The accused was charged under three counts under S 420 I.P.C and was convicted by the Court of the Joint First Class Magistrate, Coonoor, and sentenced to pay a fine of Rs. 300 for each of the three offences, in default to undergo rigorous imprisonment for three months. In appeal the Additional Sessions Judge of Coimbatore set aside the conviction. The Public Prosecutor preferred the above appeal.
The case of the prosecution may be briefly stated. The accused was the highest bidder for the year 1947-48 at the auction of minor forest produce in Ooty, Seegur and Mudumalai ranges. The amount of his bid was Rs, 10750, and he paid 25 per cent of the bid amount, that is Rs. 2887—8—0, on 25-6-1947 and 26-6-1947. He represented to P.W 1 and her father P.W 3 that he urgently required money for depositing the balance of the bid amount with the forest department and that P.W 1 believing his representations lent him a sum of Rs. 5500 on three promissory notes dated 8—7—1947, 17—7—1947 and 19—8—1947, Exs. P, 2, P-3 and P-4 respectively. He also represented that he had 10 tons of sandalwood worth Rs. 13,000 and that he had sold sandalwood worth Rs. 7000 to one Sarobji and that he had not received the money yet from him. Relying upon those two representations the accused fraudulently, with no intention of repaying the amount, committed the offence of cheating.
The offence of cheating is defined by S. 415 of the Indian Penal Cods. It reads:—
“Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act of omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ‘cheat’.
Explanation:—A dishonest concealment of facts is a deception within the meaning of this section.”
The offence therefore is made up of two ingredients: (1) deception of any person: (2) (a) fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or 2 (b) intentionally inducing that person to do or omit to do anything which he would not do or omit to do if he were not so deceived and which act or omission causes or is likely to cause harm to that person in body, mind, reputation or property. For the purpose of this case 2(b) may be ignored as the arguments were advanced to bring in the case within the first part of the definition, Deceiving generally is to lead into error by causing to believe what is false or to disbelieve what is true. If A makes a representation to B intending to deceive B and B acts upon that representation, B may be said to be deceived by A. If A makes that representation which induces B to lend money to him who had no intention of repaying it to B, the offence of cheating is complete. But, on the other hand, if B does not act upon the representation of A but lends money because he is satisfied with the financial position of A and if A has the intention of repaying it, it cannot be said that A is guilty of the offence of cheating.
The main witnesses for the prosecution are P.Ws 1 and 3. P.W 1 says that the accused wanted money to pay as a deposit to the Forest Department on account of the contract for minor forest produce which he had taken, and believing what he said she paid him the amounts on 7—7—1947. 17—7—1947 and 19—8—1947. She asserts that but for his assurance that he had to get money from Sorabji and that he had taken a Forest Department contract she would not have paid the accused money because it was reserved for her marriage. P.W 3, her father, also says that the accused represented to him that he required money to make up one-fourth of the contract amount which he had to deposit and that he had ten tons of sandalwood worth Rs. 13000 in addition to Rs 6000 or Rs. 7000 worth of sandal-wood sold to Sorabji. In the cross-examination this witness, who must have acted on behalf of his daughter, says that he knew that the accused had about 10 tons of sandal wood and that he also knew that the accused was entitled to get a sum of Rs. 7000 or Rs. 8000 from one Sarabji. He admits that he trusted him because of his knowledge of his solvency. P.W 1 advanced the said amounts on three promissory notes, Exs. P-2, P-3 and P-4. They carry interest at the rate of 12 per cent per annum. It is clear from the aforesaid evidence that though the occasion for the borrowing by the accused was the need to deposit the amount with the forest department P, W. 1 advanced the moneys on promissory notes for interest as she and her father were satisfied with the financial position of the accused. I cannot therefore hold on the evidence that P.W 1 was acting upon the representation made by the accused that he wanted money urgently for depositing with the Forest department. It cannot also be said on the evidence that the accused at the time he borrowed the money had no intention of repaying it or otherwise defrauding P.W 1. Exs. P-20 and P-21 show that he was the highest bidder for a sum of Rs. 107-50. Exs. P-22 and P-23 indicate that the District Forest Officer confirmed the bids and directed the accused to give security deposit and also to furnish additional security. Under Exs. P-24 and P-25 the District Forest Officer informed him that the Tahsildar did not declare the accused to be solvent for the entire bid amount and therefore asked him to deposit the entire amount before 27th July 1947. Ex. P-26 is the letter written by the accused to the Department wherein be requested the department to allow him to pay the amount in instalments. Further correspondence passed between the accused and the department owing to disputes in regard to the manner in which the balance should be paid to the department. It is clear from the correspondence that the accused did not deposit the balance because of the disputes between him and the department. The correspondence also discloses that while, according to the ordinary rules of the forest department, only 25 per cent of the bid amount had to be deposited, the department insisted that an additional 1/3 of the amount should be deposited. Finally the accused did not pay the amount. It is clear,- therefore, from the correspondence that the non-payment of the balance of the bid amount was mainly due to the disputes between them. The accused wanted money urgently and executed promissory notes in favour of P.W 1. Though he borrowed the amount for a specific purpose he did not deposit the amount because of supervening circumstances. I cannot therefore hold on the evidence that at the time when the accused borrowed the amounts he had no intention of paying the amount to the Forest Department or of repaying the amount to P.W 1.
On the evidence, therefore, the following facts emerge. The accused, to the knowledge of P.Ws 1 and 3, was solvent. They lent the money, to him in promissory notes carrying 12 per cent interest. He badly wanted the money it that time as he had to deposit the sum with the forest department. But he did not deposit the amount on account of disputes between them. He had therefore no intention at the time of borrowing to defraud P.W 1, nor did P.W 1 lend the money because of his representation that he wanted the money for paying to the forest department. At best that was only the occasion for borrowing. On these facts, it is manifest that the accused did not, by deceiving P.W 1, fraudulently or dishonestly, induce her to deliver any property to him. I therefore agree with the Additional Sessions Judge that the prosecution did not make out the case against the accused.
In the result, the appeal is dismissed.
N.T.RAppeal dismissed