1. It seems to me that the prosecution of the accused on the charge of a cheating under Section 420 of the Indian Penal Code has been misconceived. He and prosecution 1st witness were partners, and there was a debt due by prosecution 5th witness to that partnership. The prosecution case is that the partnership has been dissolved by Exhibit A and that the accused had no right under it to collect any debts due to that partnership, and that in that state of facts the accused obtained from prosecution 5th witness the repayment of the debt due to the partnership giving up a portion and that he has not paid over the money so collected to the partnership or informed prosecution 1st witness about it and thus committed the offence charged. The person said to be cheated is prosecution 5th witness. Section 415 of the Indian Penal Code defines what cheating is. It requires that the person, said to have been cheated, should have been deceived and dishonestly or fraudulently induced to pay the money he did pay. There is no clear evidence of any active deception practiced by the accused on prosecution 5th witness. It is said there is a dishonest concealment of facts on his part. A concealment can be said to be dishonest only if the person was under a duty to disclose the facts. See Emperor v. Bishen Das 27 A. 561 : (1905) A.W.N. 98 : 2 A.L.J. 268 : 2 Cri. L.J. 218. The accused case is that Exhibit A did not interfere with his rights to collect the partnership debts. There is nothing in Exhibit A that makes it clear that the Accused right as a partner to collect partnership debts has been taken away. It is said to be the result of the clause, I shall not henceforward interfere with the business of this company without your knowledge. The business of the company was apparently a commission business; it is doubtful whether the collection of the old debts could be treated as a business of the company. At any rate it is difficult to say that the accused was acting fraudulently or dishonestly in thinking that he had still the right to collect the debts. There was no settlement of accounts and the receiving of the debt from the prosecution 5th witness was done openly and a formal receipt Exhibit was given by the accused. In these circumstances I think the accused cannot be held to be guilty of cheating prosecution 5th witness. Whether the fact that he did not pay over the money collected to prosecution 1st witness will constitute any other offence need not be considered, as no other offence is charged against the accused.
2. I, therefore, set aside the conviction and sentence and acquit the accused and direct the accused to be released and the fine, if paid, to be refunded.