THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.1179 OF 2009. DATED: 10-09-2009. Between: State of A.P. rep by Public Prosecutor, High Court, Hyderabad. … Appellant/complainant and Lokam Mutyala Rao …Respondent/accused THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.1179 OF 2009. JUDGMENT: This Criminal Appeal by the State under Section 378 (3) and (1) Cr.P.C. is directed against the order of acquittal of the respondent-accused of the offences punishable under Sections 420 and 506 (2) of the Indian Penal Code, 1860 (for short’ ‘IPC’) passed by the Additional Judicial I Class Magistrate, Narsapur, vide judgment, dated 16-09-2003, in C.C.No.77 of 2002. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: On 10-06-1999, at about 8.00 A.M., the accused approached P.W.1 at Kothapalem village for supply of prawn seed and prawn feed to him with an agreement that he shall handover the prawn product after full growth. Then P.W.1 agreed to supply the same for growth of prawns in the tank of the accused. In pursuance of the agreement, P.W.1 supplied 30,000 prawn seed in the presence of P.W.2 and subsequently he also supplied Avanthi prawn feed worth of Rs.25,000/- and gave Rs.30,000/- to the accused on 15-07-1999 in the presence of P.W.3. Therefore, P.W.1 invested prawn feed and seed and also financed about Rs.30,000/-. Thereafter, the accused failed to handover the prawn after full growth. Therefore, P.W.1 raised a dispute before the elders on 20-12-2000. Then the accused promised to supply the prawn in the next crop. On 02-12-2001 when the accused was catching the prawn, P.W.1 went to the tank of the accused and asked to handover grown up prawn, but the accused threatened him with dire consequences and informed him that he sold away the grown prawns to third parties. Therefore, P.W.1 lodged Ex.P1-complaint with the police, who registered a case and after completion of investigation, filed the charge sheet. 3. When charges under Sections 420 and 506 (2) IPC were framed against the accused, read over the explained to him in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws. 1 to 5 and got marked Exs.P1 and P2. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same and reported no evidence. 6. The trial Court, after considering the evidence on record found the accused not guilty of the offences with which he was charged and accordingly, acquitted him. Hence, this appeal by the State. 7. Counsel representing the learned public prosecutor contended that the evidence of P.W.1 is very clear that the accused undertook to give the prawns after full growth, that he failed to fulfill his promise and sold away the prawn to third parties, that therefore, necessary ingredients of Section 420 IPC have been made out and hence, she prays to convict and sentence the accused. 8. Now, the point that arises for determination in this appeal is whether the prosecution has proved its case against the accused beyond all reasonable doubt of the charges under Sections 420 and 506 (2) IPC and whether the judgment of the trial Court is correct, legal and proper? 9. Necessary ingredients to constitute the offence of cheating which is defined under Section 415 I.P.C. are: (1) There should be fraudulent or dishonest inducement of a person by deceiving him, (2) (a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived, and (3) in cases covered by (2)(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 10. Law is well settled that the prosecution must establish that the dishonest intention entertained by the accused must be from the inception of the crime or promise. The evidence of P.W.1 would go to how that on 10-06-1999 he supplied 30,000 prawn seed and on 15-07-1999 he also supplied Avanthi prawn worth of Rs.25,000/- and also gave cash of Rs.30,000/- to the accused, but the accused did not handover the prawns after full growth of the product. Then P.W.1 raised a dispute before the elders and the accused promised to supply the prawns in the next crop. There cannot be any dispute that mere breach of promise does not give rise to a criminal prosecution, unless there is intention to cheat P.W.1 was entertained by the accused at the time of making promise. In view of the fact that the intention was locked up in the mind of the accused, it is difficult for the prosecution to establish the same, but the intention of the accused can be inferred from the evidence adduced by the prosecution. The evidence of none of the prosecution witnesses would disclose that at the time of making promise, the accused entertained an idea of deception in not handing over the prawns after full growth. The evidence of P.Ws. 2 and 3 would go to show that they were present when the seed or feed of prawn have been supplied to the accused and promise made by the accused to handover the grown up prawns to P.W.1. From the evidence of these witnesses, it can be said that it is a case of breach of promise. There is no allegation that the accused induced P.W.1 to invest Rs.80,000/-. It is not the case of the prosecution that a false representation was made by the accused and believing the said false representation, P.W.1 invested Rs.80,000/-. In the absence of any circumstances to show that the accused entertained dishonest intention from the inception, he cannot be convicted under Section 420 IPC as the accused also promised to pay the amount due to P.W.1, but he could not pay the amount due to financial problems. Insofar as Section 506 (2) IPC is concerned, except the oral testimony of P.W.1, there is no other evidence. Therefore, the trial Court after elaborate consideration of evidence on record, rightly found the accused not guilty of the offences with which he was charged and absolutely, there are no grounds to interfere with the judgment under challenge. 11. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the judgment, judgment, dated 16-09-2003, in C.C.No.77 of 2002, on the file of the Additional Judicial I Class Magistrate, Narsapur. --------------------- K.C.BHANU, J DATED: 10-09-2009 Hsd