The central legal point established in the judgment is the requirement of proving fraudulent or dishonest intention at the beginning of the transaction for the offence of cheating, and the significance of entrustment for misappropriation.

JUDGMENT :

DEEPAK ROSHAN, J.

1. Heard learned counsel for the parties.

2. This revision application is directed against the judgment dated 26.5.2003 passed by learned 2nd Additional Sessions Judge, Chaibasa in Criminal Appeal No. 3/1995; whereby the judgment of conviction and order of sentence, both dated 21.12.1994, passed by the learned Judicial Magistrate, 1st Class, Porohat at Chaibasa corresponding to G.R. No. 191/1989, in Trial No. 18/94; whereby the petitioner was convicted and was sentenced to undergo R.I. for two years for the offence under Sections 406 IPC; has been affirmed and the appeal filed by the petitioner was dismissed.

3. The prosecution case in short is that Shri S.S. Prasad the then B.D.O. cum C.O. Bandgaon (Singhbhum West) lodged the first information report of this case at Keraikella P.S. on 6.7.1989 stating therein that the petitioner/accused Jitu Ram Purty entered into an agreement on 23.5.1988 with the Circle Office, Bandgaon to dig ten wells under Jaldhara Scheme and in the said agreement he gave address of his house at Bhalu pani but during service of notice upon him he was found to be resident of village Karudih. It has further been stated that as per the agreement petitioner had to complete the work of the entire ten schemes by 30.6.1988. The petitioner was also paid Rs. 5,000 each for each Yojona scheme bearing No. 1/88-89 to Yojona Scheme 10/88- 89. Thus, he was paid Rs. 50,000/- in advance under the aforesaid schemes. It is further stated that the accused did not initiate the work in any of the said scheme and he was also sent notice dated 2.12.1988, 15.5.1989 and 1.6.1989, but even then, the accused did not initiate the work in any of the said schemes. It is further stated that thus the accused misappropriated the Government money and also violated the terms and condition of the agreement, so it was requested to take legal action against the accused.

On the basis of the written report, the instant case was registered and after investigation police submitted charge-sheet. Accordingly, charge was framed against the petitioner for which he pleaded not guilty and claimed to be tried and finally he was convicted.

4. Mr. Vibhor Mayank, learned counsel for the petitioner assisted by Ms. Apurva Pathak submits that for the purpose of Section 405 and Section 406 the prosecution is required to prove that there was dishonest intention right from the very beginning i.e. right from the very inception of the transaction. The prosecution is also required to prima facie establish that there was intention on part of the accused to cheat and deceive right from the very inception and on account of such act of cheating the complainant has suffered a wrongful loss and the same has resulted in wrongful gain to the petitioner.

Since the petitioner entered into an agreement on 23.05.1988 and the petitioner was required to dig 10 wells for which an advance of Rs. 5,000/- was given to the petitioner for each well and the petitioner had completed the work up-to the level for which advance was paid to him; however; since the Circle Officer stopped paying him money, he could not complete the work.

PW-5 has specifically stated that the petitioner had carried out certain work; however, these were not satisfactory. Thus, it is one thing to say that the petitioner did not carry out any work and it is another thing to say that some work was carried out by the petitioner. It shows that petitioner had the intention to complete the work and thus this is not a case of dishonest intention right from the very beginning.

Learned counsel further contended that the issue was purely civil dispute as the same was mere breach of contract; as such no criminal liability can be fastened upon the petitioner.

He further submits that PW-2 is a Junior Engineer of the block, who stated that he took the measurement of the wells on 06.06.1989 and entered in the measurement book, however, the measurement book was never brought on record. The measurement book c