R. Narayana Pisharadi, J.

1. This application for anticipatory bail is filed under Section 438 of the Code of Criminal Procedure, 1973.

2. The petitioners are the first and the second accused in the case registered as Crime No. 1218/2016 of Peringome police station under Sections 420, 406, 306 and 201 read with 34 I.P.C.

3. Baby, the father-in-law of the informer, was conducting a provision and stationery shop. On 21.08.2016, at about 20.15 hours, he closed the shop and left there. Since he did not reach home even by late night, his relatives made enquiries about him. On that night, that is, on 22.08.2016 at about 00.15 hours, his body was found hanging on a mango tree in his property. On the basis of the statement given to the police by the informer, Crime No. 1218/2016 of Peringome police station was registered under Section 174 Cr.P.C. During the investigation, a suicide note was found out. It is stated in the suicide note that the petitioners and one Augustine (the third accused) are the persons responsible for the suicide. During the investigation, it was revealed that the deceased had got the suicide note prepared by an Advocate Clerk. A complaint addressed to the Sub Inspector of Police, Cherupuzha police station by the deceased was also found out. The deceased had got this complaint also prepared by the same Advocate Clerk. Later, the case was converted to one under Sections 420, 306, 406 and 201 read with 34 I.P.C.

4. According to the prosecution case, the deceased had advanced a loan of Rs. 10,00,000/- to the first accused. He had also given an amount of Rs. 14,00,000/- to the second accused, who is the son of the first accused, as advance for purchasing the property of the second accused. The first accused did not repay the money to the deceased. It is also alleged that the second accused did not execute sale deed of the property in favour of the deceased and that he was also not ready to return the amount of advance to the deceased. The first accused had executed a document in favour of the deceased as security for the loan availed of by him from the deceased. It is alleged that the third accused had managed to get back this document from the deceased under the guise of a mediator. According to the prosecution, the deceased committed suicide on account of the mental pain and agony caused to him by the petitioners by their acts of cheating. The prosecution alleges that the accused had abetted commission of suicide by the deceased.

5. Heard learned counsel for petitioners and the learned Public Prosecutor. Perused the case diary.

6. The offence punishable under Section 420 I.P.C is alleged against the petitioners for the reason that the first petitioner did not repay the amount borrowed by him from the deceased and that the second accused did not execute sale deed in favour of the deceased pursuant to the agreement entered into by him with the deceased. Even if it is accepted that the first petitioner failed to repay the amount to the deceased and that the second petitioner failed to execute the sale deed in favour of the deceased, prima-facie, such acts amount to only acts of breach of promise or contract.

7. The prosecution has no case that the deceased had given the entire sale consideration to the second accused and even after payment of the entire sale consideration, the second accused did not execute the sale deed in favour of the deceased.

8. The essential ingredients to attract Section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and (iii) mens rea of the accused at the time of making the inducement. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. Distinction between mere breach of contract and cheating would depend upon the intention of the accused at the time of alleged inducement. If