1. This is an appeal against the Judgment of the learned Ninth Presidency Magistrate, Egmore, Madras, convicting the appellant of the offence Under Section 420, Indian Penal Code and sentencing him to undergo rigorous imprisonment for three months and to pay a fine of Rs. 300 and in default to undergo rigorous imprisonment for two months. The learned Magistrate also directed that the sum of Rs. 100 be paid to the complainant as compensation out of the fine. The case of the prosecution was that the accused, Murugan offered to the complainant, Ethirajammal for sale of building in door No. 5, Chunnambukalavai Street, Aminjikarai, that the price of the same was fixed at Rs. 19,500 and that though the accused disclosed to the complainant the fact that the property was subject to two prior mortgages, he failed to disclose an attachment of the property which is alleged to have been subsisting on the date of the sale. The suppression of the fact of attachment is, according to the prosecution, fraudulent and is in fact the basis for the conviction of the appellant of the offence of cheating. It is surprising that the prosecution has made no attempt to prove that on the date of the sale, i.e., 10th July, 1967, any attachment of the property was in force. It is said that a Marwadi had obtained a decree against the appellant and in E.P. No. 581 of 1968 attached the property of the appellant in execution. In support of this allegation, Exhibit P-2 a copy of the sale proclamation, has been produced. Exhibit P-2 shows that it was issued on the 20th of December, 1969, whereas the sale effected by the appellant preceded Exhibit P-2 by two years. There is nothing in the sale proclamation to show if and when the attachment of the property was effected by the decree-holder. One would expect the prosecution to have produced the order of the Court directing attachment and the endorsement of the bailiff effecting attachment of the property in pursuance thereof. Where unimpeachable documentary evidence is available to prove the date and factum of the attachment, the prosecution has failed to produce the same and has chosen to rely entirely upon the sale proclamation, which has come into being two years after the date of the appellant's sale and which makes no mention of the alleged attachment. If the prosecution has failed to prove that on the date of the sale, there was an attachment in force, then there is no basis for the complaint that the appellant failed to disclose that attachment in the sale deed and that he did so fraudulently and thereby committed the serious offence of cheating. Learned Counsel for the complainant draws my attention to an endorsement made by the trial Magistrate on 22nd April, 1970. That endorsement was made under the following circumstances. P.W. 1, the complainant, went into the witness box and said that there were no direct negotiations at all between her and the appellant, that she did not know the appellant at all, that the sale negotiations were conducted through a broker and that she did not even attend the Registrar's office at the time of the registration of the saledeed. By these disastrous admissions she gave away her entire case. It was at this stage the learned Magistrate appears to have made an attempt to salvage the prosecution case by putting some questions to the appellant. It is unfortunate that the Magistrate did not record the questions that he put. No doubt Under Section 342 (1), Criminal Procedure Code, for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any enquiry or trial, without previously warning the accused, put such questions to him as the Court considers necessary, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. There was nothing in (the evidence of P.W. 1, which was against the accused and consequently there was no need for the learned Magistrate to put any question to the accused for the purpose of enabling him to explain any circumstance appearing against him. It was wrong on the part of the Magistrate to have used the power Under Section 342 (1), Criminal Procedure Code, for the purpose of eliciting an admission from the accused and thereby filling a lacuna in the evidence of P.W. 1. This section does not enable the Court to cross-examine the accused for the purpose of trapping him or beguiling him into an admission of a fact which the prosecution has failed to establish. Further, the endorsement made by the Magistrate has not been signed by the accused-appellant, and it is to the following effect:
I told vakil there was attachment by the Court.
This endorsement is recorded on 22nd April, 1970, that is to say, three years after the date of the sale. It is not known to which vakil the appellant was making reference in this manner. Probably, it might be to the advocate who was actually defending him in this case. If the attachment had been effected after the date of the sale and if a complaint had been filed against the accused on the ground that he had fraudulently suppressed the fact of attachment, it is conceivable that he should have communicated the information to the advocate who was defending him in the criminal case that there was a subsequent attachment by the civil Court. There is nothing in the answer recorded by the Magistrate to show that the appellant admitted or intended to admit that there was a subsisting attachment on the date he effected the sale. It is, therefore, idle for the prosecution to rely upon some unsigned statement of the appellant, which is ambiguous in its meaning and which cannot relieve the prosecution of the burden of establishing the most important ingredient in the offence of cheating, namely, that, on the date the appellant executed the sale, there was a subsisting attachment in respect of the property, that the appellant was aware of that attachment and that he fraudulently suppressed the factum of the attachment from the knowledge of his vendee. In the absence of proof of this most important ingredient, the conviction and sentence imposed upon the appellant have to be set aside and I acquit the accuesd-appellant of the offence Under Section 420, Indian Penal Code, direct him to be set at liberty forthwith, and direct his bail bond to be cancelled. The fine, if collected, will be refunded to the appellant.