THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No.81 OF 2009 ORDER: The revision is filed against the Judgment in Criminal Appeal No.112 of 2007 on the file of the I Additional Sessions Judge at Mahaboobnagar in C.C.No.31 of 2001 on the file of the Judicial Magistrate of I Class, Atmakur for the offence under Section 420 Indian Penal Code (for short, 'IPC'). 2. The case of the prosecution is that the accused being a gold smith has induced the villagers of Chinna Chinthakunta to contribute a sum of Rs.250/- per month for 24 months, which comes to a tune of Rs.6,000/- and after the period of five years, he will pay a sum of Rs.12,000/- and also promised that he will go for a lucky draw every month providing the winner prizes like Maruthi Car, gold and silver etc. On believing his representations, PWs.1 to 3 and other villagers are said to have contributed Rs.1,50,000/-. But, subsequently, the accused did not pay the money, a complaint was lodged and the police after investigation filed charge sheet. 3. During the trial, on behalf of the prosecution, PWs.1 to 4 were examined and marked Exs.P.1 to P.4. After considering the evidence on record, the learned Magistrate found the accused guilt of offence under Section 420 IPC and accordingly convicted and sentenced to suffer simple imprisonment for one year and to pay fine of Rs.4,000/-, in default of payment of fine, simple imprisonment for six months. 4. Aggrieved by the said judgment, he preferred an appeal in Criminal Appeal No.112 of 2007 to the I Additional Sessions Judge, Mahaboobnagar, who confirmed the conviction. Aggrieved by that, the present revision is filed. 5. The point for consideration is whether the conviction of the revision petitioner for an offence under Section 420 IPC is legal and sustainable? 6. POINT: The evidence of PWs.1 to 3 clearly goes to show that they have contributed a sum of Rs.250/- per month along with others believing the representation made by the accused that after a period of five years they will be paid double the amount, but the accused did not pay the amount and therefore, they were cheated. The evidence of PWs.1 to 3 about the payments made by them and the failure of the revision petitioner to refund the same as promised is not in dispute. 7. The learned counsel for the revision petitioner contends that in order to attract an offence under Section 420 IPC, it is necessary that the dishonest intention should be proved at the time when the transaction has been entered into and mere failure to keep the promise in repayment after five years is not a ground for conviction under Section 420 IPC. He relied upon the decisions reported in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others[1] AND Venkat N.N. @ Venkata Narayana N. Vs. State of A.P., and another[2]. 8. There cannot be any doubt about the proposition of law that the dishonest intention has to be proved at the time of entering into the contract or at the time when the promise has been made. Evidently, in order to come to a conclusion whether the revision petitioner has got any dishonest intention from the beginning itself can only be judged from the conduct of the petitioner. There cannot be any direct evidence to prove the same. A sum of Rs.1,50,000/- was said to have been collected from the villagers and according to the complaint every month a draw is to be drawn and a Maruthi car, gold or silver were said to be given as prizes. One can understand after the contribution to be made is on a higher side, such valuable prizes can be given after a draw, when paltry amount of Rs.250/- is being collected from the villagers, there being no substantial prize to contribute huge amount, the very fact it can be anybody’s imagination that a draw to be drawn a prize winner may be given a Maruthi car or gold or silver. This promise itself clearly goes to show that it is an empty promise and it is only a luring the subscribers to part with the money. 9. The learned counsel for the revision petitioner contends that there is no material that he has not conducted the draw. In fact, it is the evidence of PWs.1 to 3 that a promise was made and if at all a draw has been conducted, it is for the accused to show the bona fide by filing documents to show that on a particular date draw was conducted and the particular member became a prize winner. In the absence of such material on record, the evidence of PWs.1 to 3 cannot be discarded. In this case, evidently, the revision petitioner has not filed any document to show that he has kept his promise in conducting the draws and therefore, it clearly goes to show that from the time of enrolling the members, he had no intention to perform the promises and thereby, gullible people, who are the villagers, were made to part with the money. The dishonest intention is, therefore, quite inferable without any hesitation and the Courts below have rightly appreciated the evidence of PWs.1 to 3. Therefore, taking into consideration the above facts, the conduct of the revision petitioner is quite clear that he has started with dishonest intention and induced PWs.1 to 3 to pay money. 10. The learned counsel for the revision petitioner pleaded for mercy saying that he was in jail for more than one month. Taking into consideration the above facts and also the quantum of money involved, the sentence of imprisonment is reduced to three months. The lower Court is to issue N.B.W. for apprehension of accused. Accordingly, the Criminal Petition is allowed in part. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:25-11-2011 INL [1] AIR 2008 SUPREME COURT 251 [2] 2010(2) ALD (Crl.) 765 (AP)