The main legal point established is that for the offence of cheating under Section 420 IPC, there must be evidence of fraudulent or dishonest intention at the time of making the promise, and a mere failure to keep the promise subsequently cannot be presumed as an act leading to cheating.

( 1 ) BY these criminal miscellaneous petitions under Section 482 of the code of Criminal miscellaneous petitons under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code" hereinafter), the petitioners have assailed the orders dated 10-1 -2006 passed by the Additional Sessions Judge No. 2, Sri ganganagar (for short, "the Revisional court" hereinafter) in Criminal Revision Nos. 67/2005 and 28/2005 respectively, whereby the revision petitions filed by the petitioners against the order dated 13-12-2004 passed by the Chief Judicial Magistrate, Sri ganganagar (for short, "the trial Court" hereinafter), were dismissed.

( 2 ) I have heard learned counsel for the parties. Carefully gone through the orders passed by the trial Court as well as the revisional Court.

( 3 ) A complaint was lodged by non-petitioner No. 2 roshan Lal Kataria against the present petitioners and one Mahendra alleging therein that they are doing business in the name and style of "nova Refrigeration industry" and co-accused Mahendra and petitioner Sudheer Arora came to his shop and took orders for supply of various items. The items/goods were to be supplied by 5-5-2003 and a sum of Rs. 20,000/- in cash and a cheque of Rs. 80,000/- were given by the complainant to the accused. However, the supply of goods were not made on the stipulated date of 5-5-2003. On repeatedly contact on telephone, the accused supplied some of the items of poor quality valuing rs. 85,120/ -. Thereafter petitioner Mewa singh came to his shop and assured that the remaining goods will be supplied and the original parts will be replaced in place of duplicate/defective parts and the remaining payment of Rs. 24,800/- will be paid to the complainant. However, the accused did not adhere to their promise and thereby committed the offence punishable under section 420, IPC. The learned trial Court, after recording the evidence and hearing the parties, took cognizance of the offence under section 420, IPC against the petitioners and co-accused Mahendra vide order dated 13-12-2004. The petitioners preferred revision petitions, which have been dismissed by the learned Revisional Court vide impugned order dated 10-1-2006.

( 4 ) IT is contended by the learned counsel for the petitioners that right from the inception, neither there was any inducement nor a dishonest or fraudulent intention of the part of the petitioners and, therefore, the Courts beiow have erred in taking cognizance of the offence under Section 420, ipc against the petitioners Learned Public prosecutor and the counsel appearing for the complainant supported the orders passed by the Courts below.

( 5 ) TO construe an offence of "cheating", it is essential that whoever, by deceiving any person, fraudulently or dishonestly induces the person so decevied to deliver any property to any person or to consent that any person shall retain any property, or interntionally induces the person so deceived, to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to have "cheat".

( 6 ) IN the instant case, there is absolutely no evidence that the petitioners fraudulently or dishonestly ever induced the complainant.

( 7 ) IN S. W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 : (2001 Cri LJ 4765 para 21), the Honble Supreme Court held that for construing an offence under Section 420, ipc, it is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.

( 8 ) IN K. C. Builders v. Assistant commissioner of Income-tax, (2004) 2 SCC 731, the Apex Court held that it is settled law that for establishing the offence of cheating, the complainant is required to show that the accused