Deception is an essential ingredient of the offence of cheating under Section 415 of the Indian Penal Code.

1. This is an application under Section 561-A, Criminal Procedure Code, moved by the applicant for quashing the proceedings pending in the court of the Munsif Magistrate, Fatehabad on the basis of a complaint for an offence under Section 417, Indian Penal Code. The complainant, as partner of a firm of commission agents, filed the complaint on the following allegations. That the accused who is a merchant and commission agent carrying on business at Palghat in Keral, placed an order with the complainant for purchase of 220 quintals of Pea pulse, and for despatching the same to the accused at Palghat. The complainant quoted the price and after its having been accepted by the accused, purchased the goods and despatched them through the railway. The Hundis were sent through the State Bank of India and the railway receipts were also sent with the same. They were to be delivered to the accused on payment of the price of the goods. The accused did not honour the Hundis and did not take delivery of the goods. The complainant made every effort to make the accused pay the amount, but he did not do so, and as in the mean time the market had gone down, the complainant suffered a loss to the extent of Rs. 1,500/-. On these allegations it was alleged that the accused had committed on offence under Section 417, Indian Penal Code.

2. The learned Counsel appearing for the accused applicant has urged that the complaint does not make out any offence against the applicant and, hence, the court of the Munsif Magistrate has no jurisdiction to continue with the case. The learned Counsel appearing for the complainant, on the other hand, has contended that the ingredients of Section 415 have been detailed in the complaint and they make out an offence under Section 417, Indian Penal Code. Section 415, Indian Penal Code reads as under :-

"Whoever, by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent the any person shall retain any property to intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so received, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation, or property, is said to "cheat".

Explanation - A dishonest concealment of facts is a deception within the meaning of this Section."

As pointed out by the Supreme Court in Ram Jas v. The State of U.P., (1971) 2 : SC Cri R 31 : (1971 Cri LJ (N) 12) the ingredients required to constitute the offence of cheating are :-

(i) There should be fraudulent or dishonest inducement of a person by deceiving him;

(ii) (a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or

(b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and

(c) In cases covered by (ii)(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."

3. The first element necessary for constituting an offence of cheating is a deception of the complainant by the accused. Unless there is deception the offence of cheating cannot be made out. After deception has been practised, the person deceived should get induced to do or omit to do something. In the present case, although it is alleged that the complainant had been induced to purchase the goods and despatch them to the accused, no fact has been mentioned which might constitute deception.

4. Deception has in it the element of misleading of making a person believe something which is not real. It implies causing of a person to believe as true something that is false. According to the Webster's New International Dictionary the word 'deceive' indicates "inculcating of one so that he takes the false as true, the unreal as existent, the