Mere breach of a contract, without clear and conclusive evidence of criminal intention at the time of the alleged inducement, does not constitute cheating under Section 420 of the Indian Penal Code.

B.D.Singh, J.

1. This criminal revision has been preferred by the sole petitioner who was convicted for an offence under Sec. 420 of the Indian Penal Code (hereinafter referred to as the Code) and was sentenced to suffer six months rigorous imprisonment and a fine of Rs. 200.00 was also imposed upon him for the said offence. In default of payment of the fine, he was ordered to undergo further rigorous imprisonment for two months, by the trial court. On appeal his conviction and sentence were maintained. It may be noted that the trial court had convicted also his two brothers, namely, Nag Narain Misser and Saligram Misser for the offence under the aforesaid section, and the same sentences were imposed upon them. The appellate court, however, gave benefit of doubt to Nag Narain Misser and Saligram Misser and acquitted them.

2. Facts, in brief, which have given rise to this application are : The prosecution was initiated on a complaint dated 4-1-1965 (Ext. 1) lodged by Mosammat Khandari Kuer (P. W. 4) widow of Dhorai Pandey. According to the complainant, on 14-12-1964 the petitioner along with his two brothers, who have been acquitted by the Sessions Judge, came from their village Bankata to the complainant who was living then at village Dhamnagar which is 16 miles from the village of the petitioner, and requested her to execute a zerpeshgi deed in respect of her 19 kathas 16 dhurs of land after taking a loan of Rs. 1,000.00 from the accused. To this she agreed. On 15-12-1964 she was taken to Gopalganj Sub-Registry Office, and was made to execute a document (Ext. 2) by obtaining ner thumb impression, which she took to be a zerpeshgi deed, as according to her, the contents thereof were not read out or explained to her. The accused also promised to pay the consideration at her home after the registration. After the deed was registered the registration slip was also taken from her after obtaining her thumb impression thereon, but even later no money was paid to her. Thereafter, on enquiry she learnt that fraud was committed by the accused as in fact it was not a zerpeshgi deed but it was an out and out sale, and for that also no consideration was paid to her. Then she filed the said complaint on 4-1-1965.

3. The defence, in short, was that she had knowingly sold her lands after receiving Rs. 920.00 by way of adjustment of prior loans before the execution and the balance of Rs. 80.00 in cash, was paid to her after the registration. The trial court after considering the evidence on record, however, convicted the petitioner along with his two brothers as mentioned earlier. On appeal the conviction and sentence passed upon the petitioner were maintained whereas his two brothers were acquitted. Hence this revision.

4. Learned counsel appearing on behalf of the petitioner has raised the following points for consideration by this Court :

(i) The prosecution story about misrepresentation to the complainant regarding the zerpeshgi nature of the deed having been disbelieved by the appellate court, the petitioner cannot be convicted under Sec. 420 of the Code.

(ii) The appellate court has erred in convicting the. petitioner solely on the ground that no consideration was paid to her contrary to the promise made by the petitioner. For the payment of consideration the court ought to have examined the terms mentioned in the document (Ext. 2) itself, specially when there is no finding that the document was not read over and explained to her. Even if consideration had not passed the court below ought not to have gone into the matter as it was a civil right.

5. I will take up for consideration points Nos. (i) & (ii) together. Learned counsel appearing on behalf of the petitioner has contended that the prosecution examined 4 witnesses, namely, P. Ws. 1 to 4, to prove the prosecution story. The appellate court discarded the evidence of P. Ws. 1 to 3 and based the conviction solely on the testimony of P. W. 4, the complainant; even P. W. 4 has n