Dishonest intention at the time of making the promise is an essential element of the offence of cheating under Section 420, IPC.

This Revision case has been filed by the revision petitioner who was accused in C.C. No. 400 of 1990 on the file of the Judicial Magistrate No. II, Chengalpattu and appellant in C.A. No. 53 of 1994 on the file of the Sessions Judge Chengalpattu challenging the findings of conviction passed by both the Courts below.

2. The Inspector of Police, District Crime Branch, Kancheppuram has filed a charge-sheet against the accused who is the revision petitioner herein alleging that on 4/9/1984, he passed a cheque for Rs. 7, 500/- dated 1-9-1984 to one T. Ashok Kumar and that on 15-8-1985 he passed another cheque for Rs. 10, 000/- to the said Ashok Kumar and both the cheques have been bounced and thereby the accused was liable under Section 430(ii), IPC.

3. The Trial Court on the culmination of trial found the accused guilty under Section 430, IPC convicted and sentence to undergo RI for three months and to pay of fine of Rs. 500/- for each count of said offence. On appeal, the learned Sessions Judge, Changalpattu confirmed the conviction and sentence and dismissed the appeal.

4. The learned counsel appearing for the petitioner has argued that the cheque dated 1-9-1984 for a sum of Rs. 7, 500/- was passed on 4-9-84 and the cheque dated 15-8-1985 for Rs. 10, 000/- was passed on 15-8-85 and both of them were drawn in the name of T. Ashok Kumar for the amount which the revision petitioner owed in the business transaction. It is not in dispute that T. Ashok Kumar and the revision petitioner herein had business transactions and both the cheques marked as Exs. P1 of P2 have been issued in favour of T. Ashok Kumar in respect of the said transactions. The learned counsel for the revision petitioner has argued that no ingredients are made out to make out an offence under Section 120, IPC against the revision petitioner and to substantiate that contention, he has submitted a catena of decisions. In P. C. Cheriyan v. Kuruvilla reported in 1966 Madras Law Journal (Criminal) 273, at 274, the Kerala High Court held as follows:

"The conviction, do not think can be sustained because the elements of cheating have not been brought out in the case. The drawing up of a cheque does not imply in the cheque for he may either have authority to overdraw or have an honest intention of paying in the necessary money before the cheque can be presented.

(Vide Kanwa Singh v. The Crown) A post dated cheque is a mere promise to pay on future date and the fact that the cheque is dishonoured which amounts only to broken promise is not a "criminal offence".

"Giving of a cheque in lieu of money already due with the knowledge that the drawer has no funds in the bank does not amount to an offence but is only a civil wrong".

(vide Ratna v. Ganesh Das. But if a person gives a cheque which is dishonoured and from the circumstances could be presumed that he must have been aware that the cheque would be dishonoured, he would be guilty under Section 420.

"This decision, is aptly applicable to the instant case, as the cheques have been issued for a debt which was in existence even prior to the issuance of the cheques and as such the accused had no intention to cheat the said Ashok Kumar and thereby dishonestly induced him to deliver the property.

5. In M. S. Natarajan v. Ramasis Shaw, reported in 1995 CrLJ 2011, the Calcutta High Court held as follows"

So during the time of the transaction there was no inducement. If there was no inducement at the initial stage, subsequent inducement will not constitute the offence under Section 430 of the Indian Penal Code. As there was no initial inducement in this case, the case under Section 430, I.P.C. is not maintainable.

"In the instant case also there was no inducement at the time of the business transaction and as such, the act of the accused will not constitute an offence under Section 420, IPC.

6. In State of Kerala v. Pareed Pillai the Apex Court held as follows (at page 1247; of Cri LJ)" *

To hold a person guilty of the offence of chea