The intention to cheat must be present from the inception of the transaction for an offense under Section 420 RPC.

1. The petitioner is stated to have sold 2500 shares of M/s NEPC MICON Ltd. to the complainant for an amount of Rs. 1.00 lac. The said shares were required to be sent to the company for its transfer in the name of purchaser. In lieu of the shares being sold, two cheques for Rs. 50,000/- each were issued in favour of the present petitioner-accused. On presentation of these cheques for encashment, the same were returned un-cashed. It is alleged that the petitioner wrote a letter to the company asking it that he has lost his original shares, as such, duplicate shares may be issued in his name. It is, this letter of the petitioner, which has become basis for filing an FIR against him under Section 420 RPC.

2. The allegations against the petitioner in the challan are that he wrote false letter to the company by requesting it to issue duplicate shares as the original shares have been lost. The investigation in the matter was handed over to the police. Conclusion of the investigation reveals that the petitioner had transferred the shares in the name of complainant, but no payment was received by him from the complainant. The allegation that complainant had paid Rs. 50,000/- to the petitioner was found to be in respect of shares of different company, as the vouchers produced by the complainant relate to the different company called as Jindal Strips ltd. Having failed to encash the cheques, the petitioner wrote false letter to the company, which has construed that the petitioner has intended to cheat the complainant.

3. I have heard learned counsel for the parties and perused the record.

4. In order to ascertain as to whether any offence under Section 420 RPC against the petitioner is made out or not, Section 420 RPC defines cheating as under:

"Cheating

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do omit it he was not so deceived and which act of omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat".

5. A bare reading of the aforementioned section clearly reveals that there are two elements namely deception and dishonest intention to do or omit to do something. In order to bring a case within the first part of Section 420, it is essential, in the first place, that the person, who delivers the property should have been deceived before he makes delivery, and in the second place that he should have been induced to do so fraudulently or dishonestly. Where property is fraudulently or dishonestly obtained, Section 420 would bring the said Act within the ambit of cheating provided the property is to be obtained by deception. It is not necessary that the complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging nor it is necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence.

6. The aforementioned discussion clearly reveals that deception must be from the inception. Applying these texts to the present case, the following facts are to be observed:

7. That the shares were sold by the petitioner to the complainant for an amount of Rs. 1.00 lac and two cheques were issued to him. The said cheques are stated to have bounced and no payment has been received by the petitioner. After having failed to obtain the money from the purchaser, he has written false letter to the company. It is essential that the person, who delivers the property, should have been deceived before he makes the delivery. In essence, it me

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