, Sr. Adv.
Mr. Kallol Kumar Basu,
Mr. Jamat Ul Firdous.
For the State : Ms. Sreyashee Biswas
Hearing concluded on : 13.06.2025
Delivered on : 16.06.2025
Prasenjit Biswas, J:-
1.
The impugned judgment and order of conviction dated 22.09.2015 passed
by the learned Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas
passed in connection with Sessions Case No. 22(12) of 2012, Sessions Trial No.
2(2) of 2014 is assailed in this appeal.
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2. By the impugned judgment and order this appellant is found guilty for
commission of offence punishable under Section 420 of the Indian Penal Code and
sentenced him to suffer a simple imprisonment for 3 years and to pay a fine of Rs.
1,00,000/- (Rupees one lakh) and in default of payment to suffer further simple
imprisonment for another one year.
3. Being aggrieved and dissatisfied with the said impugned judgment and
order of conviction passed by the learned Trial Court the present appeal is
preferred at the behest of the appellant.
4. In short campus the case of the prosecution is delineated hereunder:-
“The victim lodged a complaint before the Barasat police station
stating that he had love affairs with this accused since 1997. The accused
Adhisekhar Biswas had sexual intercourse with the victim promising to
marry her and as a result she became pregnant but the accused Adhisekhar
compelled her to undergo an abortion of her pregnancy. Thereafter the
accused again had sexual intercourse with the victim and took money from
her and her family memebers on several occasions but subsequently, he did
not marry to this victim. The victim came to know that the accused
Adhisekhar is married having his wife at Bangladesh.”
5. On the basis of the complaint made by the victim the case was started by
the concerned police station being Barasat P.S. Case No.499 dt.09.03.2010 u/s
417/376/313/509 of I.P.C. After completion of investigation charge sheet was
submitted by the prosecuting agency for committing offence punishable u/s
376/417/313/509 of I.P.C. against this accused person along with other accused
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person who was acquitted by the impugned order passed by the learned Trial
Court.
6. The charge was framed by the Trial Court against this appellant under
Sections 417/420/313 of the Indian Penal Code. The charge was framed by the
Trial Court under Section 509 of the Indian Penal Code against the accused
Bhudeb Biswas u/s 509 of I.P.C. who was also acquitted from this case.
7. In this case nine witnesses were examined by the side of the prosecution.
Documents were marked as exhibits on behalf of the prosecution. Neither any oral
nor any documentary evidences were adduced on behalf of the defence.
8. Mr. Saswata Gopal Mukherjee, learned Advocate appearing on behalf of the
appellant submitted before this Court interalia that the learned Trial Court had
miserably failed to appreciate the evidences brought on record by the side of the
prosecution. It is said that the present appellant was acquitted from all the
charges framed by the Trial Court but he was found guilty for commission of
offence punishable under Section 420 of the Indian Penal Code and was sentenced
for commission of that offence under that section. Mr. Mukherjee further assailed
that there are no ingredients of offence under Section 420 of the IPC in this case
for which this appellant may be convicted. Only on the lone statement made by
the victim that Adhisekhar Biswas (accused) took money from her and from her
family members he was convicted. There is no corroborative evidence to that
statement of this witness. No document was seized by the investigating officer
regarding any transaction between this appellant and the victim. Moreover,
Section 420 of IPC relates to property but in this case nothing has been stated by
the witnesses that this appellant cheated the victim or induced her dishonestly to
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deliver any property or anything which is signed or sealed, and which is capable of
being converted into a valuable security. So, it is said that the investigation was
doubtful and on the basis of such investigation and the evidences brought on
record by the prosecution this appellant ought not to have been convicted. The
attention of this Court is drawn by the learned Advocate regarding statement of
PW 5 wherein she admitted that this appellant married her and they were residing
in a rented house at Sasida, at Roy villa, Subashpally, Mdhyamgram. It is further
contended by the learned Advocate that if the entire impugned judgement is
scanned meticulously, it would be evident that the prosecution case against this
appellant could not be proved beyond all reasonable doubt. So, it is said that the
judgment and order of conviction passed by the learned Trial Court may be set
aside.
9. Per contra, Ms. Sreyashee Biswas learned Advocate for the State as her
usual fairness said that it is true that ingredients of offence under section 420 of
the Indian Penal Code is apparently absent in this case and no document in
respect of any property regarding any transaction between the victim and the
appellant was seized by the concerned I.O. and nothing has been stated to that
effect by any of the witnesses. So, it is prayed that appropriate order may be
passed in this case.
10. I have considered the rival submissions advanced by both the parties as well as
have gone through all the materials gathered in the record.
11. Section 420 of the IPC lays down the punishment for aggravated forms of
cheating where the offender dishonestly induces a person so deceived to deliver
any property or interfere with any valuable security. It is essential to prove that
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parting of the property is by virtue of dishonest inducement of the accused and
delivered property must be of some monetary value to the person who has been
cheated. So, in simple terms, if an individual deceives someone to obtain property
or manipulate important documents they can face imprisonment for up to seven
years in addition to a fine
12. PW1 Ratan Roy is the land lord under whom the victim was a tenant. This
witness is declared hostile by the prosecution and cross examined him but no
evidence regarding commission of offence under Section 420 is elicited from his
statement.
13. PW2 Mamata Chakraborty, PW3 Doly Mallick and PW4 Pradip Das (who
filled up the formal portion of FIR) stated nothing in this case for which the
prosecution may get support.
14. PW5 is the victim and star witness of the prosecution stated at the time of
giving evidence that this appellant took money from her and from her family
members. Save and except this statement she stated nothing regarding
commission of offence by the accused under Section 420 of IPC. This witness
admitted that this appellant married her and they were residing in a rented house.
This PW 5 has stated nothing regarding any transaction between her and the
appellant. The statement of this witness regarding taking money by this appellant
from her and her family members are not corroborated by any of the prosecution
witnesses.
15. PW6 Anjana Chakraborty who is the next door neighbor also stated nothing
against this accused regarding any transaction in respect of property between this
appellant and the victim.
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16. PW8 Ramananda Das Adhikari, S.I. of police who took up the investigation
at first but in his statement he stated nothing about seizure of any document
regarding transaction in respect of property between the appellant and the victim.
In fact no document was seized by this I.O. regarding the statement made by the
victim that this appellant took money from her and her family members.
17. PW9 Danesh Ali Dafadar, second I.O. of this case who after completion of
investigation submitted charge sheet against the accused persons.
18. The Trial Court convicted this appellant for committing offence under Section
420 IPC. The allegation of this victim/defacto complainant is that this appellant has
cheated her and took money from her and her family members. Under Section 420 of
IPC the prosecution has to prove that this appellant cheated the victim and thereby
dishonestly induced her to deliver any property or to make, alter or destroy the whole
or any part of a valuable security, or anything which is signed or sealed and which is
capable of being converted into a valuable security. So, while prosecuting a person for
the offence of cheating punishable under Section 420 of the Indian Penal Code it is to
be seen whether the deceitful act or cheating is coupled with an inducement leading to
the parting of any property by the complainant. To constitute an offence of cheating,
merely committing a deceitful act is not sufficient unless the deceitful act dishonestly
induced a person to deliver any property or any part of a valuable security, thereby
resulting in loss or damage to the person. If an individual deceives someone to obtain
property or manipulate important document they can face imprisonment for the
offence punishable under Section 420 of IPC. In this case nothing has come out that
this appellant deceived the victim to obtain property or manipulate important
documents. It is only said by the victim that this appellant took money from her and
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her family members and other prosecution witnesses did not corroborate her
statement. Moreover, no document relating to any transaction was seized by the
investigating officer during course of investigation.
19. At the time of examination of this appellant convict under Section 313 of CrPC
it is said that he knew the victim since the year 2006 when he used to work an
accountant in his house at Noapara, Barasat and he made an arrangement for a loan
in the name of victim of Rs.3.5 lakh from the bank and he himself and his brother
were the guarantor against the said loan. At the time of examination this appellant
further said that he married the victim in the year 2010 but the victim asked him to
reside in her father’s house as ‘ghar jamai’ and as he refused to do so for which victim
falsely filed this case against him and his brother. So, it would appear from the
statement made by the accused for which reason the victim impleaded this accused in
this case. This examination under section 313 Cr.P.C enabled the accused
personally to explain the circumstances appearing in the evidence made by PW5
against him. I have already said that in order to prove the case of the prosecution
for the offence of cheating punishable under section 420 IPC, it has to be proved
that the accused had fraudulently or dishonestly induced the complainant and by
such inducement the complainant was deceived and she delivered some property
to the accused.
20. Recently the Supreme Court in case of Mariam Fasihuddin & Anr. versus
State by Adugodi Police Station & Anr. reported in 2024 Live Law (SC) 53 held
that while prosecuting a person for the offence of cheating punishable under
Section 420 of the Indian Penal Code, it is to be seen whether the deceitful act of
cheating was coupled with an inducement leading to the parting of any property
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by the complainant. The court discussed the contours of the offence of ‘cheating’.
In the said report it is noted that in order to attract the provision of Sec. 420 IPC,
the prosecution has to not only prove the act of cheating but it needs to be also
proved that the act of cheating resulted into an inducement to deliver the property
resulting in to a loss or destruction of property to the person who have been
induced to deliver such property.
21. In Mariam Fasihuddin (supra) the Hon’ble Apex Court held interalia that-
“It is thus paramount that in order to attract the provisions of Section
420 IPC, the prosecution has to not only prove that the accused has cheated
someone but also that by doing so, he has dishonestly induced the person
who is cheated to deliver property. There are, thus, three components of this
offence, i.e., (i) the deception of any person, (ii) fraudulently or dishonestly
inducing that person to deliver any property to any person, and (iii) mens
rea or dishonest intention of the accused at the time of making the
inducement.”
22. In the above report the Hon’ble Apex Court observed that in order to invoke
Section 420 of the Indian Penal Code, the prosecution must not only prove
the act of cheating but has to also prove cheating induced the person to
surrender the property in question.
23. In view of above facts and circumstances and discussion made above I am of
the opinion that the learned Trial Court committed error and illegality in
passing the impugned judgment and order of conviction against this
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appellant. Accordingly, the impugned judgment and order of conviction
dated 22.09.2015 is liable to be set aside.
24. The impugned judgment and order of conviction passed by the learned Trial
Court dated 22.09.2015 in connection with Sessions Case No. 22(12) of
2012, Sessions Trial No. 2(2) of 2014 is hereby by set aside.
25. The appellant is on bail. He is to be discharged from the bail bonds and be
set at liberty if he is not wanted in connection with any other case.
26. Accordingly, the criminal appeal being no. CRA 708 of 2015 is hereby
allowed.
27. Let a copy of this order along with TCR be sent down to the learned Trial
Court immediately.
28. Urgent Photostat Certified Copy of this order, if applied for be given to the
parties on payment of requisite fees.
(Prasenjit Biswas, J.)