JUDGMENT
D.P. Sengupta, J.
1. Present revlsional application is directed against the judgment and order dated 2.12.99 passed by the learned Additional Sessions Judge, 1st Court, Howrah in Criminal Appeal No. 12 of 1997 thereby affirming the order of conviction and sentence passed by the learned Judicial Magistrate, 4th Court, Howrah in complaint case No. 1408/C of 1994 (T.R. No. 337 of 1994).
2. The prosecution case in brief is that the complaint is a dealer in Horticultural Plants, Seeds etc. The accused contacted the complainant for purchasing some plants and seeds. Being satisfied with the terms and conditions of the said firm the accused agreed to purchase the same by quotation offer and in terms of the said offer the complainant supplied plants to the accused person. The accused received the said plaints, but failed to pay the bill amount of Rs. 1,70,000/-. It was alleged that the accused put his signature on the challans on being satisfied that the articles as ordered were duly supplied. On 25.9.94 the witness Usha Patil went to the place of the accused to receive the payment on behalf of the complainant. The accused asked the said witness to come again on 3.10.94 and accordingly said witness again went to the accused on the said date to receive the payment, but the accused refused to make the payment On the same day in the evening the complainant along with the witness Usha Patil again approached the accused person for the payment, which was also refused by the accused.
3. The learned Magistrate after considering the entire evidence on record found the accused guilty of the offence under Section 420 of the Indian Penal
Code and accordingly sentenced him to suffer regorous imprisonment for two years and also to pay a fine of Rs. 600/-, id., to suffer further R.I for 6 months.
4. Challenging the aforesaid order of conviction and sentence an appeal was preferred before the learned Sessions Judge, Howrah. The learned Additional Sessions Judge by the impugned Judgment and order dismissed the said appeal and affirmed the said order of conviction and sentence passed by the learned Magistrate. The present revisional application has been preferred against the Judgment and order of the learned Additional Sessions Judge.
5. Two points have been raised in the present revisional application. The ingredients of the offence under Section 420 IPC are totally lacking in the present case and the dispute between the parties is purely civil in nature and both the Courts below committed error in convicting the accused under Section 420 IPC.
6. The learned Advocate appearing for the petitioner submits that the complainant failed to make out any case under Section 420 IPC and in absence of any of the ingredients of the offence under Section 420 IPC the learned Court below should not have convicted the accused petitioner. In support of his contention the learned Advocate relies on a Judgment of the Hon’ble Apex Court reported in 1973 SCC (Cri) 1081 (Hari Prassad Chamaria v. Bishnu Kumar S. Rekha and Ors.). On perusal of the said Judgment it appears that a proceeding under Section 420 IPC was quashed by the High Court against which appeal was preferred before the Hon’ble Supreme Court. In the said decision prosecution case was that the respondent failed to render accounts in the month of December, 1967. On being asked the respondent stated that accounts would be submitted as and when the money would be received from the transport business. In such circumstances it was held by the Hon’ble Court that failure to render accounts for a particular period might create a civil liability for them, but this would not be sufficient to fasten criminal liability on the respondents for the offence of cheating. The judgment referred to above is not applicable in the present case as the facts and circumstances of the present case is quite different from that of the case referred to above.
7. Next Judgment relied upon by the learned Advocate of the petitioner is (Supdt. & Remembrancer of Legal Affairs, W.B. v. Birendra Chandra Chakraborty). In the said decision it was held by the Hon’ble Supreme Court that where there was a long and intimate relation between the accused and the complainant and there were numerous transactions between them, it would be difficult to determine the extent to which the complainant was duped or pursuaded by misrepresentation. It was a dispute of civil nature.
8. In the decision it was held by the Hon’ble Apex Court that for the purpose of holding the accused guilty under Section 420 IPC the evidence adduced must establish beyond reasonable doubt mens rea on their part.
9. The next Judgment relied upon by the learned Advocate of the petitioner is reported in 1978 Cri.LJ 706 (Ram Niwas v. Zafar Abbas). It
was held by the learned single Judge of Allahabad High Court that the distinction between mere breach of contract and offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct. Mere breach of contract cannot give rise to a criminal prosecution.
10. In 1976 Cri LJ 1622 (Monoranjan Sinha v. Bishamboralal Saboo) relied upon by the petitioners learned Advocate, it was held by the learned single Judge of Gauhati High Court that if a person takes money on some statements, he does not commit an offence of cheating as contemplated under the law. Deception is one of the essential ingredients of the offence and If the same is absent no offence under Section 420 IPC cannot be said to have been committed by a person taking money on loan.
11. In the next Judgment reported in 2000 Cal Cr LR (SC) 293 (Hridaya Ranjan PD. Verma and Ors. v. State of Bihar and Anr.], In the said Judgment it was held by the Hon’ble Supreme Court as follows:-
“In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but the subsequent conduct is riot the sole test. Mere breach of contract cannot give rise to the criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is his intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up the promise subsequently such a culpable intention right at the beginning, that is. when he made the promise cannot be presumed.”
12. Relying upon the aforesaid Judgments it is submitted by the learned Advocate of the petitioner that the ingredients of cheating are totally lacking in the present case. It is further submitted that to prove an offence of cheating it must be shown that there existed a dishonest intention at the time of commission of the offence. In absence of such material the Courts below committed grave error in convicting the accused petitioner.
13. Mr. Mukherjee, learned Advocate appearing for the complalnant/o.p. submits that on the basis of the evidence on record the Court below was Justified in convicting the accused petitioner. According to Mr. Mukherjee in the present case it is clear from the evidence on record that the accused induced the complainant to deliver the plants and subsequently refused to make the payment of Rs. 1,70,000/-. The accused person induced the complainant to deliver the goods and being so induced the complainant delivered the goods to the accused, who received the same by putting his signature on the challans. From the evidence it is clear that being induced by the accused the complainant had delivered the articles and thereafter on repeated demands failed to pay the amount. Subsequent conduct of the accused is sufficient to indicate that the accused had dishonest intention from the very beginning.
14. I have heard the learned Advocates of the respective parties and I have gone through the entire evidence on record. I have also perused the
Judgments referred to by the learned advocate of the petitioner. In my considered view the Judgments referred to above are not applicable in the present case as the facts and circumstances of those cases are quite different from the present one. The evidence on record is sufficient to prove that there was inducement and the complainant was deceived by such inducement made by the accused. It is also clear from the evidence on record that the complainant delivered the goods to the accused, who also received the same by putting his signature on the challans. Subsequent conduct of the accused in refusing to make the payment of Rs. 1,70,000/-also goes to show that the accused had dishonest intention from the very beginning. Giving words to pay the dues is an inducement and ultimately non-payment of the same and denying the facts or receiving the articles itself constitutes an offence of cheating.
15. After going through the Judgments delivered by the learned trying Magistrate as also the appellate Court below I find that both the Courts below delivered the Judgments on proper appreciation of the entire evidence on record and on proper application of mind. I do not find any reason to interfere with the concurrent finding of both the Courts below.
16. In view of the discussions made above I find sufficient merit in the submissions made by Mr. Mukherjee, learned Advocate appearing for the complalnant/o.p. In my considered view the impugned Judgment and order of the learned Additional Sessions Judge, 1st Court, Howrah in Criminal Appeal No. 12 of 1997, does not suffer from any illegality. The revisional application accordingly fails and the same is dismissed. The accused petitioner is directed to surrender before the learned trying Magistrate to serve out the sentence.
The lower Court records may be sent down to the Court below immediately.