Mere breach of contract does not constitute the offence of cheating under Section 420 of the Indian Penal Code in the absence of fraudulent or dishonest intention right from the beginning of the transaction.

MRINAL KANTI SINHA, J.

1. THIS appeal has been directed against the judgment and order passed by Sri I.C. Das, Learned Judicial Magistrate, 1st Class, Bolpur, Birbhum in C. Case No.35 of 1976 whereby the respondent/accused was acquitted from the charge under Section 420 of the Indian Penal Code.

2. IT was the case of the appellant/complainant that the respondent/accused Sadhan Chandra Ghosh's wife Madhabilata was the owner of plot no.115 of Mouza Gomai within Nanoor Police Station, locally known as 'Balaipurer Math'. The respondent on behalf of his wife Madhabilata agreed to sell .47 decimals land of Gomai Mouza to the appellant/complainant party at Rs.3100/- for which two sale deeds were written and advance of Rs.2755/- was taken by the respondent from the appellant. The respondent took those two deeds for registration of the same after obtaining the signature or L.T.I of his wife but thereafter no sale deed was registered by the respondent in favour of the appellant party. Thereby the respondent committed criminal breach of trust and cheating. Hence, the complainant filed the said complaint case on 12.4.1976.

3. IT appears that after receipt of the complaint cognizance was taken and process was issued against the respondent under Section 420 of the Indian Penal Code. The accused appeared and was released on bail.

4. IN support of his case the appellant examined eight witnesses. Thereafter charge was framed against the respondent under Section 420 of the Indian Penal code. The accused pleaded not guilty to the charge and claimed to be tried. Thereafter the witnesses of the appellant were cross-examined by the defence and complaint's evidence was closed. Then the accused was examined under Section 313 of the Code of Criminal Procedure. The defence adduced no defence evidence but from the cross-examination of the prosecution witnesses as well as from the examination of the accused under Section 313 of the Code of Criminal Procedure the defence case appeared to be the denial of the complainant's case and it was also the case of the defence that the respondent has falsely been implicated in this case. Thereafter argument of the parties was heard in full and judgment was delivered by the learned Trial court finding the accused not guilty under Section 420 of the Indian Penal Code and he was acquitted and discharged from his bail bond.

5. IT is to be considered as to whether the learned Trial court was legally correct in his finding that the respondent was not guilty for the alleged offence under Section 420 of the Indian Penal Code and whether the learned Trial Court was legally correct and justified in passing the said judgment and order of acquittal of the respondent.

6. MS. Mayukhi Mitra, learned counsel appearing for the appellant as amicus curiae has submitted that the impugned order of acquittal is not based on facts and circumstances of the case as according to the petition of complaint the disputed land is situated at Gomai Mouza but at the time of his deposition P.W.1 has stated that the accused approached him for selling the land of 'Balaipur Field' and because of the representation of the respondent the appellant had to part with a sum of Rs.2755/- to the respondent, but as there was no written document of contract which required enforcement, so no civil action could have been taken by the appellant and the learned Trial Court was not also correct to hold that the dispute was a dispute of civil nature and it is the choice of the aggrieved person to decide whether he would move the criminal court or the civil court and there was no application of mind by the learned Trial court at the time of delivering the impugned judgment and order.

7. MS. Rituparna De, learned counsel appearing for the respondent as defence counsel has submitted that the respondent allegedly proposed to sell land of his wife which was not his own land, and as allegedly there was contract between the parties regarding sale of land and subsequent