# Panna Lal Sharma v. State of U.P. & Anr. Oposite Parties

- **Citation:** (2020) 1 ILRA 544
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-16
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/panna-lal-sharma-v-state-of-u-p-anr-oposite-parties-45220
- **Pages:** 4

## Headnote

Under Transfer of Property Act, there is a
principle of buyer beware. Meaning thereby,
there is a legitimate expectancy about conduct
of buyer. He too is expected to make inquiry
from public office about the ownership of
property going to be purchased or going to be
transacted and if buyer is not aware, he cannot
say the same to be an offence unless that
comes within definition of deception. (Para 8)

B. Code of Criminal Procedure, 1973 -
Section 378(4) & Indian Penal Code,1860
- Section 420 -application-grant of leave
to
file
appeal-rejection-no
wilful
deception
could
be
proved
by
prosecution-communication
of
cancellation of transfer deed by public
auction before alleged transfer made by
accused could not be proved. (Para 7 & 9)

In present case, no wilful deception could be
proved by prosecution because complainant
himself was not sure as to whether Rewati
Prasad was aware of this cancellation of
transfer of public property or not. His public
witness too was not sure. Rewati Prasad was in
possession over plot in question and he
executed the same through registered sale
deed. (Para 7)

Application U/S 378 Cr. P.C. dismissed.
(E-6)

List
of
cases
cited:-
1 All. Panna Lal Sharma Vs. State of U.P. & Anr.
545

## Text

544 INDIAN LAW REPORTS ALLAHABAD SERIES
performance of his official duty, has got
some act done, under conspiracy, then, that
is an act or offence, committed by a public
servant, in performance of his official duty
and for taking cognizance, for such
offence,
sanction
of
the
competent
authority, under Section 197 of Cr.P.C., is
to be taken, but, no such recital is there as
to whether any sanction of competent
authority was taken for taking cognizance
against Area Lekhpal, Naqi Raza Khan or
not.

11. Hence, under all above facts and
circumstances, it is apparent that both of
the courts below failed to appreciate facts
and law and passed impugned orders,
without there being any basis and as such
both the impugned orders are being set
aside and matter is being remanded back
to the court of Magistrate, where, he will
hear
complainant
and
will
pass
summoning order, if any, afresh, after
taking into consideration the materials
placed before him and after making an
enquiry, and also taking into consideration
of relevant Khataunis, for the year
concerned, for specifying as to whether
mutation was there or not and if it was
there and it is found to be, under any
conspiracy, then sanction, under Section
197 of Cr.P.C., is there or not against Area
Lekhpal, Naqi Raza Khan and the
procedure, as per law, is to be adopted.

12. In view of observations made
above, this Application stands disposed of
accordingly.
----------
(2020)1ILR 544

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 378 Cr. P.C.No. 69 of 2002

Panna Lal Sharma ...Appellant
Versus
State of U.P. & Anr. ...Oposite Parties

Counsel for the Appellant:
Sri Sudhir Dixit

Counsel for the Oposite Parties:
A.G.A., Sri S.P.S. Chuhan, Smt. Meenakshi
Chauhan

A. Maxim- Buyer Beware

Under Transfer of Property Act, there is a
principle of buyer beware. Meaning thereby,
there is a legitimate expectancy about conduct
of buyer. He too is expected to make inquiry
from public office about the ownership of
property going to be purchased or going to be
transacted and if buyer is not aware, he cannot
say the same to be an offence unless that
comes within definition of deception. (Para 8)

B. Code of Criminal Procedure, 1973 -
Section 378(4) & Indian Penal Code,1860
- Section 420 -application-grant of leave
to
file
appeal-rejection-no
wilful
deception
could
be
proved
by
prosecution-communication
of
cancellation of transfer deed by public
auction before alleged transfer made by
accused could not be proved. (Para 7 & 9)

In present case, no wilful deception could be
proved by prosecution because complainant
himself was not sure as to whether Rewati
Prasad was aware of this cancellation of
transfer of public property or not. His public
witness too was not sure. Rewati Prasad was in
possession over plot in question and he
executed the same through registered sale
deed. (Para 7)

Application U/S 378 Cr. P.C. dismissed.
(E-6)

List
of
cases
cited:-
1 All. Panna Lal Sharma Vs. State of U.P. & Anr.
545
1. Banwarilal v. State, AIR 1956 All 341

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This application under Section
378(4) Cr.P.C. has been moved by Panna
Lal Sharma with a prayer for grant of
leave to file appeal against judgment of
acquittal dated 02.11.2002, passed by IXth
Additional
Chief
Judicial
Magistrate,
Aligarh in Complaint Case No. 1996 of
2002 (Panna Lal Sharma Vs. Rewati
Prasad), under Section 420 I.P.C., Police
Station Tappal, District Aligarh, whereby
Rewati Prasad has been acquitted from the
charge
of
offence
punishable
under
Section 420 I.P.C.

2. Learned counsel for applicant
argued that it was a complaint case filed
against Rewati Prasad by Panna Lal
Sharma, wherein he was summoned for
offence punishable under Section 420
I.P.C. A sale deed was got executed by
Rewati Prasad for plot no. 75 on
17.02.1993. This plot was obtained in a
public auction from Sales Tax Department
by Rewati Prasad and subsequently this
public
auction
was
cancelled
by
department
concerned,
of
which
information was communicated to Rewati
Prasad on 28.07.1992. Even after being
informed about ownership of plot no. 75,
Rewati Prasad executed sale deed for same
plot in favour of complainant for a
consideration of Rs.8,500/-, which was not
under his ownership. It was a deceit with
complainant Panna Lal Sharma, hence
above complaint was filed, in which
summoning was there. This fact was
proved by complainant's witness PW-1
and PW-2 by their testimony recorded
under Section 444 and 446 Cr.P.C., but
trial Court failed to appreciate facts and
law placed before it, thereby passed
impugned judgment of acquittal, which
was result of perversity. Hence, this appeal
with a prayer for grant of leave.

3. Learned A.G.A. argued that
judgment was in accordance with evidence
on record.

4. The admitted fact was that Rewati
Prasad was owner in possession of plot no.
75, purchased by public auction from
Sales Tax Department in the year 1992.
This plot was sold to Panna Lal Sharma on
17.02.1993 by registered sale deed. Panna
Lal Sharma being examined as PW-1
admitted that he got possession over above
plot and it was got constructed by him.
The testimony under Section 244 Cr.P.C.
as of Panna Lal Sharma is of this fact that
he is not personally aware as to whether
communication regarding cancellation of
transfer of plot by department concerned
was made to Rewati Prasad or not. Rather,
it came to his notice after making inquiry
at Sales Tax Department in the year 1996.

5. The only question which was basis
for judgment of acquittal was that neither
Panna Lal Sharma nor his witness nor
public witness examined as PW-3 was in
position to prove that this communication
of cancellation of transfer of plot in public
auction was made to Rewati Prasad or not
and on the basis of this fact this judgment
of
acquittal
was
passed.
Moreso,
admittedly Rewati Prasad was owner in
possession of plot in question. He had
made construction over it. He executed
deed of transfer by registered sale deed.
The transferee complainant got possession
over it. He occupied the same and raised
construction. It was never protested by
anyone. Subsequently, upon inquiry it
came to notice that in public office above
546 INDIAN LAW REPORTS ALLAHABAD SERIES
deed of public auction was cancelled by
department concerned. He was not aware
about communication of this cancellation
order to Rewati Prasad, then under how
and
under
what
circumstances,
this
inference can be drawn that it was under
willful deceit by Rewati Prasad. The
public witness could also not explain as to
whether communication was made to
Rewati Prasad or not.

6. For an offence punishable under
Section
420
I.P.C.,
the
essential
ingredients is that "Whoever, by deceiving
any person, fraudulently or dishonestly
induces the person so deceived to deliver
any property to any person, or to consent
that any person shall retain any property,
or intentionally induces the person so
deceived to do or omit to do anything
which he would not do or omit if he were
not so deceived, and which act or omission
causes or is likely to cause damage or
harm to that person in body, mind,
reputation or property, is said to "cheat"

Explanation-A
dishonest
concealment of facts is a deception with
the meaning of this section."

7. In present case, no willful
deception could be proved by prosecution
because complainant himself was not sure
as to whether Rewati Prasad was aware of
this cancellation of transfer of public
property or not. His public witness too was
not sure. Rewati Prasad was in possession
over plot in question and he executed the
same through registered sale deed.

8. Under Transfer of Property Act,
there is a principle of buyer beware.
Meaning thereby, there is a legitimate
expectancy about conduct of buyer. He too
is expected to make inquiry from public
office about the ownership of property
going to be purchased or going to be
transacted and if buyer is not aware, he
cannot say the same to be an offence
unless that comes within definition of
deception.

9. The word 'dishonest' in this
explanation to Section 415 is significant.
Not all concealment of material facts but a
dishonest concealment of an important fact
amounts to deception. No concealment is
dishonest within the section unless the
person concealing it is legally bound to
disclose it. Defects in title being defects in
the property under Section 55(1)(a) of the
T.P. Act, there is no duty on the seller to
disclose them unless the buyer could not
with ordinary care finds them out.
Therefore omission to disclose by the
seller that there is a defect in title which
defect buyer can with ordinary care
discover does not mount to cheating.
There is a difference between mere
concealment or non-disclosure and a false
representation, and while there is no legal
duty placed upon the vendor of immovable
property to disclose any charge or
encumbrance, yet, if a false representation
is made and acted upon, and as a result,
money passes, then though the false
representation
relates
to
immovable
property, the offence of cheating may have
been committed, but Allahabad High
Court in Banwarilal v. State, AIR 1956
All 341 has propounded that vendor is to
disclose previous mortgage if any, but in
present
case
the
communication
of
cancellation of transfer deed by public
auction before alleged transfer made by
accused Rewati Prasad could not be
proved by prosecution. Hence, learned
trial Magistrate by cogent and appropriate
appreciation of facts and evidence on
record came to conclusion of passing of
1 All. Brijesh Kumar Vs. State of U.P. & Ors.
547
judgment of acquittal. There is no
perversity, illegality and irregularity in the
impugned judgment. There is no ground
for grant of leave to appeal.

10. Accordingly, application to grant
leave for filing appeal, being devoid of
merits, stands rejected.
----------
(2020)1ILR 547

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 13 of 2020

Brijesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Satpal

Counsel for the Respondents:
C.S.C.

A. U.P. Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974 -Impugned order-rejectingapplication
for
compassionate
appointment-on the ground of-petitioner
nominated in FIR-in an offence-involving
moral turpitude-in the absence of charge
sheet-this premise-illegal & non-tenablepresumption of innocence-not to be
displaced-rejection
based
on
future
happening-flawed.

B. Held, In the considered opinion of this
Court, therefore, the premise on which
the Superintendent of Police, Deoria has
proceeded to decline the petitioner's
claim for compassionate appointment, is
legally not tenable. The petitioner's claim
has to be judged at the time when it is
made and the circumstances of the
petitioner on that day. It cannot be
judged with reference to a conjecture
about a mere future happening as
indicated in the order of this Court dated
06.01.2020.
Moreover,
the
impugned
order also shows that the Superintendent
of Police has taken into consideration an
opinion
of
the
District
Government
Counsel
(Criminal),
Gorakhpur
dated
06.09.2019. A legal opinion may be
sought by any person in matters legal,
who is himself not trained in law or still if
he
desires
better
opinion.
But
an
authority charged with jurisdiction to
decide upon civil rights of parties has to
do so upon an independent application of
mind to the facts and evidence on record.
He cannot take into consideration, while
exercising
his
jurisdiction
to
decide
valuable rights of parties, such as the
right to appointment on compassionate
basis under the Rules, a legal opinion; if
he does, it would be extraneous and
irrelevant material. For this reason, also,
the impugned order passed by the
Superintendent of Police, Deoria, is found
to be flawed.

Writ Petition allowed. (E-8)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against an order dated 11.11.2019 passed
by the Superintendent of Police, Deoria
whereby the petitioner's application for
compassionate appointment made under
the U.P. Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974, (for short, 'the Rules') has
been rejected.

2. When this matter came up first on
6th January, 2020 the following order was
made:

"The petitioner's application for
compassionate appointment under the
U.P. Dying in Harness Rules, 1974 have