1981 Supreme(MP) 402

S. K. Seth, J.
Tahal Singh v. State of M.P.
Cr. Revn. No. 647 of 1980 (J); Decided on 22-7-1981.

Headnote:Penal Code, 1860 -- S. 420 -- offence under -- when constituted -- dishonest intention at the time of making the promise is necessary -- subsequent failure to fulfill the promise Is -- not sufficient -- such failure gives rise to civil action only.

        Accused Salvador Bourdon had sold his plot measuring 25X25 to accused/applicant Sardar Tahal Singh vide registered sale deed dated 9-6-1969 (Ex. P/2). The same plot was later on sold by accused/applicant Tahal Singh to the complainant vide registered sale deed dated 18-11-1972 (Ex. P/l). It had been represented by accused/applicant Tahal Singh before making the sale in favour of the complainant that he was in possession of the plot. A couple of months after the sale, the complainant asked the accused/applicant to hand over possession of the plot to her. However, when the accused/applicant alongwith accused Salvador Bourdon went to hand over possession of the plot to her, it was found that the said plot was in possession of one Nadeen Khan. On enquiry Nadeen Khan informed that he had purchased the plot from the sister of accused Salvador Bourdon, Indira Ghoshal. The two accused persons told the complainant that they would give her some other plot. However inspite of repeated reminders, no such other plot was given to her by the accused persons.

        Held: It was not the case of the complainant that Salvador Bourdon or the accused/applicant had no title in respect of the plot. It was also not the case of the complainant that the accused Salvadore Bourdon had not deLi"Vered the possession of the plot to the accused/applicant when he executed sale deed Ex. P/2 in his favour There was no evidence adduced on behalf of the complainant as to since when Nadeen Khan was in possession of the plot and whether any sale deed as alleged had in tact been executed by the sister of accused Salvadol Bourdon in favour of Nadeen Khan.

        It needs no saying that dishonest intention at the time of making of promise is necessary to constitute cheating and that such intention cannot be inferred from subsequent failure to fulfill the promise. Even assuming the facts stated by the complainant to be substantially correct no inference of dishonest intention at the time of making the promise could be drawn against accused person. In fact the dispute raised was purely of a Civil nature and the criminal proceedings initiated by the complaint were an abuse of the process of the Court. It is shocking and surprising that the Courts below dealt with the matter in casual and superficial manner, without giving serious thought to the questions as to what were the ingredients of the offence alleged against the accused persons and whether the allegation made by the complainant or the evidence produced by her stood the test of the said ingredients. Revision allowed to. Conviction quashed.