Section 415 of the IPC defines cheating as under :
"Section 415.--Cheating--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to `cheat'."
An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
"i) deception of a person either by making a false or misleading representation or by other action or omission;
(ii) fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit."
For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.
one of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract.
In Ajay Mitra v. State of M.P. (2003) 3 SCC 11, this Court held:
15. Section 420 IPC says that "whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person ... shall be punished with imprisonment ...".
Cheating has been defined in Section 415 IPC and it says that:
"415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to `cheat'."
16. A guilty intention is an essential ingredient of the offence of cheating. In other words "mens rea" on the part of the accused must be established before he can be convicted of an offence of cheating. (See Jaswantrai Manilal Akhaney v. State of Bombay [AIR 1956 SC 574). In Mahadeo Prasad v. State of W.Bi [AIR 1954 SC 724] it was held as follows: (AIR paras 4-5) Where the charge against the accused is under Section 420 in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods then a case of cheating would be established."
In Hira Lal Hari Lal Bhagwati v. CBI [(2003) 5 SCC 257], this Court held :
"40. It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption."
{See also Indian Oil Corporation v. NEPC India Ltd. & Ors. [(2006) 6 SCC 736]}
In Vir Prakash Sharma v. Anil Kumar Agarwal [(2007) 7 SCC 373], noticing, inter alia, the aforementioned decision, this Court held:
"8. The dispute between the parties herein is essentially a civil dispute. Non-payment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust.
It was furthermore opined:
"The ingredients of Section 420 of the Penal Code are as follows:
(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any
person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
The said principle has been reiterated in All Cargo Movers (I) Pvt.
Ltd. v. Dhanesh Badarmal Jain & Anr. [2007 (12) SCALE 391], stating:
"For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice."
Supreme Court of India
Mahadeo Prasad vs State Of West Bengal on 13 January, 1954
if the ACCUSED had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods then a case of cheating would be established.
In B. Suresh Yadav Vs. Sharifa Bee [2007 (12) SCALE 364], it was held;
"13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so. No case for proceeding against the respondent under Section 420 of the Indian Penal Code is therefore, made out."
Javerchand Chawla v. State of Andhra Pradesh to 2001 (1) Rec Cri R 270 : (2000 Cri LJ 3753) where it was held that where accused got loan on false representation to the complainant that he was owner of the shop which he was not and the cheques issued by the accused were also bounced, offence of cheating was made out.
Joseph v. Philip Joseph 2000 (1) Rec Cri R 132 (Kerala) where it was held that where the cheque was issued by the drawer from the account which was closed in the year 1990 and the cheque was dishonoured no offence under S. 138 of the Negotiable Instruments Act was made out. Offence would come within the purview of S. 420, IPC.
OPTS Marketing Pvt. Ltd. v. State of A. P. 2000 (2) Rec Cri R 499 at page 507 para 29 : (2001 Cri LJ 1489) which lays down that :
" (ii) Even after the introduction of S. 138, Negotiable Instruments Act, prosecution under S. 420, IPC is maintainable in case of dishonour of cheques or post-dated cheques issued towards payment of price of the goods purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplied earlier, if the charge-sheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of the cheque, and the act of issuing the cheque, which was dishonoured, caused damage to his mind, body or reputation. Private complaint or FIR alleging offence under S. 420, IPC for dishonour of cheques or post-dated cheques cannot be quashed under S. 482, Cr. P. C. , if the averments in the complaint show that the accused had, with a dishonest intention and to cause damage to his mind, body or reputation, issued the cheque which was not honoured. "
Sneh Lata v. Swastika Agro Industrial Corporation, Jalandhar
DISHONEST intention is required to be present at the time when transaction takes place. Section 420, IPC would be made out only if the allegation is that the complainant was induced into delivering the goods to the accused on the accused representing that the cheque will be cashed on presentation, when the intention was not to make any payment at all.
In G.V.Rao v. L.H.V Prasad and otherss case,, the Hon'ble Supreme Court has held that there should have been inducement, either dishonestly or fraudulently, and because of such inducement, the person induced should have done or omitted to do something which she would not have otherwise done or omitted to do..
DECEPTION - 7 point principle :
1- Deception is the gist of offence , it means to cause to believe a state of affair which is false , misleading or leading into error. Its a trick or sham committed by words or conduct . It is a wilful misrepresentation to mislead a person . Whether deception occurred or not is a question of fact to be decided on facts and circumstances of each case. 2- It has to be shown that misrepresentation made was false to the accused's knowledge at the time when it was made and the intention was to mislead a person . If the representation is made innocently it will not amount to deception . A statement purely affecting future will not suffice.
3- Deceit must have been practiced before the property is delivered. Dishonest intention at the inception of the delivery of property is the gist of offence . A fraudulent representation may be made directly or indirectly (though means of an agent ) 4 - Mere deceit by itself is not sufficient . It must induce and lead to delivery of property or cause injury (harm in body , mind, reputation , property)
5 - Mere fact that fraud played could have easily been detected is no defence to charge . However , where complainant discovers deception and yet continues with the transaction then accused cannot be held liable for cheating. [ An English case , in R v. Miller (1993) RTR 6 CA) in this case accused falsely represented to be taxi driver , complainant suspected that accused was not a taxi driver yet still paid exorbitant charges . Court held that , deception was the cause of payment it is irrelevant that complainant had suspicions later].
6 - The offence of cheating is not committed if a third party on whom no deception has been practiced, sustains pecuniary loss in consequence of accused act. [ Sundar Singh (1904) PR no.25 of 1904]
7- One may attempt to cheat , although the person one attempts to cheat is forewarned and is therefore not cheated .Where a person knows that statements made by another are false , but still acts upon them with a view to entrap that person, the accused will guilty of attempt to cheat. Thus, if a person buys milk knowing it to be watered in order to prosecute the seller the offence committed by the seller is only attempt to cheat.
The accused told the complainant that he knew how to double currency notes. The complainant did not believe it but he gave the currency notes with a view to entrap accused. Court held that complainant knew the false pretence and asking for currency notes were in themselves sufficient for holding the accused guilty of offence of attempt to cheat. (Ram nath v. state of M.P 1951 mp 100)
8- Puffing of goods :, untrue praise of goods meant for sale does not amount to cheating (W.H. Da Costa v. J. P. Deejholts . In this connection, reference may be made to the comments of Gour as to the case of a tradesman puffing off his goods and thereby inducing the buyer to pay a higher price : "Since such praise is quite common of which every buyer is and/or should be aware, it cannot be said that he is induced to purchase the goods by such deception" (Gour's Penal Law, 10th Edition page 3644).
In Muhammad Ibrahim Haji Moula Baksh v. T.C.R. Naitghton, AIR 1941 Sind 198, the complainant, on high hopes being held out by the managing director of a business, entered into partnership with him and invested a large sum of money. The complainant had at all times access to the business books and also participated in the management of the business. The high hopes held out by the directors were not fulfilled and the business ended in considerable loss. On a charge of cheating by the complainant against the accused, it was held that no offence of cheating was committed.
In Maung Tin v. Emperor, AIR 1935 Rangoon 426, the doctrine of caveat emptor was applied to quash the charge of attempt to cheat in connection with a case of sale of jewellery.
Any exaggeration or deception in ordinary course of dealing between buyer and seller during the progress of bargain cannot be subject of criminal prosecution . But if the thing sold is entirely of different description from what it is represented to be and statements made are not in form of expression of opinion or mere praise but as a specific fact within the knowledge of the accused , the offence of cheating will be committed e.g. where a gold chain represented to be of 21 carat is actually of 11 carat.
Calcutta High Court
Ali Hussain And Anr. vs Emperor on 25 May, 1932
from the facts that accused 1 wore a khaki shirt and the attend to take the complainant to the thana there could not, be any manner of doubt that the accused gave the complainant to understand that he was a police officer which he was not and that he had the authority to take him to the thana which authority he did not possess and this, did amount to deception.
Where accused who was a different person than the payee indicated in certain money - orders , obtained payments on those money orders by producing an identity card purporting to be that of the payee but had his own photograph pasted upon it and signing as payee , he was guilty of cheating and forgery. (Khairati Ram v. State AIR 1972 Del 13)
Another illustration : where A dines at a hotel and goes away without paying bull or leaving his name and address , he would be liable for cheating. The selling of milk and water in about equal proportions as pure milk amounts to cheating.
Where a person gave some utensils to the accused who represented that he would repair the same and the accused neither repaired nor returned the utensil , there is a deception and it will amount to cheating . (Khuda Baksha v. Bakeya ILR 32 Cal 941)
Where a person obtains loan of money from another and in answer to suit for recovery of the sum so borrowed sets up the defence of minority , that he was the minor at the time he borrowed money , with the result that suit against him is dismissed. He is liable for conviction for an offence under section 415 , illustration (f) m as his intention was from very outset dishonest.
Supreme Court of India
Inder Mohan Goswami & Another vs State Of Uttaranchal & Others on 9 October, 2007
Section 415 IPC thus requires
1. deception of any person.
2. (a) fraudulently or dishonestly inducing that person-
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body mind, reputation or property.
On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.
Supreme Court of India
Dr. Vimla vs Delhi Administration on 29 November, 1962
"It may be noted in this connection that the word "'injury" as defined in s. 44, Penal Code, is very wide as denoting "any harm whatever, illegally caused to any person, in body, mind, reputation or property. "To summarize : the expression "'defraud" involves two elements, namely, deceit and injury to the person deceived. injury is something other than economic loss that is', deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non economic or non- pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
SECOND ESSENTIAL REQUIREMENT IS FRAUD or DISHONEST INTENTION :-
Section 415 requires that person must deceive and secondly he must also induce another with the intention to deceive . In other words , it requires the deceiving of a person as well as inducing him with intention to cause wrongful gain or wrongful loss.
[However , mere recommendation of a person's worthiness is not deception . These recommendations are common in job interviews. Similarly , to induce a son to pay his father's debt by acting on his fear of lawful consequences to his father (civil suit for recovery) is not cheating.]
An act may be dishonest yet not fraudulent . Deception is essential for fraud but not for dishonest intention . A dishonest intention is intention to cause wrongful gain or wrongful loss , while fraudulently involves something more than just economic injury.
Orissa High Court
Smt. Uma Dutta vs G. Mahadevan on 3 December, 1992
Woman pledged her gold ornaments for gold loan . After she paid all the dues , the bank manager refused to return the gold amount as her husband , an employee of the bank , was involved in a case of bank fraud. It was held that bank manager's act was not dishonest .
court held - " Whether the Bank's lien can be exercised over the gold ornaments may be a matter to be decided but the fact remains that when the Branch Manager refused to deliver the ornaments to the petitioner, he had, no dishonest mind, inducing the complainant to part with the money with the false hope of getting the ornaments. If unauthorisedly the ornaments were held up by the Bank after the loan amount was liquidated by the complainant, she had a cause of action to agitate in civil court. But then in order to constitute a criminal offence under Section 420, IPC, the incidental requirement of dishonest intention is lacking and even if the reason given in the impugned order has not covered all these aspects, I do not find that any injustice has been caused to the complainant in the event of refusal by the Magistrate to frame charge under Section 420, IPC against the accused."
Supreme Court of India
Mahadeo Prasad vs State Of West Bengal on 13 January, 1954
FACTS - The Appellant agreed to purchase from the complainant Dulichand Kheria 25 ingots of tin on the 5th May 1951. The complainant had in his stock 14 ingots only and purchased 11 ingots from the firm of M. Golam Ali Abdul Hossain. These 25 ingots were to-be delivered by the complainant at the guddi of the Appellant and it was agreed that the price which was fixed at the rate of Rs. 778 per cwt. and amounted to Rs. 17,324/12/6 was to be paid by the Appellant against delivery. The Jamadar of the complainant went to the Guddi of the Appellant. The Appellant took delivery of the ingots but kept the Jamadar awaiting and did not pay the price to him. The Jamadar waited for a long time. The Appellant went out and did not return to the Guddi and the Jamadar ultimately returned to the complainant and reported that no payment was made though the ingots were taken delivery of by the Appellant.
The complainant who was induced to part with these 25 ingots of tin by the Appellant's promise to pay cash against delivery realised that he was cheated. He therefore filed on the 11th May 1951 his complaint in the Court of the Additional Chief Presidency Magistrate, Calcutta charging the Appellant with having committed an offence under Section 420 of the Indian Penal Code.
COURT HELD - "The complainant had never known the Appellant and had no previous dealings with him prior to the transaction in question. The complainant could therefore not be anxious to sell the goods to the Appellant either on credit or even in a falling market except on terms as to cash against delivery. Whatever be the anxiety of the complainant to dispose of his goods he would not trust the Appellant who was an utter stranger to him and give him delivery of the goods except on terms that the Appellant paid the price of the ingots delivered to him in cash and that position would not be affected by the fact that the market was rapidly declining.
There was no question of any miscalculation made by the Appellant in the matter of his ability to pay the cash against delivery. He knew fully well what his commitments were, what moneys he was going to receive from outside parties and what payments he was to make in respect of his transactions .The stipulation as to payment of interest endorsed on the bill would not militate against an initial agreement that the price of the ingots should be paid in cash against delivery. It would only import a liability on the part of the purchaser to pay 12 per cent, interest on the price of the goods sold and delivered to him if he did not pay cash against delivery. That would indeed be a civil liability in regard to the payment of interest but would certainly not eschew any criminal liability of the purchaser if the circumstances surrounding the transaction were such as to import one. The anxiety to arrive at a settlement could easily be explained by the fact that the Appellant knew that he had taken delivery of the ingots without payment of cash against delivery and the only way in which he would get away from the criminal liability was to arrive at a settlement with the complainant. The state of the overdraft account of the Appellant with the Bank of Bankura Ltd., the evidence of the complainant as well as the Jamadar, the hypothecation of 70 ingots of tin by the Appellant with the Bank of Bankura Ltd. on the very 5th May 1951 and the whole of the conduct of the Appellant is sufficient in. our opinion to hold that at the time when he took delivery of the 25 ingots of tin, the Appellant had no intention whatsoever to pay but merely promised to pay cash against delivery in order to induce the complainant to part with the goods.
The Appellant was therefore rightly convicted of the offence under Section 420 of the Indian Penal."
Supreme Court of India
Rajesh Bajaj vs State Nct Of Delhi And Others on 12 March, 1999
It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities. The appellant is, therefore, right in contending that the FIR should not have been quashed in this case and the investigation should have been allowed to proceed.
3- ANY POPERTY - INCLUDES BOTH MOVABLE , IMMOVABLE PROPERTIES , VALUABLE SECURITIES AND EVEN DOCUMENTS LIKE PASSPORT , ADMIT CARDS ETC .
In Queen Empress v. Appasami - it was held that the ticket entitling the accused to enter the examination room and be there examined for the Matriculation test of the University was 'property'.
In Queen Empress v. Soshi Bhushan - it was held that the term 'property' in s. 463, Indian Penal Code, included the written certificate to the effect that the accused had attended, during a certain period, a course of law lectures and had paid up his fees.
4- SUCH DECEPTION THEN LATER SHOULD LEAD TO INDUCEMENT OF DELIVERY SUCH PROPERTY - FOR AN OFFENCE TO BE CHEATING ,IT REQUIRES NOT MERE DECEPTION BUT DECEPTION COUPLED WITH DELIVERY OF PROPERTY OR TO DO CERTAIN ACTS WHICH ARE DETERIMENTAL TO HIS INTEREST.
In G.V.Rao v. L.H.V Prasad and otherss case, (cited supra), the Hon'ble Supreme Court has held that there should have been inducement, either dishonestly or fraudulently, and because of such inducement, the person induced should have done or omitted to do something which she would not have otherwise done or omitted to do. As I have already stated, in this case, absolutely there is no such material on record to satisfy the above requirement.
The judgment in Gopu Seshasayee v. State case Madras High Court has reiterated that mere deception is not a criminal offence. Mere dishonestly is also not a criminal offence. This Court has held that there are two elements in the offence of cheating, namely deception or dishonest intention to do or omit to do something. This judgment also reaffirms the view which I have taken herein before.
ILLUSTRATIONS :-
A prostitute , who while suffering from AIDS , communicates the disease to a person who has sexual intercourse with her may be charged with cheating under section 417 or 420 . IN Rakma (1886)11 Bom 59 - a prostitute communicated syphilis to a man who had sexual intercourse with her on the strength of her representation that she is free from diseases . She was held guilty of cheating .
Ravichandran v. Mariammal (1992 Crl.L.J 1675) . That was a case where the accused made a representation in the shape of promise that he would marry her(complainant) in due course and made her to accept his request for sharing bed together and accordingly, they shared the bed which resulted in pregnancy. When the pregnancy came to light, the accused declined to marry her. The accused was prosecuted for offence of cheating punishable under Section 417 I.P.C. Seeking to quash the said proceeding, the accused had approached this Court under Section 482 Cr.P.C. While dismissing the said petition, in paragraph No.8 of the order, Madras High Court has held as follows:-
The averments in the complaint, do prima facie, point out false representation said to have been made by the petitioner, in the sense of himself making a promise to marry her, and believing such a promise, the respondent succumbed to his carnal desire, in the sense of sharing her bed with him at his request. But for the representation so made and the deception practiced on her, she would not have been a party for sharing her bed with the petitioner, on the relevant date, which is said to have resulted in her becoming pregnant. The allegations as stated in the complaint do prima facie, establish an offence under S.417 I.P.C., requiring him to undergo the ordeal of trial. Further, the Court below has already examined 8 witnesses after taking the complaint on file with subjective satisfaction that a prima facie had been established against the petitioner
In Chitra v. Ravikumar and another (2002 (4) CTC 683). That was also a similar case of promise; sharing bed; then the victim became pregnant and thereafter the accused declined to marry the victim. The accused was convicted under Section 417 I.P.C., in the said case.
A judgment of a Division Bench of the Calcutta High Court in Abhoy Pradhan v. State of W.B (1999 Cr.L.J 3534). That was a case where the accused was convicted for offence under Sections 376 and 420 I.P.C., on the allegation that under the promise of marriage, the accused had sexual intercourse with the victim. The Division Bench while acquitting the accused in the said case, has held that the mere promise to marry and later on withdrawing the said promise will not amount to an offence of cheating as defined in Section 415 I.P.C. In the said judgment, the Division Bench has held as follows:-
"16.We find from the complaint as well as from the evidence on record that the appellant sincerely wanted to marry the complainant. When he proposed to marry the complainant, his parents assaulted him and drove him out from their house. From these facts, we are unable to hold that appellant made any false promise/representation/assurance to the complainant with knowledge that such promise/representation/assurance was false in any manner. On the contrary we find that it is the specific case of the complainant as stated by her in her complaint as well as in her deposition that the appellant was all through serious and sincere to marry the complainant. This subsequent failure to marry the complainant does not prove that when he made such promise/representation/ assurance were false. Otherwise, the very distinction between ordinary breach of promise/contract and the offence of cheating would disappear. We are, therefore, of the firm opinion that the facts attributed to the appellant do not amount to any attempt to create any false conception of facts in the mind of the complainant or that the appellant at that time had any intention to deceive the complainant. In view of the aforesaid clear admissions made by the complainant in most unambiguous terms in her complaint as well as in her deposition, we are constrained to hold that appellant never practiced any deception upon the complainant nor did he make any attempt to create some false conception of facts in a mind of the complainant. This being so, we have absolutely no hesitation in our mind to hold that the appellant neither committed the offence of rape nor any offence of cheating as defined in Sections 375 and 420 I.P.C., respectively."
In the case of Jayanti Rani Panda v. State of W.B. (1984) Cri. L.J. 1535, the Calcutta High Court concluded as follows:
The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she became pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90, IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the court can be assured that from the very inception the accused never intended to marry her.
Calcutta High Court
Hari Majhi vs The State on 26 September, 1989
The first charge against the accused was that he had sexual intercourse with Aloka Majhi against her will or without her consent. The second charge was that the accused cheated the said Aloka Majhi is that he induced her intentionally by giving false assurance to her that the accused would marry her and by such inducement she was seduced by the accused for making sexual intercourse. It is well settled that in order to bring home the charge of cheating, it is not sufficient to prove that a false representation had been made, but it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant. There was love between the accused and the complainant. The accused used to give her assurance at the time of sexual intercourse that he would marry her. No one has said that she would not have agreed to the sexual intercourse but for the alleged promise of marriage. She admits that she loved the accused. The trouble really started, as it appears, when the accused, perhaps, intended to marry another girl. The evidence would go to show that the appellant had no doubt committed sexual intercourse with the prosecutrix, but such an intercourse was done with the tacit consent, if not express consent of the prosecutrix. For the reasons aforesaid, this appeal is allowed. The conviction and sentence of the accused are set aside.
The facts in Moni Gogoi v. Smti. Sarumani Hazarika, (1992) 2 GLR 113, were also more or less identical and the accused promised the complainant that he would marry her and on that understanding, he requested her to have sexual intercourse with the complainant, who became pregnant and gave birth to a child. The accused deserted the complainant and refused to marry her. The learned Single Judge (hon'ble S.D. Roy, J, as his lordship then was) set aside the order of conviction and acquitted the accused holding, inter alia, as follows:
"There is no evidence on record that at the time of making such promise/ assurance or at the time of cohabitation, petitioners made such promise to the complainant that he would marry her with knowledge that ultimately he would not marry to complainant. Had the petitioner made the promise honestly and bona fide during or before the alleged intercourse then the petitioner could be convicted under Section, 417 IPC for his failure to keep the promise. There may be hundreds of factors for which an accused may fail to keep his promise. He may even change his mind for various reasons, foul or honest. Failure of the petitioner to keep the promise to marry the opposite party may under the circumstances of the case amount to mere breach of promise/contract. In view of illustration (g) appended to Section 415, IPC it is evident that breach of promise/contract simpliciter without any proof of the fact that such promise/representation was made by the petitioner with knowledge that he would not marry the opposite party will bring the case within the meaning of Section 415, IPC and Section 417, IPC."
In Moran Chandra Paul v. State of Tripura (1996) 2 GLR 15, the allegation of Swaraswati Paul was that the accused forcibly cohabited with her by tempting her with his promise to marry her soon and, following such cohabitation, she became pregnant and gave birth to a child. The trial court convicted the accused under Section 376, IPC and this court, on consideration of the evidence on record, held that cohabitation was with the consent of the prosecutrix and as such, no offence of rape is made out. However, this court, while convicting the accused under Section 417, IPC, held as follows:
"This is not to say that the appellant has not committed any offence at all. In fact the trial court has taken a view in the impugned judgment that the appellant was guilty of the offence of cheating under Section 417 of the IPC, but did not convict him for the said offence as no charge had been framed against the appellant under Section 417 of the IPC. In my opinion if the trial court had doubts as to which of the two offences the appellant had committed, sufficient powers were available under Section 221(2) of the Criminal P.C., 1973 to convict the appellant of the offence of cheating under Section 417 read with Section 415 of the IPC if it appeared from the evidence that he had committed an offence different from that for which he had been charged. The evidence of Smti, Saraswati Paul (P.W.2) is clear that she was induced to sexual intercourse with the appellant on a word being given by the appellant that he will marry her and such evidence of a woman of society given at the cost of her reputation cannot be disbelieved by the court except for extraordinary reasons. Regarding the contention of Mr. Roy that Dr. Sukumar Poddar, P.W. 8, has stated, that the woman who delivered the child was identified to him as the wife of Nimai Paul and not Saraswati Paul, it was natural for the family of Saraswati Paul to suppress that fact of delivery of the child by Saraswati Paul at that stage. In fact P.W.8 has himself clarified in his absence that only the day after delivery of the child he came to learn that it was Saraswati Paul who has delivered the child. Similarly, the fact that P.W.6 has denied that any meeting was held in his house does not in any way affect the evidence of P.W. 2. The appellant, therefore, was guilty of the offence of cheating as defined in Section 415 of the IPC and was accordingly liable for punishment under Section 417 of the I.P.C."
In the case, Ramautar Choukhany v. Hari Ram Jodi and Ors. (1902) Crl. L.J. 2266, held that mere failure to fulfil the promise may not constitute the offence of cheating. However, there may be cases, where there was dishonest intention at the very inception, which can be inferred under the facts and circumstances of the case. There may be cases, where a person, already married, dishonestly induces another woman to have sexual intercourse with him on the assurance that he is going to marry her, although at the time of making the above promise, the person knows fully well that he is not going to honour his words and the promise has been made solely for the purpose of enjoying the body of the prosecutrix.
Gauhati High Court
Bipul Medhi vs State Of Assam on 10 August, 2006
When an accused makes a false promise to marry, which he never intends to carry out, and induces thereby the victim, so deceived, to have with him sexual act, which the victim would not have indulged in or permitted, had she not been induced by such deception and, when such act of having sexual intercourse by her with the accused causes, or is likely to cause, damage or harm to her body, mind or reputation, the act of the accused would amount to cheating. Thus, when a woman is induced to part with her chastity or virginity, which is the most valued possession of hers, the person, who so induces the woman by making false representation, would be liable for punishment under Section 417, IPC if the victim's having sexual intercourse, with such a person, causes or is likely to cause harm to her body, mind or reputation, for, in such a case, unless so deceived, the victim would, not have permitted sexual act by the accused. To put it differently, had such a victim not been deceived, she would not have permitted sexual act or would have refrained from allowing such sexual act and, clearly in such a case, but for her permitting such sexual act, she would not have suffered harm to her body, mind or reputation. Even when no parting of property is occasioned by deception, the deception may still amount to cheating if, as a result of the deception, a woman does anything or omits to do anything, which she would not have, but for such deception, done or omitted to do, it logically follows that when an accused, not intending to marry a woman, induces the woman, so deceived, to have sexual intercourse with him or induces such a woman to omit from resisting the act of sexual intercourse by him with her, the act of the accused of having sexual intercourse with such a woman would amount to offence of cheating if the act of the woman in letting such a man have sexual intercourse with her or the act of the woman in omitting to resist the act of sexual intercourse by such a man with her causes or is likely to cause damage of harm to the person of such a woman, her mind or reputation.
Some illustrations of cheating :-
Where accused secretly entered an exhibition building without having purchased a ticket , it was not cheating .
However , If accused said to gate keeper that he has ticket and there by obtains his entry into the building , he will be guilty of cheating .
Where a railway passenger travelled in a Higher class having a ticket of lower class it was held not to be cheating. However where a man attempts to evade railway charges by showing an old railway pass which in which date is altered and he is caught , he is guilty of attempt to cheat.
Similarly , taking mere thumb impressions on a blank paper is not attempt to cheat or cheating if nothing further is done after taking thumb impressions.
Claiming degrees and qualification which one does not possess or having a board indicating those qualification is an attempt to cheat. (State v. C. K. Bharathan 1989 Crlj Kerela 2025)
Similarly , a person who takes money and procures driving licences for applicants without necessity for any tests is guilty of cheating.
Infringement of a trademark or counterfeiting is cheating as well .
If accused gives a cheque which is dishonoured , he will be guilty of cheating .
Under English law , deception can even be implied . When a man issues a cheque to another , he impliedly represents that he has an account at the bank , that the cheque would be honoured as he has requisite amount . If things turn out to be otherwise , then he would have impliedly cheated the complainant impliedly by inducing him to accept a valueless cheque . (Page (1971) 2 ALL ER 870)
5 : Cause Damage to body mind reputation property - It is necessary that harm must happen to person deceived not to third person .
Ram Jas vs State Of U.P on 11 September, 1970
In the present case, the finding of fact recorded only shows that' the Oath Commissioner was induced to attest the affidavit by the deception practised by the appellant in wrongly identifying a person as Govind Ram when he was in fact not Govind Ram. That act done by the Oath Commissioner of attesting the affidavit could not, however, possibly cause any damage or harm to the Oath Commissioner in body, mind, reputation or property. The Oath Commissioner was obviously not induced to deliver any property to anybody by this wrong identification, nor was he induced to consent that any person should retain any property. Thus, the facts found did not constitute the offence of cheating at all. The conviction for an offence under section 419, substantively or with the aid of section 109, I.P.C., could only have been justified if the facts proved constituted all the ingredients of the offence of cheating.
As observed by Apex Court in Jaswantrai Manilal Akhaney vs. State of Bombay, AIR 1956 SC 575, a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad vs. State of West Bengal, AIR 1954 SC 724 that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered.
In Queen vs. Dabee Singh and others, (1867) Weekly Reporter (Crl.) 55, the Calcutta High Court convicted a person under Section 417 who had brought two girls and palmed them off as women of a much higher caste than they really were and married to two Rajputs after receiving usual bonus. It was further held that the two Rajputs who married the two girls on the faith that they were marrying women of their own caste and status, were fraudulently and dishonestly induced by deception to do a thing (that is to say, to marry women of a caste wholly prohibited to them) which but for the deception practised upon them by the accused, they would have omitted to do.
Queen-Empress v. Ramka Kom Sadhu, ILR (1887) 2 Bombay 59, it was held that a prostitute may be charged for cheating under Section 417 if the intercourse was induced by any misrepresentation on her part that she did not suffer from syphilis.
Queen vs. Puddomonie Boistobee, (1866) 5 Weekly Reporter (Crl.) 98, a person was induced to part with his money and to contract marriage under the false impression that the girl he was marrying was a Brahminee. The person who induced the complainant into marrying that girl was held liable for punishment under Section 417 IPC.
Supreme Court of India
Abhayanand Mishra vs The State Of Bihar on 24 April, 1961
The appellant applied to the Patna University for permission to appear at the 1954 M. A. Examination in English as a private candidate representing that he was a graduate having
obtained his B. A. Degree in 1951 and that he had been teaching in a certain school. Believing his statements the University authorities gave him the necessary permission, and on his remitting the requisite fees and sending copies of his photograph, as required, a proper admission card for him was dispatched to the Headmaster of the School. As a result of certain information received by the University, an investigation was made and it was found that the appellant was neither a graduate nor a teacher as represented by him and that in fact he had been de-barred from taking any University examination for a certain number of years on
account of his having committed corrupt practice at a University examination. He was prosecuted and convicted under s. 420 read with s. 511 of the Indian Penal Code, of
the offence of attempting to cheat the University by false representations by inducing it to issue the admission card, which if the fraud had not been detected would have been ultimately delivered to him. The appellant contended that on the facts found the conviction was unsustainable on the grounds (1) that the admission card had no pecuniary value and was therefore not property under S.415, and (2) that, in any case, the steps taken by him did
not go beyond the stage of preparation for the commission of the offence of cheating and did not therefore make out the offence of attempting to cheat.
court held - "A dishonest concealment of facts is a deception within the meaning of this section." The appellant would therefore have cheated the University if he had (i) deceived the University; (ii) fraudulently or dishonestly induced the University to deliver any property to him; or (iii) had intentionally induced the University to permit him to sit at the M.A. Examination which it would not have done if it was not so deceived and the giving of such permission by the University caused or was likely to cause damage or harm to the University in reputation. There is no doubt that the appellant, by making false statements about his being a graduate and a teacher, in the applications he had submitted to the University, did deceive the University and that his intention was to make the University give him permission and deliver to him the admission card which would have enabled him to sit for the M.A. Examination. This card is 'Property'. The appellant would therefore have committed the offence of 'cheating' if the admission card had not been withdrawn due to certain information reaching the University."
" A person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
In the present case, the appellant intended to deceive the University and obtain the necessary permission and the admission card and, not only sent an application for permission to sit at the University examination, but also followed it up, on getting the necessary permission, by remitting the necessary fees and sending the copies of his photograph, on the receipt of which the University did issue the admission card. There is therefore hardly any scope for saying that what the appellant had actually done did not amount to his attempting to commit the offence and had not gone beyond the stage of preparation. The preparation was complete when he had prepared the application for the purpose of submission to the University. The moment he dispatched it, he entered the realm of attempting to commit the offence of 'cheating'. He did succeed in deceiving the University and inducing it to issue the admission card. He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher."
Supreme Court of India
Ram Prakash Singh vs State Of Bihar on 24 October, 1997
It was alleged by the prosecution that accused hatched a criminal conspiracy and in pursuance thereof introduced some false and fake insurance proposals to the Corporation in the name of non-existing person as also without the knowledge and consent of the insurer in order to ear undue credit and promotions in the LIC on the basis of their inflated business.
It was then contended in support of appeal that there was no loss to the Corporation since the insurance policies were not issued. It was also urged that the appellant also did not gain any benefit out of these proposals..
Apex court held - "It is true that policies were not issued and, therefore, no benefit as such was accrued to the appellant but the LIC had led evidence before the Court to show that the Corporation had to spend money on stationery as well as the clearance charge etc. It was in these circumstances, the High Court had held that there was a loss, might be negligible, to the Corporation but the fact remains that the appellant sought to take advantage of his inflated business. Conviction for cheating was upheld under section 420. "
Supreme Court of India
Jibrial Diwan vs State Of Maharashtra on 24 July, 1997
The case of the prosecution is that two letter Exh. 28 and Exh. 29 were prepared on the letter head of the Minister, whereupon invitations were written to invite Raja Murad, and Javed Khan PWs. These letters were allegedly forged for these did not bear the signature of the Minister. The show was held on the day scheduled. The show was held on the day scheduled. The invites came on the basis of those forged letters. The role of the appellant was that he had delivered those two forged letters to the recipients. For that act, even though he was acquitted by the trial court, the High Court has convicted him for offence under Section 417, Section 471 read with Section 465 IPC and awarded him sentences as disclosed in the judgment under appeal. Held - "It bears repetition that the appellant was not the forgerer of those documents. Section 471 enjoins that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 465 provides that whoever commits forgery;, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Now the words 'dishonestly' has been defined to mean that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'. The word 'fraudulently' has been defined to mean that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. This court in Dr. S. Dutt v.state of U.P AIR 1966 SC 523 has explained the words intent to defraud' as being not synonymous with words `intent to deceive'. It requires some action resulting in a disadvantage which but for the deception the person defrauded would have avoided. here by the delivery of forged letters, there is neither any wrongful gain to anyone nor any wrongful loss to another. The act of the appellant could not thus be termed to have been done dishonestly. Likewise the appellant cannot be said to have any intention to defraud because his action resulted in no disadvantage to any one which but for the deception the person defrauded would have acted otherwise. The basic ingredients of the act done `dishonestly' or `fraudulently' being missing, the charge under Section 471 read with 465 IPC was totally misplaced and the High Court fell into an error in convicting the appellant on those charges. So far as the conviction under Section 417 is concerned, the High Court has ignored the definition of `cheating' provided in Section 415 IPC. The High Court has gone to hold that the accused cannot be held guilty for offence under Section 420 IPC because there was no cheating of any valuable or property involved in the act or omission of the appellant. It has just been concluded therefrom that the appellant would, therefore, be guilty for offence under Section 417 IPC. What is deducible is that the High Court perhaps thought that the act or omission of the appellant was not covered in the first part of offence of `cheating' as defined in Section 415 IPC. If so the act or omission of the accused could not in any event fall in the later part because we fail to see how the act or omission of the appellant caused or was likely to cause harm to any person in body mind or repetition. Thus the conviction of the appellant or offence under Section 417 was also totally out of place and the verdict on that score deserve reversal."
Supreme Court of India
Manoranjan Das vs State Of Jharkhand on 21 April, 2004
The accused introduced a person to the bank only for opening an account . It was held that by itself could not spell out an intention to commit fraud.
Supreme Court of India
Sri Bhagwan Samardha Sreepada ... vs State Of Andhra Pradesh & Ors on 15 July, 1999
Appellant represented to have divine healing powers through his touches, particularly of chronic diseases. Complainant approached him for healing his 15 year old daughter who is congenitally a dumb child. Appellant assured the complainant that the little girl would be cured of her impairment through his divine powers. He demanded a sum of Rs.1 lac as consideration to be paid in instalments. The first instalment demanded was Rs.10,000/- which, after some bargaining, was fixed at Rs.5,000/-. Complainant paid that amount and later he paid a further amount of Rs.1,000/- towards incidental expenses. He waited eagerly for improvement of his dump child till 1994 which was the time limit indicated by the appellant for the girl to start speaking. As the child remained the same, complainant began to entertain doubts. Appellant postponed the time limit till August 1994 for the girl to develop speech capacity. A little more amount of Rs.516/- was collected for performance of a yagyan. But unfortunately nothing of such thing brought about any change in the girl. In the meanwhile, news of some other persons defrauded by the appellant reached the ears of the complainant as newspapers started publishing such other activities indulged in by the appellant. In one such publication it was mentioned that the appellant had mobilised more than a crore of rupees from different devotees. It was then that the complainant realised the fraud committed by the appellant, according to the complainant. Hence a complaint was lodged with the police for cheating.
Court held - "If somebody offers his prayers to God for healing the sick, there cannot normally be any element of fraud. But if he represents to another that he has divine powers and either directly or indirectly makes that another person believe that he has such divine powers, it is inducement referred to Section 415 of the IPC. Anybody who responds to such inducement pursuant to it and gives the inducer money or any other article and does not get the desired result is a victim of the fraudulent representation. Court can in such a situation presume that the offence of cheating falling within the ambit of Section 420 of the IPC has been committed. It is for the accused, in such a situation, to rebut the presumption."
Poovalappil David And Another v. State Of Kerala
Accused used to turn of A/C for saving electricity after people entered the theatre . Tickets were purchased on basis that theatre was a/c cooled . He was held liable for cheating.
Patna High Court
Akhil Kishore Ram vs Emperor on 26 November, 1937
FOLLOWING ADVERTISMENT WAS DISPLAYED :-
The advertisement Ex. 1 says:
GUPTA MANTRA.
A reward of Rs. 100.
The objects which cannot be achieved by-spending lacs of rupees may be had by repeating this Mantra seven times. There is no necessity of undergoing any hardship to make it effective. It is effective without any preparation. She whom you want may be very hard-hearted and proud, but she will feel a longing for you and she will want to be for ever with you, when you read this Mantra. This is a "Vashi Karan Mantra." It will make you fortunate, give you service, and advancement, make you victorious in litigation, and bring you profits in trade. A reward of Rs. 100,if proved fallible. Price, including postage, etc., Rs. 2-7-0.
Sidh Mantra Ashram, No. 37, P.O. Katri Sarai, Gaya.
Those who answered this advertisement received a printed paper headed "Gupta Mantra." A formula follows and then the instructions:
Read the Mantra seven times and look at the moon for fifteen minutes without shutting up your eyes even for a moment. Have a sound sleep with desired object in your heart after that and you will succeed.
I. You should take only the milk of cow, fruit and sweets of pure fresh cow's milk during the day and night time, you should bathe at night and make your mind pure before you begin this process.
II. No other person should be taken into confidence however dear and nearly related he may be to you. If you allow such things it will lose its effects as it is so prepared that it can be used by only one man and that with strict secrecy.
court held - "the advertisement is shrewdly drawn to disarm the suspicion with which at first sight the average newspaper reader is apt to regard magic, wizardry and incantations. The reward of Rs. 100 is placed in the forefront No time is lost in putting forward this assurance of genuineness in the headline and at the foot again it is said "a reward of Rs. 100 if proved fallible". Prospective purchasers are left to hope that by seven times repeating the Mantra they will attain their object whatever it may be with the assurance that in the event of failure they will get Rs. 100 reward and in case they should still be so sceptical as to wonder whether there is not a catch somewhere, there is the added assurance that the Mantra is effective without preparation and without the necessity of undergoing any hardship. If one may judge by the internal evidence, these compositions are the work of no ascetic or dreamer but of a hard-headed business man with organizing capacity and a flair for publicity. We know that he advertises widely and employs a staff of four clerks. The elements in human nature to which the appeal is made are not industry and patience but laziness and greed. The accused was liable to be sentenced to seven years' imprisonment."
Supreme Court of India
Tulsibhai Jivabhai Changani vs State Of Gujarat on 12 December, 2000
Appellant had been convicted and sentenced for offences under Sections 198, 420 and 471 I.P.C. on the ground that he knew that a Marksheet produced by him was false and still he used that Marksheet for gaining admission to Polytechnic Course in 1986.The trial court whilst convicting the Appellant has noted that it was not proved that the Marksheet had been forged by the Appellant. The trial court, however, held that there was a possibility that the Appellant had either himself or through somebody else got the Marksheet amended. The trial Court found that the Appellant was aware that this was not the correct Marksheet and had still used it to gain admission. Apex court upheld the conviction.
Madhya Pradesh High Court
Shankerlal Vishwakarma vs State Of Madhya Pradesh on 27 November, 1990
"The notion of trust ordinarily speaking, presupposes the existence of a person who is a trustee or to whom some property is entrusted in confidence reposed by another. This relationship presupposes that the confidence has been freely given. But a person who tricks another into delivering him property does not partake of the nature of a trustee. His intention from the beginning is to trick the person, who entrusts him that property....... If, therefore, the property is acquired by trick or by any other unlawful means, there is no entrustment and if the acquirer if these circumstances appropriates that property to his own use (for consents to any other person retaining that property) he cannot be said to have committed an offence of criminal breach of trust because in that case there is practically no trust created by the owner of the property. In such a case he commits cheating."