The prosecution must prove dishonest and fraudulent intent to establish cheating under Section 420, Penal Code, and the burden of proof lies with the prosecution.

Harries, C.J.

[1] This is an appeal by one Matilal Chakravarti who was convicted by a learned Additional Presidency Magistrate of an offence Under Section 420, Penal Code and sentenced to undergo one year's rigorous imprisonment and to pay a fine of Rs. 500. In default of payment of the fine he was ordered to undergo a further period of six months' rigorous imprisonment.

[2] The complainant in the case carried on business in the firm name of the Indo Trading Company with offices at No. 11, Netaji Subhaa Road. According to the complainant the appellant Matilal Chakravarty accompanied by one Amarriath Bhattacharyya, who was known to the complainant, came to him and offered to sell him 100 shares of the Indian Steamship Company. The case was that it was represented to the complainant that the shares had belonged to the appellant and that Amarnath Bhattacharyya had obtained them from him and was desirous of disposing of them. The complainant agreed to buy these shares and paid the price of them by cheque and the date of the cheque was 20th June 1947 which, from the evidence, must have been the date on which the transaction was entered into.

[3] On 2nd July 1947 the complainant alleges that the appellant and Amarnath Bhattacharyya again came to him and offered to sell 100 shares of the Indian Iron & Steel Company representing that the shares belonged to Bhattacharyya and that he had obtained them from the appellant. The shares were bought by the complainant and paid for.

[4] When the complainant took steps to have the transfers of these shares registered it was discovered that the share scrip had been stolen. It appears that the complainant had sold the shares which he had purchased to a third party and eventually that third party brought criminal proceedings against the complainant, the present appellant and Bhattacharyya charging them with an offence Under Section 411, Penal Code. This case however was compounded.

[5] The complainant then brought these proceedings against the appellant and Amarnatk Bhattacharyya as his co-accused alleging that he had been cheated and deceived into buying these shares and consequently the accused persons were guilty of an offence Under Section 420, Penal Code. During the course of the proceedings the complainant compounded the offence with Amarnath Bhattacharyya and the case then proceeded against the appellant alone.

[6] A body of evidence was called to show that the scrip of these shares had been stolen and that the appellant had no ownership in them. The complainant himself gave evidence and stated that it was represented to him that the shares had originally belonged to the appellant and that as a result of those representations the complainant purchased the shares from Amarnath Bhattacharyya who, it was said, had obtained them from the appellant. Upon those facts the learned Magistrate convicted the appellant of cheating and sentenced him as I have indicated.

[7] I have always suspected that charges of cheating are made in the Presidency Magistrate's Courts when there is really no desire to punish the offender. Such charges are often made with a view to obtaining quick payment and the history of these cases establishes, I think, beyond all doubt that these criminal charges were made not with a view to having the guilty persons punished, but were made with a view to obtaining compensation for the loss which the complainants had suffered. As I have said, the first complaint made was against the complainant in the present case, the appellant and Amarnath Bhattacharyya and when the complainant in that case was offered compensation for his loss the case was promptly compounded. In the present case it is clear that Amarnath Bhattacharyya must have offered the complainant some compensation because the case against him was compounded and it proceeded only against the appellant. However, it matters not what the motive was in bringing these proceedings. If the appellant has been proved to be guilty h