HON’BLE SRI JUSTICE K.G.SHANKAR CRL.R.C.No. 1100 of 2005 O R D E R: The learned counsel for the petitioner is ready. There was no representation for the 2nd respondent when the case was called on 20.8.2011. On that day, the case was posted to today ‘for Judgment’. Even today, there is no representation for the 2nd respondent. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. The revision petitioner is the accused before the First Additional Judicial Magistrate of First Class, Khammam. He sought for his discharge through Crl.M.P.No.448 of 2005. Through the impugned order, the learned Magistrate dismissed the petition. Hence, this revision. 4. The case of prosecution is that : i) One K.Venkateswara Rao (2nd respondent herein), who is the defacto complainant lent a sum of Rs.3,90,000/- to the accused. The accused made repayment of the amount on five installments and evaded to pay the balance amount thereafter. ii) In the panchayat, the mediators resolved the dispute directing the accused to pay Rs.3,90,000/- as the original amount attracted interest at 1% p.a. According to the directions of the mediators, the accused issued a cheque for Rs,2,25,000/- to the defacto complainant promising to pay the balance amount within ten days. iii) As the accused failed to pay the balance in ten days in accordance with the undertaking given in the panchayat, the defacto complainant demanded the accused for the payment of the balance amount. The accused denied the liability claiming that he need not pay any monies to the defacto complainant. Considering that the accused cheated the defacto complainant, the defacto complainant lodged a police complaint. On the complaint given by the defacto complainant, the police took up investigation and laid a charge sheet. 5. Sri P.Nageswara Rao, learned counsel for the accused contended that the offence of cheating prima facie was not made out against the accused and that the accused was entitled to be discharged. Inter alia it is also the contention of the learned counsel for the accused that there is no intention of cheating the defacto complainant, when the accused undertook to repay the balance amount within ten days from the date of issuance of the cheque and that the accused consequently, was not guilty of the offence u/Sec.420 IPC. 6. The learned counsel for the accused placed reliance upon the illustration ‘H’ of Sec.415 IPC. Illustration “H” of IPC reads thus: “(h) A intentionally deceives Z into a belief that A has performed A’s part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.” 7. It is his claim that unless the accused deceived the defacto complainant at the time of undertaking given by him in panchayat, the accused shall not be liable for punishment u/Sec.420 IPC and that there is no prima facie evidence that the accused had the intention of cheating the defacto complainant at that time. 8. He also placed reliance on the decision of the Division Bench of this Court in M.Sivaram Vs. State of A.P. [1]. It was the decision u/Sec.482 Cr.P.C. In that case, the allegation was that the accused did not pay the amounts due and payable towards the supplies made by the complainant to the accused. Admittedly, the major portion of the amount due was paid by the accused to the defacto complainant. There was no averment in the complaint that the accused had fraudulent intention of not to pay the debt money to the defacto complainant at the time of the commencement of the transactions. This court therefore, held that the offence u/Sec.420 IPC prima facie was not made out. 9. It is pointed that the accused paid as many as five installments after receiving Rs.2,90,000/- from the defacto complainant and that there was no intention of cheating the defacto complainant. However, the offence of cheating arose not in respect of the original money borrowed by the accused but when he allegedly promised to pay the balance amount between Rs.3,90,000/- and Rs.2,25,000/- and later failed to do so. Consequently, the payment on five installments by the accused to the defacto complainant under the original debt are irrelevant. 10. However, it is not the case of the defacto complaint nor was it stated in the pre-trial statement by him u/Sec.161 Cr.P.C. that the accused had the intention to cheat the him when he appeared and agreed the compromise before the mediators in the panchayat. That being so, it may not be held that the accused had the intention of cheating the defacto complainant. Even though, the accused made a promise to pay the balance amount between Rs.3,90,000/- and Rs.2,25,000/- in the panchayat, and later he failed to do so. Similarly, assuming that the cheque for Rs.2,25,000/- ultimately stood bounced, the accused may be liable for the offence u/Sec.138 of the Negotiable Instruments Act, but not for the offence u/Sec.420 IPC. 11. At any rate, it is not clear whether the cheque for Rs.2,25,000/- was honoured or had bounced. The basic point is that whether the cheque bounced or otherwise and not whether the accused failed to pay the balance amount of Rs.1,75,000/- within ten days from the date of issuance of the cheque or otherwise. The accused prima facie be liable for the offence u/Sec.420 IPC. The trial court erred in appreciating the said question and wrongly concluded that it was not a case where the accused deserves to be discharged. In the circumstances of the case, the accused is liable to be discharged as prima-facie case is not made out against the accused. 12. Accordingly, this revision is allowed. The accused is discharged for the offence u/Sec. 420 IPC. _____________ K.G.SHANKAR, J Dt. 26.8.2011 Mjl/* [1] 2007 Crl.L.J.1259