Sheosagar Pandey v. Emperor Opposite Party.

1. The petitioner in this criminal revision is one Sheosagar Pandey who has been convicted under S. 420 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 100. The accused is admittedly a gotia of the complainant Musammat Khinja Koer whose case is that he took Rs. 80 from her representing to her that he would arrange the marriage of her son with the daughter of one Khirodhar Chaudhuri, who is the brother-in-law of the petitioner.

2. Her case further is that the accused did not bring about the marriage, nor returned the money to her though it was demanded from him several times. If the facts are true, the petitioner is undoubtedly civilly liable to refund the money; but there is nothing in the judgments of the Courts below or in the evidence adduced by the parties to prove beyond reasonable doubt that he entertained any dishonest intention at the time when the money was advanced to him. In Jamadar Rai v. Emperor (1) where the facts were somewhat similar to those of the present case it was pointed out by this Court that mere breach of a contract cannot give rise to a criminal prosecution. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time of the alleged inducement which may be judged by his subsequent act but of which the subsequent act is not the sole criterion. In the present case the accused is admittedly related both to the complainant and the person whose daughter's marriage was to be arranged; and it is conceivable that the accused may have seriously intended to bring about the marriage at the time when the money was paid to him. The trial Court in dealing with the matter has observed as follows: “The payment of the money having been proved, the onus of explaining why the accused was not paying back the money to the complainant, though he was asked several times by her to do so, lies on the accused.” Such reasoning is obviously based upon a confusion of thought. In my opinion where there is no clear and conclusive evidence of the criminal intention of the accused at the time the offence is said to have been committed and where the party said to be aggrieved has an alternative remedy in the Civil Court, the matter should not be allowed to be fought in the Criminal Courts.

3. I would thus allow this application, set aside the conviction and the sentence upon the petitioner and direct that the bail bond be cancelled and the fine, if paid, be refunded to him.

4. Appeal allowed.