The court ruled that mere failure to keep a promise cannot constitute cheating; intention to deceive must exist at the time of the promise.

ORDER

ASHOK BHUSHAN,

J. Leave granted

2. This appeal has been filed against the judgment of Allahabad High Court dated 21.10.2016 in Criminal Revision No. 724 of 2007 dismissing the criminal revision filed by the appellant. The criminal revision was filed by the appellant challenging the order dated 28.02.2007 passed by Chief Judicial Magistrate, Fatehpur by which order Chief Judicial Magistrate rejected the application of the appellant for discharge in Criminal Case No. 545 of 2002 under Section 420 IPC .

3. The brief facts giving rise to this appeal are:

The Company, namely, M/s. Aneja Consultancy (hereinafter referred to as 'the Company') was founded in the year 1984 by one I.J. Aneja as Chairman. Father of the appellant, Major P.C. Sahay (Retd.) joined the Company as Branch Manager at District Fatehpur. Several persons including appellant as well as respondent No.2 deposited different amounts in the Company. Respondent No.2 and his wife deposited total amount of Rs.86,000/- in the Company in June/July, 1987. The owner/Proprietor of the Company on 20.06.1996 made a public declaration that the owner would bear the full liability and responsibility of all deposits made by various investors across the country and employees and staff of the Company have no personal liabilities to repay to the investors. The Company faced a financial trouble, cash/liquidity crunch and was unable to make repayment of the money of the investors. Respondent No.2 lodged First Information Report on 30.05.1998 against the appellant and his father Major(Retd.) P.C. Sahay under Section 420 IPC . A Case Crime No.386 of 1998 was registered against the appellant under Section 420 IPC . A criminal writ petition was filed challenging the FIR dated 30.05.1998 by the appellant as well as his father Major P.C. Sahay(Retd.). The High Court vide its judgment dated 21.10.2016 stayed the arrest of the appellant till submission of charge-sheet whereas prayer of the father of the appellant to stay of arrest was rejected. Respondent No.2 and his wife filed a complaint before District Consumer Forum, Fatehpur against the Chairman of the Company/Proprietor and Managing Director of the Company praying for realisation of the amount deposited in June/July, 1997 along with interest and Rs.2000/- as expenditure of the litigation. The complaint was filed on 09.11.1998.

4. The Police carried out investigation in Criminal Case NO.386 of 1998 recorded the statement of respondent No.2 and his wife and a chargesheet No.358 of 2001 dated 14.10.2001 was submitted by the Police under Section 420 IPC . The cognizance was taken on 15.02.2002. The appellant filed an application for discharge alleging that neither sufficient allegations are made nor evidence to prosecute the appellant under Section 420 IPC was produced. Chief Judicial Magistrate rejected the application for discharge vide his order dated 28.02.2007 against which Criminal Revision was filed by the appellant in the High Court. The Criminal Revision has been dismissed on 21.10.2016 against which order this appeal has been filed.

5. We have heard Shri Pradeep Kant, learned senior counsel appearing for the appellant and learned counsel for the State of U.P.

6. Although, notices were published in the newspaper, Amar Ujala, Kanpur on 12.08.2017 as well as in Amar Ujala, Fatehpur on 13.08.2017 but no one has appeared for respondent No.2.

7. Learned senior counsel for the appellant in support of the appeal submits that in the First Information Report lodged by respondent No.2 against the appellant for the offence under Section 420 IPC , the