The court upheld the conviction for cheating, modifying the sentence to two years, affirming that actions characterized as business transactions can constitute criminal deceit when misrepresentation occurs.

ORDER :

M. NIRMAL KUMAR, J.

The petitioner/accused in C.C.No.59 of 2011 was convicted by the trial Court by judgment dated 14.12.2018 for offence under Section 420 of I.P.C. and sentenced to undergo three years rigorous imprisonment and to pay a sum of Rs.1,09,95,000/- as compensation. Aggrieved against the same, the petitioner preferred an appeal before the Sessions Court in Crl.A.No.4 of 2019. The learned Sessions Judge, by the judgment dated 31.03.2022 dismissed the appeal confirming the conviction and sentence of the trial Court, against which, the present revision is filed.

2.During trial, the petitioner was charged for offence under Sections 406 and 420 of I.P.C. but he was acquitted under Section 406 of I.P.C. and convicted under Section 420 of I.P.C. Further during trial on the side of the prosecution, PW1 to PW16 examined, Exs.P1 to P30 marked. On the side of the defence, the accused examined DW1 and DW2 and marked Ex.D1.

3.The primary contention of the petitioner is that both the Courts below failed to consider that Exs.P1 to P12 are photostat copies, which were objected during trial and the same were marked subject to objection and at the time of final disposal the same can be considered. In this case, no finding has been given in the judgment. He further submitted that the entire case hinges on Ex.P1 dated 21.01.2008, which is a Memorandum of Understanding (MOU) said to have entered between the petitioner and PW1. On a demurrer submitted that it is a business transaction, wherein it was agreed to pay an interest of 12% per annum in addition to share of profit of 50% profit in the business. It is purely a business commercial transaction which was given criminal colour. The original of Ex.P1 not produced and the explanation given is, in Srl.No.8 in the MOU it is recorded that the original will be retained by the accused and the accused destroyed Ex.P1. But no such recording is there. The petitioner was arrested on 10.08.2010, on which day, the petitioner said to have given confession/Ex.P21. In the confession there is no reference to Ex.P1 as to how it was destroyed, admitted by PW16/Investigating Officer in his evidence.

4.He further submitted that the Investigating Officer admits that print and font size in Ex.P1 and complaint/Ex.P13 are identical. According to the petitioner, Ex.P1 is a created document which was issued by some vendor in the name of one Siva. DW2/Sub Registrar confirms that as per Ex.D1, stamp paper it was issued in the name of Siva but in Ex.P1, PW1-Guruprasath name is written. With regard to PW3, PW11 and PW13, Who are said to be similarly cheated by the petitioner, no complaint by them. How PW3, PW11 and PW13 came to know about the case and cited as witness, there is no clarity and explanation. He further submitted that the trial Court acquitted the petitioner from charge of Section 406 of I.P.C. finding that there is no entrustment and the Lower Appellate Court confirmed the same. In this case, on the evidence and materials it is seen that it is purely a business transaction. There were payments received by PW1 from the account of petitioner, which is confirmed by the ICICI Bank Manager/PW14. When it is proved that it is a business transaction, this case cannot be used for the purpose of recovering the dues and no intention of cheating at the inception stage. Default in business transaction cannot be termed as cheating. In this case, business transaction continued for two years, later some defau