1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER S. B. Cr. Revision Petition No. 665/2006 (Prem Chand Versus State of Rajasthan) Date of judgment : 24/07/2007 PRESENT HON'BLE MR. H.R.PANWAR, J. Mr. Niranjan Singh, for the petitioner. Mr. V. R. Mehta, P.P. for the State. By the instant criminal revision petition under Section 397/401 Cr.P.C., the accused petitioner has challenged the order dated 4.7.2006 passed by Judicial Magistrate, Sri Vijay Nagar (for short 'the trial court' hereinafter) whereby the trial court framed the charge against the petitioner for the offence under Section 420 IPC. I have heard learned counsel for the petitioner and public prosecutor for the State. Perused the order impugned as also record of the trial court. The facts and circumstances giving rise to the instant revision petition are that the first informant Gurdeep Singh lodged a report with Police Station, Sri Vijaynagar being FIR No.142 dated 6.5.2004 stating therein that he is having a 2 brickyard at Chak 36 G.B. Murabba No.5. He entered into an agreement with the petitioner to take the sand for the bricks and labours in respect of the land at Chak 36 G.B. Murabba No. 27 Old 29 for a sum of Rs. 1,09900/-. The possession of the land was given to the first informant and it is alleged that first informant paid Rs.59,900/- at the first instance to the petitioner. The first informant has been using the land. However, now the first informant has been restrained by the petitioner by blocking the way. It is contended by learned counsel for the petitioner that from the FIR as also statements of witnesses recorded by the police prima-facie there is no ground to presume that the petitioner committed the offence of cheating. Learned counsel submits that the essential ingredients for the offence punishable under Section 420 IPC are not made out. From the statement of the first informant it appears that the petitioner entered into an agreement with the first informant for taking the sand for bricks and for labour. In pursuance of the agreement the first informant was allowed to take the sand to prepare the bricks and lift the same as also allowed the labourers to work at the site. The agreement dated 1.10.2003 is on record. The first informant has been using the land for more than considerable period. Thus, it cannot be said that the petitioner cheated the first informant. The offence of 3 cheating has been defined under Section 415 IPC. The case of the first informant does not fall in any of the illustrations given in Section 415 IPC. For the offence under Section 420 IPC, it is necessary that a person had dishonest or fraudulent intention at the time of making the promise. In the instant case, right from the inception i.e. at the time of entering into an agreement, there is absolutely no element of cheating. On the contrary, there is absolutely no evidence that the petitioner right from inception had fraudulent or dishonest intention at the time of making promise by way of agreement. Learned counsel for the petitioner submits that a similar controversy came to be decided by this Court in Mewa Ram @ Mewa Singh Vs. State of Rajasthan 2006 (2) Cr.L.R. (Raj.) 1653. In S.W.Palanitkar and Ors. Vs. State of Bihar and Anr. (2002) 1 SCC 241, 129, Hon'ble Supreme Court held that for construing an offence under Section 420 IPC it is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. In K.C.Builders and Anr. Vs. Assistant Commissioner of Income Tax (2004) 2 SCC 731, the Hon'ble Supreme Court held that it is settled law that for establishing the offence of 4 cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or misrepresentation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning, that is, at the time when the promise was made cannot be presumed. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 IPC does not arise. In Alpic Finance Ltd. Vs. P. Sadasivan & Anr., 2001 Cr..L.R. (SC) 217, the Hon'ble Supreme held as under:- “The facts in the present case have to be appreciated in the light of the various decisions of this Court. When somebody suffers injury to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that respondents committed the offence under Section 420 IPC and the case of the appellant is that respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the respondents made any willful misrepresentation. Even according to the appellant, parties entered into a valid lease 5 agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property. It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception.” In Ajay Mitra Vs. State of M.P. & ors, 2003 Cr.L.R. (SC) 392, the Hon'ble Supreme Court held that a guilty intention is an essential ingredient of the offence of cheating. In other words, “mens rea” on the part of the accused must be established before he can be convicted of an offence of cheating. In Mahadeo Prasad Vs. State of West Bengal, AIR 1954 SC 724, the Hon'ble Supreme Court held as under:- “Where the charge against the accused is under Section 420 in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods then a case of cheating would be established.” Keeping in view the decisions of Hon'ble Supreme Court in S.W.Palanitkar and Ors. Vs. State of Bihar and Anr. (supra), K.C.Builders and Anr. Vs. Assistant Commissioner 6 of Income Tax (supra), Alpic Finance Ltd. Vs. P. Sadasivan & Anr. (supra), Ajay Mitra Vs. State of M.P. & ors, (supra) and in Mahadeo Prasad Vs. State of West Bengal (supra), in my view there is no element of cheating and if the evidence available on record remain uncontroverted then also on such evidence, no conviction under Section 420 IPC can be based, therefore, the order impugned deserves to be set aside. In the result, the revision petition is allowed. The order impugned dated 4.7.2006 passed by learned trial court is set aside and the petitioner is discharged of the offence under Section 420 IPC. (H.R.PANWAR),J. rp