Establishing intent to deceive is crucial for the offense of cheating; mere failure in performance is insufficient to constitute cheating without dishonest intent at the time of inducement.

ORDER

This revision petition is preferred by the 1st accused against the judgment in Crl.Appeal No.495/2001 of Additional Sessions Judge, Kottayam. The accused were charge sheeted in C.C. N0.313/1997 by the Chief Judicial Magistrate, Kottayam u/s.420 r/w.34 IPC and convicted 1st and 3rd accused u/s.420 r/w.34 and sentenced to rigorous imprisonment for two years each and directed to pay compensation of ₹51,000/- each to PW1 to PW9, ₹65,000/- each to PW2 and ₹70,000/- each to Pws 3 and 4 u/s.357(3) Cr.P.C. Against that, the accused preferred the above criminal appeal before Additional Sessions Judge, Kottayam, where the learned Sessions Judge modified the sentence to simple imprisonment for six months confirming the compensation amount. Being aggrieved by that, the 1st accused preferred this revision petition.

2. The charge against the accused is that the accused with their common intention dishonestly induced Pws 1 to 5 and made them believe that they will arrange visa for getting employment abroad and during July 1996 to February 1997, they collected ₹51,000/- from PW1, ₹65,000/- from PW2, ₹70,000/- from PW3 and ₹50,000/- each from PW4 and PW5 and others. Accordingly, these persons were taken to Mumbai and stayed there for some day, subsequently, they were sent back to Kerala without giving any visa or money, thereby committed the offence. On the basis of information, Sub Inspector of Police, Kottayam East registered a crime and after completing investigation, laid charge in the Chief Judicial Magistrate, Kottayam. To prove the offence, prosecution examined PW1 to PW9 and marked Exts.P1 to P7. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They marked Exts.D1 and D2 as their documentary evidence.

3. The main argument advanced by the learned counsel appearing for the revision petitioner was that the revision petitioner did not receive any amount from PW1 to PW4 and no documentary evidence has been adduced by the prosecution to prove that point. No complaint was preferred by PW2 to PW5 for redressing their grievance at the same time, prosecution has a case that the 2nd and 3rd accused alone received money and therefore, the criminal liability cannot be fastened against the 1st accused alone. There is delay of one year in registering the case, which was not properly explained by the prosecution. In the circumstances, the accused is entitled to get benefit of doubt and relied on the decision of the Apex Court in Sukhram v. State of Madhya Pradesh [AIR 1998 SC 772] and State of West Bengal v. Vindhu Lachmandas .

4. The learned Public Prosecutor contended that Ext.P2 itself shows both mental and physical elements in committing the offence of cheating. The acquittal of A2 and A3 is not a ground to acquit the first accused in the light of Ext.P2. Even though the revision petitioner contended that several other persons were involved in the above transaction, no materials were produced in the trial Court to show the involvement of the other accused. Both courts below analysed the evidence and confirmed the conviction of the revision petitioner and no interference is necessary. 5. Apex Court in Rajappan v. State of Kerala [1986 CRI.

L.J. 511] held as follows:

“The object of revisional jurisdiction is to afford a paternal or supervisory power to correct miscarriage of justice arising from misconception of law, irregularity of procedure, lack of proper precautions, etc., which has resulted in some injury or undeserved hardship. To appeal is a statutory right. But that is not the case with revisional jurisdiction. In revisional jurisdiction, it is for the Court to interfere in exceptional cases where it seems that some real substantial injustice has been done. Violation of fundamental rules in the matter of appreciation of evidence resulting in miscarriage of justice is one of the instances where the High Court is justified in interfering for the purpose of revising the decision o