A mere promise to pay money within a specified period is not a false representation of fact and does not amount to cheating under Section 420 of the Indian Penal Code.

Dharmpal Sinha, J.

1. This appeal on special leave has been filed under section 378 (4) of the Code of Criminal procedure by the complainant against the Judgment and order dated 20.6.1986, whereby the Learned Sub-divisional Judicial Magistrate, Patna city, has acquitted the accused Bishun pd. Agrawal, opposite party No.2 in the special leave application (To be hereinafter referred to as the respondent) of the offence punishable under Sections 406 and 420 of the indian Penal Code in Complaint Case No.33 of 1980, Trial No.554 of 1986.

2. The case had been initiated on the basis of a complaint filed by the appellant, Hanuman Pd. Didwania on february 12, 1980 before the Sub-divisional Judicial Magistrate, Patna city and he had alleged therein that the accused-respondent had come to the shop of the complainant situated at jhauganj, Police Station-Chowk, District-Patna at 12 noon on 20.7.1977 and made a request that he was in urgent need of Rs.93,00/-, without which his prestige may be spoiled and the appellant on assurance given by Respondent that he would pay back the money within a week, handed over the amount of Rs.93,00/- to the respondent. The respondent did not pay back the money as promised and later when the appellant approached him, the respondent issued a cheque of Rs.93,00/- on 27.10.1977 drawn on the Central Bank of India; but when the appellant deposited the cheque for encashment to the Bank, the cheque was returned uncashed as there was no outstanding amount to the credit of the respondent in the Bank. According to the further case made out in the complaint, the complainant approached the respondent and produced before him dishonoured cheque and made demand for payment of his money; but the respondent did not exceed to the request and eventually made a refusal to pay back the amount, whereafter on 12.2.1980 the complaint was filed.

3. The respondent when put on trial denied the allegation and had taken a defence that there were some transactions between him and the appellant, and in settlement of some account he had issued a post dated cheque, which was to be presented before the Central Bank within specified period but the same was not done and the case was filed by the appellant.

4. It appears that during the course of trial in all six witnesses had been produced on behalf of the complainant (appellant) and some documents including the complaint petition, dishonoured cheque and bank note had been brought on the record.

5. The Learned Trial Court after considering the evidence has held that the charge of the offences punishable under Sections 420 and 406 of the Indian Penal Code, for which the respondent had been charged during the trial, has not been established and has acquitted him.

6. The contention of the Learned counsel for the appellant is that when the respondent had approached the complainant for the first time, he had given false assurance that he would pay back the money within a week and on the false assurance given by the respondent, the appellant had advanced the amount of Rs.93,00/-, and the complainant during the course of evidence also deposed to this effect and in such a situation, the Learned Trial Court took a wrong view that no charge of the offence punishable under Sec.420 of the Indian Penal Code has been established. He further submitted that there was no business transaction going on between the appellant and the respondent and in such a situation when money had been paid on assurance, it will amount not only to civil liability but criminal liability and the respondent should have been held to have been committed of the offence punishable under Sec.420 of the Indian Penal code.

7. The Learned Trial Court has made observation in the impugned judgment to the effect that at the time of issuance of cheque the complainant had not delivered any thing to the respondent and so no case of cheating is made out. According to the contention of the learned Counsel for the appellant the offence of