P L D 1961 Dacca 53 (PLP)

6. Mr. Abdus Salam Khan, learned Advocate appearing on behalf of the petitioner has urged that the facts proved in this case do not constitute a criminal offence, inasmuch as there is no allegation or evidence of initial intention to deceive. The facts proved in this case clearly indicate that it is a case of breach of contract and as such the complainant has got remedy in the Civil Court and in fact he has filed a Civil suit for specific performance of the alleged contract.

7. Now in this case both the Courts below have found that there was an agreement between the petitioner and the com plainant that the petitioner would sell 15 gandas of his land to the complainant‑opposite party for Rs. 1,800 and as a part. payment of the said price of land the petitioners accepted Rs. 1,.000 as earnest money from the complainant by executing a receipt in presence of the attesting witnesses thereof stipulating therein to execute a kabala within a month on payment of this balance of Rs. 800 and that the petitioner also made over the title deeds of the said land to the complainant and subsequently the petitioner denied the transaction in toto at a shalish called by the com plainant.

8. The offence of cheating has been defined in section 415 of the Pakistan Penal Code and it runs thus: "Whoever, by deceiving any person fraudulently or dis honestly 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." Explanation :"A dishonest concealment of facts is a decep tion within the meaning of this section." Illustration (g) to the said section is to the following effect : "A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plaint which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plaint, and afterwards break his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract."

9. For the above it is clear that in a case like this in order to constitute cheating, it must be established by the prosecution that the complainant was made to part with the money on the promise of the accused petitioner that he would execute a kabala of his land in lieu thereof which the petitioner had no intention to execute. In other words, criminal intent at the time of the alleged bargain must be established for conviction under section 420 of the Pakistan Penal Code. This view is supported by the decision of a Division Bench of this Court in the case of Pirthiraj Bachaoli as Prithiraj Bucha v. The State (P L D 1959 Dacca 88), in which it has been held: "In order to constitute cheating it must be established that some one is made to part with some property on the promise of another to return something in lieu thereof which the latter had no intention to give. The initial intention to deceive, therefore, must be established in order to justify a conviction for cheating.

10. In laying down this principle of law the learned Judges of this Court followed the case of Emperor v. Debendra Prosad (13 C W N 728) and the case of Harnam Singh and another v. Emperor (38 Cr. L J 845). In the former case it was held that the test in cases of cheating is not what he did months afterwards, but what was in his mind at the time when, and under what circumstances, he received the money from the complainant and whether the accused then intended to pay what he promised to pay. In the latter case it was held that the criminal intent at the time of the alleged bargain must be established for conviction under section 420 of the Penal Code. The mere fact that the accused denied the transaction at the trial and refused to return the money, does not necessarily show that they had a criminal intent from the beginning and their denial may merely amount to the usual mistaken attempt to protect themselves from the result of the prosecution.

11. In the case of Sheosagar Pandey v. Emperor (37 Cr. L J 1936), it has been held: "Mere breach of a contract cannot give rise to 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 which may be judged by his subsequent act is not the sole criterion. 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 and where the party said to be aggrieved has an alternative remedy in the Civil Court, the matter should not be allowed to be fought in the Criminal Courts." It would therefore, be seen whether the above principles of law are applicable to the facts found in this case.

12. Mr. A. S. Chowdhury, counsel, has contended that these principles are not at all applicable to the facts of the present case inasmuch as, in this case it has been found by both the Courts below that the petitioner had the initial intention to deceive the complainant, which has been proved by the fact that he lodged a false G. D , entry as to the missing of the documents which has been found by both the Courts below to have been made over to the complainant by the petitioner at the time he entered into the contract and accepted the earnest money of Rs. 1,000 promising to execute a kabala within a month on receipt of the balance of the consideration. Both the Courts have found as a fact that the petitioner made over the title deeds of the land in question to the complainant at the time when a receipt which purports to be an agreement Exhibit 1 to sell the land to the complainant was granted by the petitioner. Both the Courts below have also found that the petitioner lodged a false G. D. entry with ulterior motive to deceive the complainant.

13. From the above findings of fact there can be no doubt that the petitioner had the intention to deceive the complainant, that is, he had no intention to execute the kabala on receipt of the balance of the consideration money after accepting earnest money of Rs. 1,000 Mr. Khan has argued that the petitioner has filed a theft case against the complainant for the theft of the documents in question and that the complainant has also filed a civil suit for specific performance of contract and as much it cannot be said at this moment that the petitioner lodged a false G. D., entry and that criminal action does not lie against the petitioner. This contention of the learned Advocate cannot be given effect to inasmuch as the alleged theft case has been filed after this case and the complainant filed the civil suit also after the conviction of the petitioner. The conviction of the petitioner under section 420 of the Pakistan Penal Code for cheating does not debar the man cheated from filing a civil suit for specific performance of contract or for return of the money taken by the petitioner by practising deception.

14. Mr. Khan has also urged that both the Courts below erred in law in holding that the receipt Exhibit I was granted by the petitioner without a proof by the hand‑writing expert that the signature in receipt is that of the petitioner. This contention is not at all acceptable in view of the fact that the appellate Court as a final Court of fact, accepting the evidence of P. Ws. 2, 3 and 4 has found that the transaction and the receipt in question have been proved. In view of the facts and circumstances of this case it was not at all necessary to have any expert opinion with regard to the signature of the petitioner.

15. Lastly Mr. Khan has urged that the examination under section 342 of the Criminal Procedure Code has been improper and has caused the accused petitioner serious prejudice. According to him the accused was not asked in his examination under section 342 of the Criminal Procedure Code whether the signature in the receipt was that of his. I do not find any substance in this contention. It would appear from the accused's examination under section 342 of the Criminal Procedure Code that he was definitely asked as to whether he signed the receipt. So it cannot be said that the provisions of section 342 of the Criminal Procedure Code were not duly complied with. In the result, the rule is discharged. K. B. A Rule discharged.