Acquittal on charges of cheating and false representation under Sections 419 and 420, I. P. C., affects the charge of forgery under Section 465, I. P. C., as it negates the essential ingredient of fraudulent intent and the making of a false document with the intention to cause wrongful loss or wrongful gain.

( 1 ) THE petitioner Adhi Mallick was charged on three counts -- first with having committed an offence under Section 419, secondly with having committed an offence under Section 420 and thirdly with having committed an offence under Section 465, Penal Code.

( 2 ) THE facts upon which the three counts of charges were attempted to be sustained were briefly these:

( 3 ) THE petitioner put himself forward as owner of a certain plot of land which in fact he was not. As a result of this false representation the complainant was induced to part with a sum of money (Rs. 2500/-) and a deed of sale was said to have been executed by the petitioner in favour of the complainant's son. The document was registered in due course. A considerable time afterwards it was discovered that the petitioner had nothing to do with the land in question and that he had perpetrated fraud upon the complainant. A complaint was made which ultimately led to the petitioner being tried upon the three counts of charges indicated above.

( 4 ) TO these three charges the petitioner pleaded not guilty and his defence appears to be that he had not executed the document in question.

( 5 ) AT the trial quite a large number of witnesses was examined in support of the three charges framed in the case and the learned Magistrate after having considered the evidence came to the conclusion that the first two counts of charges under Section 419 and under Section 420, I. P. C. could not possibly be sustained. The learned Magistrate however, thought in the facts and circumstances proved in the case that the charge under Section 465, I. P. C. had been made out. The result was that the petitioner was convicted under Section 465, I. P. C. and! sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default, to undergo rigorous imprisonment for a further term of three months.

( 6 ) THE petitioner appealed but the learned Judge who dealt with the appeal ultimately dismissed it and affirmed the findings arrived at by the learned Magistrate. The petitioner then applied to this Court and obtained the present Rule.

( 7 ) MR. Mukherjee appearing on behalf of the petitioner has raised several points in support of the Rule. It is not necessary to refer to the others except the first which is that in view of the order of acquittal made so far as the two counts of charges under Sections 419 and 420, I. P. C. are concerned, it is no longer possible to convict the petitioner under Section 465, I. P. C.

( 8 ) THE contention seems to be well founded. The implication of the order of acquittal so far as the charge under Sections 419 and 420, I. P. C. are concerned must be that upon the evidence adduced in the case it was not possible to hold that the elements necessary to sustain these charges had been satisfied. Taking these two charges together it must be said that they implied that there was some false representation made by the petitioner on the basis of which the cheating in the two forms covered by Sections 419 and 420, I. P. C. was alleged to have been committed. The element of false representation does not find mention in either of the two charges under Sections 419 and 420, I. P. C. as framed by the learned Magistrate. In any event, it is quite clear from the evidence in the case that the false representation intended to be relied upon by the prosecution in support of two charges related to the fact that the petitioner put himself forward as the owner of the laud when as a matter of fact he was not the owner. That is in substance the false representation in the case upon which the two charges under Sections 419 and 420, I. P. C. were based, although as I have indicated, there is no mention in the charges themselves as to what exactly the false representation was. Taking this to be the false representation said to have been made by the petitioner that he was the owner of the land when as a matter of fact the owner was somebody