The central legal point established in the judgment is the requirement to prove inducement and fraudulent dishonest intention in a loan transaction to establish the offense of cheating under Section 417 of the Indian Penal Code.

JUDGMENT

1. Heard learned counsel for the petitioner.

2. The complainant is the petitioner herein seeking special leave to appeal under Section 378(4) of the Criminal Procedure Code, 1973 against the judgment of acquittal dated 16.01.2018 passed in C.P. Case No. 569 of 2015 (T.R. No. 1401 of 2018) by the learned Judicial Magistrate 1st Class, Dhanbad where under the sole accused, opposite party no.2 herein has been acquitted under Section 417 of the Indian Penal Code.

3. As per the complainant, friendly loan of Rs. 2,00,000/- was given to the accused for the purpose of purchasing car through cheque no. 317002 SBI, Dhanbad, which was encashed by him as well. However, even after 1 years he did not return the money and did not even bother to reply to the legal notice dated 28.01.2015 as also the reminder letter. After inquiry, summons were issued by the learned Magistrate. On appearance of the accused, substance of accusation was explained under Section 417 of the I.P.C to which he pleaded not guilty and claimed to be tried.

4. The complainant examined himself as C.W.1 and stated that the accused came to his house and asked for a loan of Rs. 2,00,000/- with the assurance to return it after buying vehicle. Rs. 2,00,000/- was given through cheque no. 317002, which was encashed on 09.09.2013. He kept on evading the return of the money. He did not reply to the legal notice dated 28.01.2015 and reminder dated 06.02.2015. The cheque was given in front of his wife who died on 06.08.2014. Complaint petition was marked as Ext. 1; legal notice dated 28.01.2015 and the reminder letter dated 06.02.2015 were marked as Ext.2 and 2/1; postal receipt dated 28.01.2015 and 06.02.2015 were marked as Ext.3 and 3/1; letter dated 28.01.2015 and 06.02.2015 returned from post office were marked as Ext.4 and 4/1; photo copies of the bank pass book statement were marked as Ext.X and X1. In his cross examination, he had stated that he retired from BCCL in the year 2012. He could not state whether he had mentioned about the said amount in the cheque in his income tax return for the year 2013-14.He admitted in para 26 and 29 of the cross examination that he was previously acquainted with the accused and no inducement was given by the accused to advance loan to him. He also admitted that there was no endorsement of postal peon on the said notice and does not bear the signature of any witness.

5. Learned Trial Court heard the parties and after analysis of the evidences on record came to the finding that ingredient of inducement right from the beginning of the transaction was not proved. There was no evidence that the accused had fraudulently induced the complainant to give the loan. There was no agreement on record as to on which basis complainant had advanced loan to the accused person. The accused had denied receipt of any notice and in fact asserted that the said amount were advanced by the accused to the complainant who had been returned it to the accused through the alleged cheque. As such the ingredient of dishonest intention right at the beginning of the transaction for attracting Section 417 of the I.P.C was missing, as mere breach of contract cannot give rise to criminal prosecution. Accordingly, the accused was acquitted of the charge.

6. Learned counsel for the petitioner has submitted that receipt of Rs. 2,00,000/- through cheque was proved by the complainant through the copies of the bank statements. The accused had failed to show return of money. This was an act of cheating. As such, learned Trial Court has committed an error in acquitting the accused.

7. We have considered the submission of learned counsel for the petitioner and perused the impugned judgment. We find from the discussion of the evidences on record in the light of the allegation made in the complaint that ingredient of inducement in the advancement of loan were missing. The complainant had not adduced any agreement to substantiate the nature of transaction between the parties. This