I.S. Neelakantan Row vs J.G. Rajan

Somasundaram, J.—Door No. 3 Muniappa Mudali Street, at Madras belongs to the Petitioner, P.W. 1. J.G. Rajan approached him in the company of P.W. 2, of 14th June 1967 and requested him to let out the upstairs portion which was likely to fall vacant. Petitioner agreed to let it out on a monthly rent of Rs. 85 per month with effect from 1st July 1967. On that day he demanded an amount of Rs. 1000 and this was paid on 19th June 1967. Documents Ex P.W. 4 and P. 5 were executed and handed over to PW. 1. On 3rd July 1967 the Petitioner told P.W. 1 that he was not willing to let out the portion. With these allegations P W. 1 filed a complaint before the Fourth Presidency Magistrate, George Town, Madras against the Petitioner for an offence u/s 420, I.P.C. He deposed to the facts stated above P.W. 2, who accompanied him on the 19th June spoke to the payment of the amount of Rs. 1000. When questioned in court the Petitioner stated that it was P.W. 1 who told him on 30th June 1967 that he did not require the upstairs portion as originally fixed and that he wanted on that score a return of the amount of Rs. 1000 already paid as hand loan Disbelieving his version and observing that as per the representations made by the Petitioner, P.W. 1 had parsed with the amount of Rs. 1000, the learned Magistrate convicted him u/s 420, I.P.C. and sentenced him to suffer rigorous imprisonment for four months and a fine of Rs. 100.

The correctness of this conviction is now canvassed in this revision.

The prosecution to sustain a conviction u/s 420, I.P.C, should prove that on 14th June 1967 the Petitioner made there-presentations without any intention or idea of giving the house to P. W. 1 and that believing these representations the latter parted with the amount. There is no such proof in this case The alleged representation was on 14th June 1967. The actual payment was on 19th June 1967. The refusal was on 3rd July 1967. The recital in Ex. P. 4 is that the amount of Rs. 1,000, was paid as a hand loan, repayable in monthly installments of Rs. 50 per month P. W. 1 states that only on 3rd June 1967 the Petitioner told him that the house was not available. P. W. 1 admits that he had fixed op another house bearing door No. 16 Ibrahim Sait Street at Rs. 85 on 7th July 1967. P.W. 1 issued the notice only 5th July 1967.

Mere breach of a contract cannot give rise to a criminal prosecution. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time of the alleged inducement. Where there is no clear and conclusive evidence of the criminal intention of the accused at the time the offence is said to have been committed, there could be no conviction for cheating.

Thus there is no evidence to show that the Petitioner had no intention of delivering possession of this house on 14th June 1967 when he made the representations or on 19th June 1967 when he received the amount. The convictions and sentences are set aside The Petitioner is acquitted of the offence under which he stands convicted. The fine, if paid, will be refunded.