A. Misra, J.
1. The petitioner has been convicted Under Section 420 IPC sentenced to undergo rigorous imprisonment for six months and to pav a fine of Rs. 2.000/-: in default, to undergo further rigorous imprisonment for three months. Out of the fine, if realised. Rs. 1,000/- has been ordered to be paid to the complainant-opposite party as compensation for the loss sustained by him.
2. The case of the opposite party is that on 6-1-66 the petitioner approached him in the company of P.W. 2 and one False Haque and wanted an amount of Rs. '3,000/- in cash to meet certain urgent needs. He delivered to the op-oositv party a cheque for Rs. 3,000/-drawn on the United Commercial Bank in favour of the opposite party representing he has- an account there and received the amount in cash. On 22-1-<56, the opposite party presented the cheque for encashment at the Bank, The cheque was dishonoured on the around that the petitioner has not sufficient funds to his credit to cover the cheque. Therefore, the opposite party approached the petitioner for repayment, but the latter not having done so. the former filed the complaint on which the prosecution was initiated.
3. The plea of the accused-petitioner was a complete denial of havine delivered the cheque or received the amount from the opposite party. According to him. for the purpose of his business he used to keep some blank signed cheques in his table-drawer and he suspected that one Papa Mian who was previously an office-peon might have stolen one of the cheques and this false case has been started by the opposite party by obtaining the same through Papa Mian.
4. The learned Magistrate accepted the complainant's case, reiected the defence version,. convicted the petitioner- Under Section 420, IPC and sentenced him as above. On appeal the conviction and sentence have been confirmed by the learned Additional Sessions Judse.
5. I do not propose to go into the merits of the contentions of the parties, in view of the concurrent findings of the courts- below that petitioner delivered the cheque on the date in question and took Rs. 3,000/- from the opposite party in cash and that the cheque was not honoured by the Bank on the ground that the amount to the credit of the petitioner did not permit such encashment.
6. The only Point urged before me which arises for consideration in this revision is whether on the facts found, the elements of cheating have been proved.
7. To constitute the offence of cheating the ingredients to be proved are deception of any person who thereby is fraudulently or dishonestly induced to deliver any property. In other words.-there must be a deception which should precede the fraudulent or dishonest inducement of the person deceived to part with the property. All that has been proved in this case is that the petitioner drew a cheque on his Bank account which he gave to the opposite party for the cash of Rs. 3,000/- which the latter parted with. The act of drawing a cheque implies representation that the drawer has an-account with the Bank in question: that he has authority to draw on it and that in the ordinary course of events the cheque, on future presentation, will be honoured. 'The drawing of a cheque does not. however, imply any representation that the drawer already has money in the Bank to the amount shown in the cheque, for he may either have authority to over-. draw, or have an honest intention of paving in the necessary money before the cheque can be presented' (vide Kanwar Sain v. The Crown in ILR (1938) 19 Lahore 662 (A.I.R. 1939 Lah 95).
Unless it is proved that there was deception and a fraudulent or dishonest inducement to part with the money. the act' will not constitute offence of cheating. The words 'whoever by deceiving any person' necessarily means causing him to believe what is not true or misleading him as to a matter of fact. This necessarily implies that there was some representation either express or implied to cause the erroneous belief regarding an existing fact. There is nothing in the evidence of the opposite party to show that the petitioner made any representation that ' he had sufficient cash to cover the cheque in his Bank account at that point of time. There is also no evidence that at that point of time petitioner had definite knowledge that the amount to his credit in his Bank account would not be sufficient to cover the cheque. The possibility of his having been under an honest though erroneous impression that the amount to his credit might cover the cheque, and even otherwise, the possibility of his having honestly intended of paving in the necessary money before the cheque would be presented cannot be excluded.
learned Counsel for opposite party contends that the subsequent conduct of the petitioner in not repaying the money when informed that the cheque was dishonoured should lead to an inference that at the time of making over the cheque he committed deception by creating a belief that he had sufficient funds and thereby dishonestly induced the opposite party to part with his money. In support of this contention, he relies on the decisions reported . in : AIR1957All246 . The facts and circumstances of these cases are clearly different. In the Orissa case, the accused induced the complainant to Dart with Rs. 25/- making a representation that he was a clerk in the Land Mortgage Bank and that he could arrange a loan of Rs. 150/-. though he was actually not holding any such position. The false representation to mislead the complainant was taken as proof of the deception practised. In the two Allahabad cases, by making representations deception was committed, and therefore, the facts of those cases are quite distinguishable from the facts of the present case.
In the decision. reported in 1968 Mad LJ (Crl.) 273 (Ker) on facts similar to the facts proved in this case, it was held that the drawing up of a cheque does not imply any representation that the drawer has money in the Bank to the amount shown in the cheque. and as such, the element of deception cannot be inferred. As the possibility of the drawer honestly believing, that he had necessary funds in the Bank or his honest intention of pavine in the neces-sarv money before presentation of the cheque cannot be excluded, it will not be coirect to sav that there was dishonest or fraudulent inducement to part with the money. In the circumstances of the present case, as the requisite fraudulent or dishonest intention or the element of deception has not been established, the offence of cheating is not committed and the conviction has to be set aside.
8. In the result, the revision is allowed. the conviction and sentence are set aside and the petitioner acquitted of the charge.