Deception must be present at the inception of a transaction for the offense of cheating under Section 415 of the Indian Penal Code.

JUDGMENT

(Prayer: Criminal Appeal is filed under Section 378(4) of Cr.P.C., to call for the records in C.C.No.630 of 2007, and set aside the judgment of acquittal passed by the learned Judicial Magistrate No.VII, Coimbatore, dated 28.10.2013.)

1. This Criminal Appeal is arising out of acquittal of the respondents/Accused Nos.1 to 3 passed by the learned Judicial Magistrate No.VII, Coimbatore, in C.C.No.630 of 2007, dated 28.10.2013.

2. For the sake of convenience, the appellant and the respondents are referred to as 'complainant' and 'accused', respectively.

3. The brief facts of the case, as projected by the prosecution, are as follows:

(i) Accused Nos.1 to 3 and one N.Pachiammal and S.Palaniammal/Accused Nos.4 and 5 are the owners of the land comprised in S.F.No.834/1, to an extent of 14.90 Acres, situated at Chettipalayam Village. All the accused agreed to sell the property to the complainant for a sale consideration of Rs.2,23,500/-. On 06.07.1992 all the accused executed an agreement for sale after receiving advance amount of Rs.15,000/-. Ex.P.1 is the Agreement for Sale. Thereafter, the complainant had paid balance sale consideration on various dates. Ex.P.7 series are the Receipts. After receiving the entire amount, on 09.03.1994, all the accused issued Ex.P.2 Receipt and executed a Power of Attorney in favour of the complainant with respect to the above said property. Ex.P.3 is the Power of Attorney. Thereafter, the complainant spent huge sum and formed a layout in the property, divided into plots and sold 129 sites to various persons and 54 sites were remaining for sale.

(ii) In the meanwhile, all the accused cancelled the Power of Attorney, through a registered cancellation deed, dated 16.03.2007. Ex.P.6 is the Cancellation Deed. Thereafter, the accused sent Ex.P.4 Notice to the complainant on 19.03.2007, for which, the complainant sent Ex.P.5 Reply Notice. Exs.P.8 to P.11 are the Balance Sheet of Jay Jay Associates, owned by the complainant, Income Tax Returns and Balance Sheet. All the accused after receiving entire sale consideration with an intention to cheat the complainant, cancelled the Power of Attorney.

(iii) During the pendency of trial, the said N.Pachiammal and S.Palaniammal/Accused Nos.4 and 5 died and therefore, charge against them stood abated.

4. Before the trial Court, on the side of prosecution, P.Ws.1 and 2 were examined and Exs.P.1 to P.11 were marked, no material object was produced. On completion of examination of the witnesses on the side of the prosecution, the accused were questioned under Section 313(1)(b) Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied them as false. On behalf of the defence, no witness was examined, but Exs.D.1 to D.8 were marked as defence documents.

5. Considering the evidence available on record, the learned Judicial Magistrate No.VII, Coimbatore, by judgment dated 28.10.2013, found the accused not guilty for the offence under Section 420 I.P.C. and acquitted them, as the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Challenging the said judgment of acquittal, the complainant has preferred this appeal.

6. The learned counsel for the complainant submitted that the complainant entered into an agreement for sale with the accused on 06.07.1992 in respect of a property owned by the accused in Chettipalayam Village, to an extent of 14.90 Acres. The sale consideration was fixed as Rs.2,23,500/- i.e., Rs.15,000/- per Acre and on the day of entering into sale agreement, an advance of Rs.15,000/- was paid to the accused by the complainant. The entire sale consideration was paid in parts on various dates between 08.10.1992 and 27.02.1994. On receipt of entire sale consideration, the accused executed a registered Power of Attorney in the name of the complainant on 09.03.1994 to deal with the property. Thereafter, the complainant made plots on the sai