To establish cheating under IPC Section 420, there must be evidence of fraudulent intent at the time of the transaction, not merely a subsequent failure to fulfill contractual obligations.

JUDGMENT :

V. SRINIVAS, J.

1. Assailing the judgment dated 13.06.2007 in Crl. Appeal No. 29 of 2006 on the file of the Court of learned V Additional Sessions Judge, Tirupati, confirming the conviction and sentence passed against the accused by the judgment dated 01.02.2006 in C.C. No. 469 of 2003 on the file of the Court of learned II Additional Judicial Magistrate of First Class, Tirupati, for the offences under section 420 of Indian Penal Code (hereinafter referred to as “IPC”) the petitioner/accused filed the present criminal revision case under Section 397 r/w. 401 of the Criminal Procedure Code, 1973.

2. The revision case was admitted on 18.06.2007 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl. R.C.M.P. No. 1151 of 2007.

3. The shorn of prosecution case is that:

(i) On 16.03.1991, accused borrowed a sum of Rs.50,000/- from PW-1 by duly promising him to repay the same with interest and hypothecated his house bearing D. No. 132 under a simple mortgage deed and executed it on the same day.

(ii) Similarly on 25.04.1991, accused also borrowed a sum of Rs.50,000/- from PW-2 and LW-3 C. Sridhar by promising them to repay the said amount with interest and hypothecated the house bearing No. 132 and also vacant site adjacent to the above said house under a simple mortgage deed and executed it on the same day.

(iii) As the accused failed to discharge the above said debts, PW-1 filed a suit in O.S. No. 110 of 1998, obtained a final decree, for realization of the decreetal amount, he filed E.P. No. 223 of 2000, the said hypothecated properties were brought to the sale and a sale notice was published on 06.10.2002 and 05.11.2002 in Telugu News daily i.e. Enadu.

(iv) In that context, one Veeraswamy Naidu filed a claim petition informing that the accused also sold portion of his house property under a registered sale deed dated 04.05.1990 and accordingly the auction was not held on 05.11.2002.

(v) On came to know about the cheating made by the accused, PWs. 1, 2 and LW-3 C. Sridhar filed a private complaint before the trial Court. The same was forwarded to the Central Crime Station, Tirupati and registered in Cr. No. 559 of 2002 by PW-5-S.I. of Police under Section 420 of IPC and investigated into.

4. After completion of investigation, PW-6 laid charge sheet and the same was numbered as C.C. No. 469 of 2003 on the file of the Court of learned II Additional Judicial Magistrate of First Class, Tirupati, trial was conducted, found the accused guilty of the offence under Section 420 of IPC and sentenced him to undergo rigorous imprisonment of one (1) year and to pay fine of Rs.3,000/- in default to suffer simple imprisonment of three (3) months, for the said offence.

5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl. Appeal No. 29 of 2006, before the Court of learned V Additional Sessions Judge, Tirupati and the same was dismissed, vide judgment dated 13.06.2007, by confirming the conviction and sentence passed by the trial Court.

6. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused.

7. Heard Sri G. Divya Theja learned counsel for the petitioner/accused and Sri S. Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent-State.

8. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?”

9. Sri G. Divya Theja, learned counsel for the petitioner/accused submits that the matter is civil nature and there is no element of cheating; that the de facto complainant has to realize the decrees by way of other execution modes against the petitioner instead of filing criminal complaint; that the Civil court rejected the claim of one E. Veera Swamy Naidu and claim application was dismissed by observing that he has no interest over