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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 226 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 227 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. 228