Cheating under Section 420 IPC requires dishonest intention from inception; initial provision of facilities and institute closure due to voluntary student exits and lack of admissions do not constitute offence.

Judgment :

Sandeep Sharma, J.

Instant criminal appeal filed under Section 378 of Code of Criminal Procedure, lays challenge to judgment of acquittal dated 22.09.2011 passed by learned Additional Sessions Judge, Ghurmarwin, District Bilaspur, Himachal Pradesh (Camp at Bilaspur), in Criminal Appeal No.19/10 of 2008 reversing the judgment of conviction and order of sentence dated 24.09.2008 passed by learned Judicial Magistrate First Class, Court No.1, Ghumarwin, District Bilaspur, Himachal Pradesh, in Case No.5/1 of 1999, whereby Court below, after having held respondent- accused (hereinafter ‘accused’) guilty of his having committed offence punishable under Section 420 of Indian Penal Code, sentenced him to undergo rigorous imprisonment for a period of two years and pay a fine to the tune of Rs.5,000/- and in case of default in paying the fine amount, the accused shall further undergo rigorous imprisonment for three months.

2. Precisely, the grouse of the appellant/State, as has been highlighted in the appeal and further canvassed by Mr. Rajan Kahol, learned Additional Advocate General representing the appellant, is that learned First Appellate Court committed a grave error, while reversing the well reasoned judgment of conviction recorded by the learned trial Court. He states that bare perusal of evidence led on record by the prosecution reveals that prosecution proved beyond reasonable doubt that accused cheated the complainant as well as other students by not providing them Diploma Certificates for which he had taken fees to the tune of Rs.9,000/- and Rs.11,200/- respectively. Mr. Kahol states that though prosecution witnesses turned hostile, but if the cross-examination conducted upon these witnesses is read in conjunction, it clearly emerges that accused had initially lured the complainant and other persons to take admission in his institute, but he, after his having received fee, closed the institute, as a result thereof future of the complainant and other persons was put in jeopardy. While referring to the statements of PW-2 Dineshwar, PW-4 Rakesh Kumar, PW-5 Mohinder Singh, PW-11 Sushil Dutt, PW-19 Rakesh Kumar and PW-20 SI Kewal Singh, Mr. Rajan Kahol, learned Additional Advocate General, attempted to argue that prosecution successfully proved the guilt of the accused beyond reasonable doubt, as such, there was no occasion, if any, for the First Appellate Court to reverse the well reasoned judgment of conviction recorded by learned trial Court.

3. To the contrary, Mr. Vijay Singh Bhatia, learned counsel for the accused, while supporting the impugned judgment of acquittal recorded by the First Appellate Court, contended that none of the prosecution witnesses supported the case of the prosecution. While referring to the statement of PW-15 i.e. complainant, Mr. Bhatia, stated that afore witness himself admitted that he had voluntarily left the institute and the allegations levelled in the complaint lodged at his behest were not correct. He submitted that since none of the prosecution witnesses supported the case of the prosecution, there was no occasion, if any, for the learned trial Court to hold the accused guilty of his having committed offence punishable under Section 420 of Indian Penal Code. He stated that since in the case at hand, prosecution failed to prove the ingredients of of Indian Pena