To constitute an offence under Section 420 IPC, dishonest intention must exist at the inception of the transaction; absent such proof, a mere breach of contract does not constitute cheating, and an appellate court will not disturb a concurrent finding of acquittal unless it is perverse or legally untenable.

1. This acquittal appeal has been preferred by the appellant/complainant against the judgment dated 22.09.2016 passed by the learned 4th Additional Sessions Judge, Raipur, C.G. in Criminal Appeal No.182/2015 affirming the judgment dated 23.07.2015 passed by the learned Additional Chief Judicial Magistrate, Raipur, C.G. in Criminal Case No.430/2011 whereby the respondent has been acquitted of the offence punishable under Section 420 of Indian Penal Code (in short, ‘IPC’).

2. Case of the prosecution, in brief, is that appellant/complainant- Nilesh Chauhan lodged a written complaint (Ex.P-1) alleging that the respondent- Bharat Kumar Hotwani, representing himself to be the owner of land situated at Village Labhandi, Patwari Halka No.113, Ashoka Vihar, Khasra No.427/2 (part), Plot No. E-1, admeasuring 10,500 square feet, agreed to sell half portion thereof measuring 5,250 square feet for a total consideration of Rs.14,96,250/- on 28.06.2010. It is alleged that the agreement was executed at the residence of the complainant in the presence of witnesses PW-2 Kripal Singh and PW-3 Sachin Jethwa, whereupon a sum of Rs.1,32,250/- was paid in cash and the remaining consideration was paid through three cheques. The agreement was thereafter notarized and the respondent handed over relevant land documents to the complainant. It is further alleged that despite repeated requests, the respondent avoided execution of the registered sale deed. On 19.01.2011, upon visiting the disputed land, the complainant came to know that the same had already been sold to one Hiraben Patel, which fact was subsequently confirmed from the Tahsil office. It is also alleged that the respondent dishonestly induced the complainant/appellant to pay the amount and thereafter sold the land to a third party. On the basis of said written complaint (Ex.P-1), FIR (Ex.P-2) was registered against the respondent and after due investigation, charge-sheet was filed against the respondent for the offence punishable under Section 420 of IPC. The accused/respondent denied the charges, abjured the guilt, and prayed for trial.

3. The learned trial Court, after evaluating the evidence available on record, acquitted the respondent of the charge levelled against him. Being aggrieved by the said judgment of acquittal, the complainant/appellant preferred an appeal before the Appellate Court. The learned Appellate Court, by judgment dated 22.09.2016, dismissed the appeal and affirmed the order of acquittal passed by the learned trial Court. Hence, the present appeal has been preferred by the complainant/appellant.

4. Learned counsel for the appellant submits that both the trial Court as well as the Appellate Court failed to properly appreciate the oral and documentary evidence available on record. She further submits that the execution of the agreement, payment of the entire sale consideration, and the subsequent sale of the same land to one Hiraben Patel clearly show dishonest conduct on the part of the respondent. Therefore, it is prayed that the judgments passed by the learned both the Courts be set aside and the respondent be convicted accordingly.

5. Per contra, learned counsel for the respondent No.1 supports the impugned judgments and submits that the complainant had voluntarily entered into the agreement after understanding its terms and conditions. It is further submitted that the agreement itself permitted execution of the sale deed in favour of any person nominated by the purchaser, and ther