A mere breach of contract does not constitute an offence of cheating under IPC; deception and fraudulent intention must be proven.

JUDGMENT :

SUBHASH CHAND, J.

1. The instant criminal revision has been directed against the judgment dated 29.02.2016 passed by the learned Additional Sessions Judge-I, Saraikella in Criminal Appeal No. 94 of 2013 whereby and whereunder while dismissing the appeal upheld the judgment of conviction and sentence dated 12.06.2013 passed by the learned Chief Judicial Magistrate, Saraikela in G.R. Case No. 520 of 2009 (T.R. No. 910 of 2013) convicting the petitioner under section 420 of the Indian Penal Code and sentencing him with rigorous imprisonment for 2 years alongwith fine of Rs.1,000/- and in default of payment of fine further simple imprisonment of 3 months has been directed to undergo.

2. The brief facts of prosecution case giving rise to this criminal revision are that the accused Satish Kumar Sahu came to the house of informant and expressed his intention to sell the land of plot no. 1709/1787, Khata No. 124, measuring area 0.30 decimal (12 katha), Thana No. 45, Mouza Kandra, PS Gamharia, District Saraikella at the rate of Rs.24,000/- per katha. The informant agreed to purchase the land at the very rate and paid Rs.38,500/- on different dates. The accused executed an agreement to sale and also promised to execute the sale deed within three months but the accused did not reach to the Registry Office to execute the sale deed in favour of the informant as was agreed. In the meantime, the accused has also given permission to the Airtel mobile company for erection of mobile tower on the very land under an agreement without any consent of the informant. When the informant visited the said land, he found the work was in progress for erection of the mobile tower on the very land. Same was opposed by the informant but was told by the accused persons that the sanction of mobile tower has been accorded. The informant asked the accused to execute the sale deed in his favour in compliance of the agreement to sale but he paid no heed at all rather accused warned to the informant not to insist for execution of sale deed in failure to face the dire consequences. Hence on this complaint by the order of CJM concerned, Adityapur P.S. Case No. 157 of 2009 was registered against the accused Satish Kumar Sahu for the offence under sections 420, 467, 468, 120B of IPC. The investigating officer after having concluded the investigation filed charge-sheet against the accused for the offence under sections 420, 467, 468, 120B of IPC.

3. The court of CJM, Saraikella took cognizance on the charge-sheet and framed charge against the accused for the offence under sections 420, 467, 468, 120B of IPC. The charge was also read over and explained to the accused who denied the charge and claimed to face the trial.

4. On behalf of prosecution to prove the charge against the accused in oral evidence examined altogether five witnesses, PW-1 Ratan Kumar, PW-2 Indradeo Paswan, PW-3 Rajnish Kumar Mishra, PW-4 Sajjan Kumar Paswan and PW-5 Basistha Rabidas and in documentary evidence filed application under section 156(3) of Cr.P.C. agreement to sale Exhibit-1, signature of witness on the agreement paper Exhibit-1/1, money receipt Exhibit-2, Exhibit 2/1 & 2/2, Exhibit-4 signature of Sajjan Kumar Paswan on the FIR and complaint Exhibit-4/1, FIR Exhibit-5.

5. The statement of accused under section 313 of Cr.P.C. was recorded who denied the incriminating circumstances in evidence against him and stated himself to be innocent.

6. On behalf of accused no evidence was adduced in defense.

7. The learned trial court after hearing the rival submission of learned counsel of parties acquitted the accused from the charge of 120B, 467 and 468 of the Indian Penal Code and convicted for the charge under section 420 of IPC and sentenced with imprisonment of 2 years RI and a fine of Rs.1,000/- and in default of payment of fine further simple imprisonment of 3 months was directed to undergo.

8. Aggrieved from the impugned judgment of conviction and sentence passed by the learned trial cour