IMPORTANT POINT
The intention to cheat must be established at the time of inducement; mere failure to fulfill a promise does not constitute cheating.

ORDER :

1. Leave granted.

2. The appellant before this Court has challenged the order dated 12.07.2021 by which his 482 petition before the High Court was only partly allowed in as much as though the High Court has quashed the proceedings regarding offences under Sections 406/420/417 of Indian Penal Code as far as they relate to the co-accused, and also against the appellant so far as it relates to offences under Sections 406 & 420, but the criminal proceedings against the appellant have not been quashed under Section 417. Thus, still aggrieved he has come before this Court.

3. The facts of this case are that the informant Ms. Sushmita present respondent no.2 had lodged her FIR at Malamaruti Police Station, Karnataka under Sections 406/420/417 read with Section 34 IPC against 6 persons including the present appellant. It was stated in the FIR that the informant is M.Tech. graduate and was working as a lecturer. Her elders were searching a suitable bridegroom for her which they found in the present appellant. The appellant and the informant were thereafter talking to each other on phone and her father had also given Rs.75,000/- in advance for the marriage hall, but this marriage never took place as she learnt from a newspaper report that the appellant has in fact married someone else! She then lodges an FIR against 6 persons under Sections 406/420/417 read with Section 34 of IPC. The FIR, primarily related to offence of cheating and criminal breach of trust. The accused persons are the present appellant (i.e. the prospective bridegroom according to the informant) his mother, sisters and brothers. All the accused had filed a petition under Section 482 of the Criminal Procedure Code for quashing the proceedings as no case under Sections 406/407/420 read with Section 34 IPC was made out against any of them and they would argue that the proceedings initiated by the accused was nothing but an abuse of the process of law. The learned Single Judge of the High Court came to the conclusion that no offences under Section 406 or under Section 420 is made out against any of the accused persons. The reasoning given by the High Court are as under :-

“21. To constitute an offence punishable under Section 406 of IPC, there must be criminal breach of trust as defined under Section 405 of IPC. To constitute criminal breach of trust, there must be entrustment of the property or domain over the property or there must be dishonest misappropriation of such property. In the present case, even though it is stated that a sum of Rs.15,000/- was paid to accused No.1 for purchase of clothes and spent Rs.75,000/- for booking the marriage hall, the ingredients of Section 405 of IPC is not attracted. It cannot be said that there was entrustment of property and there is dishonest, misappropriation of the same. Therefore, the offence under Section 406 of IPC is not made out.

22. Section 420 of IPC is also invoked against these petitioners. To constitute the offence punishable under Section 420 of IPC, there must be cheating dishonestly by inducing the person to deliver any property or to make alter or destroy the whole or any part of valuable security etc. On going through the first information in detail, it is revealed that even these requirements to constitute the offence punishable under Section 420 of IPC is not made out.”

All the same, the High Court then came to the conclusion that as against the appellant an offence under Section 417 of IPC is made out, though not against the rest of the accused. The reasoning given by the High Court for maintaining the offence under Section 417 IPC, however are not correct. These reasonings are as follows :-

“I do find considerable force in the contention taken by the respondent No.2 that accused No. l was having intention to deceive the informant, received the money for purchase of clothes and also got booked the marriage hall. Prima facie it constitutes the offence under Section 415 of IPC punishable under Section 417 of IP