A mere failure to return funds does not constitute cheating without proof of dishonest intent or fraudulent concealment as required by IPC.

ORDER

This revision is in challenge of the acquittal of respondent No.1 by the appellate Court.

2. Respondent No.1 along with accused Nos.2 and 3, his father and brother-in-law faced trial in the Court of learned Judicial First Class Magistrate-I, Kottarakkara for offence punishable under Section 420 read with Section 34 of the Indian Penal Code ( for short, “the Code”). Case is that respondent No.1 promised to marry PW7, daughter of petitioner No.1(PW1) and there was exchange of letters from the respective Karayogams. Respondent No.1 received from petitioner No.1 Rs.50,000/- on 22.8.2001. The further allegation is that respondent No.1 falsely claimed that he is employed as a driver but enquiry revealed that he is a drunkard involved in a few cases. This was suppressed from the petitioners. According to the petitioners, respondent No.1 and accused Nos.2 and 3 cheated him. Complaint preferred by the petitioners was Crl.R.P.No.39/09 2 forwarded to the police for investigation. Police after investigation filed chargesheet against respondent No.1 and accused Nos.2 and 3. Charge against accused No.2 abated on his death. Respondent No.1 and accused No.3 faced trial. Learned magistrate found that accused No.3 has not committed any offence. He was acquitted. Respondent No.1 was found guilty, convicted and sentenced to undergo imprisonment and payment of compensation. He preferred an appeal before learned Sessions judge. Learned Sessions Judge vide the impugned judgment found that respondent No.1 has not committed any offence and acquitted him. That judgment is under challenge in this revision. Learned counsel for petitioners submits that acquittal of respondent No.1 is not legal or proper.

3. Complaint is that respondent No.1 approached petitioners through a broker with a proposal for marrying PW7 and he claimed that he is employed as a driver and has no bad habits. It is accordingly that marriage was fixed and the betrothal was agreed to be held on 9.9.2001. Marriage was to be held on 18.11.2001. On 19.8.2001, respondent No.1 and Crl.R.P.No.39/09 3 others came to house of petitioners and said that accused No.3 is in military service, he has only twenty days leave and has to return immediately. They, therefore wanted the marriage to be preponed. Accordingly, the marriage was preponed to on 9.9.2001. They wanted Rs.50,000/- towards marriage expenses. On 22.8.2001 respondent No.1 and others came with letter from their karayogam. That day, petitioner No.1 gave Rs.50,000/- to respondent No.1 but later, petitioners learnt that respondent No.1 is not having any job as claimed and that he is a drunkard involved in several cases. Hence, the marriage was cancelled. Petitioner No.1 gave evidence as PW1. PW7 is his daughter. Pws5 and 6 supported them. Accused No.3 gave evidence as DW1. He admitted the proposal for marriage between PW7 and respondent No.1. They had made all arrangements for the marriage but petitioner withdrew from the proposal. He proved Exts. D1 to D7. Ext.D1 is the copy of notice issued by accused to petitioner No.1. Ext.D2 is the acknowledgment card for its service. Ext.D3 is the invitation card for the marriage got printed by respondent No.1. Ext.D4 is produced to show that Crl.R.P.No.39/09 4 they had booked two buses for the marriage party. Ext.D5 is the receipt produced to show that a photographer was arranged. Ext.D6 is the copy of complaint preferred by respondent No.1 against the petitioner No.1 alleging that petitioner No.1 defamed him. Ext.D7 is the letter issued by the Karayogam of the petitioners. Learned magistrate found that accused No.3 is not guilty and acquitted him but respondent No.1 (accused No.1) was found guilty. Appellate Court found that element of cheating as defined under Section 415 of the Code is not brought out and acquitted respondent No.1.

4. I am unable to think that it was the responsibility of respondent No.1 to inform the petitioners about his alleged bad habits or involvement in criminal cases. T