IMPORTANT POINT
For an offence of cheating it is not sufficient to establish that a false representation has been made. It is further necessary to prove that the representation so made is a false one to the knowledge of the accused made with a view to deceive the complainant.

ORDER

M. Venugopal, J.— The conviction and sentence dated 31.7.2012 in S.C. No. 149 of 2009 passed by the Learned Sessions Judge/Mahila Court, Madurai are now under challenge in the present Appeal filed by the Appellant/Accused.

2. The Appellant/Accused was found guilty by the Trial Court for the offence under Section 417 of I.P.C. and was awarded with the punishment of six months rigorous imprisonment and was also directed to pay a fine of Rs.1,000, in default of payment of fine, he was directed to undergo default sentence of one month Simple Imprisonment. The period of sentence already undergone by the Appellant/accused was directed to be set off as per Section 428 of Cr.P.C. However, the Appellant/accused was acquitted in respect of charge for the offence under

Section 376 of IPC as per Section 235(1) of Cr.P.C.

3. The case of the prosecution is that the Appellant/accused with a criminal intention to have cohabitation with the victim girl viz., Muthurani, when she was alone in the house by uttering luring words also gave purchased eatables and cheated her by forcefully indulging in intercourse with her. When this fact was known to the parents of Muthurani, panchayat was conducted and at that time, the appellant/accused informed that he got married to one Ruby of Palamedu. Therefore, the Inspector of Police, Thirumangalam All Women Police Station, after completing the investigation, laid a charge-sheet against the Appellant! Accused for the offences under Sections 417 and 376 of I.P.C.

4. On the basis of the accusation levelled against the appellant/accused, the Trial Court framed necessary charges for the offences under Sections 417 and 376 of I.P.C. and the same were read over and explained to him. The appellant/accused denied the charges framed against him and demanded a trial.

5. On the side of the prosecution, witnesses PWs l to 16 were examined and Exs. P1 to 12 were marked. On the side of the appellant/accused, no witness was examined and no document was marked.

6. When the appellant/accused was questioned under Section 313 of Cr.P.C. in regard to the incriminating circumstances appearing in evidence against him, he denied his complicity in the crime.

7. The Trial Court, on an appreciation of both oral and documentary evidence, had resultantly found the Accused guilty under Section 417 I.P.C and sentenced him to undergo six months rigorous imprisonment and also imposed a fine of Rs.1,000. However, it acquitted the appellant/accused in respect of offence under Section 376 of I.P.C.

8. Being dissatisfied with the conviction and sentence passed by the Trial Court in S.C. No. 149 of 2009 on the file of the Learned Sessions Judge Mahila Court, as an aggrieved person, the appellant/accused has projected the instant Appeal before this Court.

9. The Learned counsel for the appellant/accused submits that the Trial Court should have taken into account that the complaint was preferred by the de facto Complainant with ulterior motive and should have consequently, acquitted the appellant herein.

10. The Learned counsel for the appellant/accused takes a plea that the Trial Court should• have considered the unexplained delay in filing the complaint by the de facto complainant.

11. Yet another stand taken by the learned counsel for the Appellant/Accused is that the prosecution in the instant case had failed to prove that if at all, the de facto Complainant has sexual intercourse with the appellant/accused.

12. Advancing his arguments, the learned counsel for the appellant/accused draws the attention of this Court to the evidence of Doctor viz., PW13 that the de facto Complainant did not seem to have had sexual intercourse prior to her examination. Furthermore, the Doctor had not conducted finger tests on the de facto Complainant, which goes to the root of the prosecution case.

13. The Learned counsel for the appellant/accused vehemently contends that the de facto Complainant could not be believed by any reasonable person because no