JUDGMENT - V. D. TULZAPURKAR, J.:---This appeal has been preferred by one Phillip Simon Kallath (original accused) against his conviction under section 420 of the Indian Penal Code and sentence of six month rigorous imprisonment and a fine of Rs. 1,000 imposed by him by the learned Presidency Magistrate, 28th Court, Esplanade, Bombay on 23rd July, 1973 in Criminal Case No. 313/P/72. 2. The charge against the appellant---accused was that in the month of May 1970, at Greater Bombay he induced the complainant Rajeshkumar P. Dave to part with a cash of Rs. 98,000 under the false pretext of producing a picture styled as "Asha" and on further representation that actress Saguna and actor Biswajeet were acting in the said film and that the complainant would be taken as an associate producer of the film and thereby the appellant-accused has committed an offence punishable under section 420 of the Indian Penal Code. 3. The prosecution was instituted by the complainant by lodging a complaint dated 25th March, 1971 with the Deputy Commissioner of Police, General Branch, C.I.D. Bombay and the complainants case was that prior to May, 1970 he was residing at Vidhyanagar Anand and was carrying on business of palmistry and astrology there. But from the very beginning he was interested in production of movies, particularly producing a Gujarati movies. His case further was that in the first week of May, 1970 after coming to Bombay he contacted one Devendra Prasad Singh whom he knew for the past about 15 years and to whom during the latters visit at Anand he had told about his ambition to produce a Gujarati picture. Devendra Prasad Singh told him that he (Devendra Prasad Singh) was then engaged as a Director of a certain film inoculated Asha produced by one P.S. Kallath (accused under the banner of Vivia Arts (Madras) and that he would introduce him (complainant) to the accused. Accordingly, Devendra Prasad Singh arranged the meeting between the complainant and the accused at the latters residence near Bandstand at Bandra. During this meeting a general talk took place about the movies and production thereof and Devendra Prasad Singh told the accused about his (complainants) desire and ambition to produce Gujarati picture. Accordingly, Devendra Prasad Singh arranged the meeting between the complainant and the accused at the latters residence near Bandstand at Bandra. During this meeting a general talk took place about the movies and production thereof and Devendra Prasad Singh told the accused about his (complainants) desire and ambition to produce Gujarati picture. There were further meetings at the residence of the accused and according to the complainant, the accused suggested to him that if he was really interested in producing a picture with limited finance he (complainant) should join him as an associate producer in the production of his movie initiated Asha whereupon he enquired of the accused as to how much investment would be required. He further told the accused that he had made arrangements for Rs. 30,000/- and could further arrange for a total amount of Rs. 50,000/-. In yet another meeting which took place on 9th May, 1970 according to the complainant the accused made certain representations which were as follows:--- (a) That the accused was producing film initiated Asha under the banner of Vivia Arts (Madras); (b) That in that film the accused had taken Biswajeet as hero, Saguna as heroine, Sagunas sister Rani in a character role along with number of other artists; (c) The accused had taken Shri Jaideo as Music Director and that he had already recorded four songs wherein playback was given by Mohd. Rafi, Lata Mangeshkar and Asha Bhosle; (d) That the shooting of his film had already started and that all arrangements were to be made to complete the film within three months but further progress was held up for want of finance; (e) That the accused had already invested Rs. 3 lacs and that his investment would have been much more but the fact that Saguna being his wife and Rani being sister-in law were to work on credit and that the would be paid only after the release of the said picture; (f) That Biswajeet being his friend had also agreed to work for his film and would receive the balance amount on the release of the picture; (g) That he was in need of Rs.50,000 and he was unable to arrange for further amount himself because he had borrowed enough for the said film; (h) That if the complainant helped him in advancing Rs. 50,000 as loan, the accused would give him the credit of being his associate producer of the film and that the complainant would not only gain experience but would also get name, fame and money by working with the accused. (i) That no sooner Rs. 50,000 were arranged for, the accused would complete the film within three months and would return that amount to the complainant within that period. According to the complainant, Devendra Prasad Singh who was also with him at that time confirmed the aforesaid representations made by the accused and assured him that if the complainant made investment as suggested by the accused not only his money would be safe but he would be making good profit by earning name and fame. According to the complainant further it was on such representations that were made by the accused he was induced to make the investment as suggested by him. It was his case further that the accused even allowed him the use of his Impala car to go to his native place to fetch the finance and initially an agreement of 15th May, 1970 was entered into under which the accused agreed to take him as an associate producer of the film. Certain changes in the terms and conditions of this agreement were affected and thereafter a regular agreement was entered into on 29th May, 1970. It was his case further that on 28th May, 1970 in the morning the accused had gone to his residence along with Devendra Prasad Singh and there in the presence of his wife and Devendra prasad Singh he paid Rs. 50,000 to the accused. On that day the regular agreement dated 29th May, 1970 was executed by the parties and the earlier document namely the agreement dated 15th May, 1970, terms of which were altered to some extent later on was cancelled. The complainants case was that according to this agreement dated 29th May 1970, the accused agreed to take him as his associate producer and to give him due publicity likewise and further agreed to pay him Rs. 50,000 as remuneration being an associate producer on the completion of the picture intituled Asha in addition to the repayment of the loan of Rs. 50,000 advanced by him to the accused which was agreed to be returned within three months. 50,000 as remuneration being an associate producer on the completion of the picture intituled Asha in addition to the repayment of the loan of Rs. 50,000 advanced by him to the accused which was agreed to be returned within three months. It was also agreed according to the complainant that the accused was to pay him Rs. 1,000/- per month as and by way of his salary. The complainant case further was that in the first week of July, 1970, the accused gave him a cheque of Rs. 2,000 which was presented by him at the bank of 17th July, 1970 but the same was dishonoured; whereupon when he informed the accused about the dishonour of the cheque the accused expressed his regret and told the complainant to wait for sometime. He also enquired of the accused as to what had happened to the amount of Rs. 50,000/- already paid to him, to which the accused replied that he had already paid the same to different artists and was waiting for their suitable dates adding further that the complainant should not worry at all. According to him further in the first week of September, 1970, the accused had gone to his residence and told him that to give final touches to the picture he (the accused) would require further sum of Rs. 50,000/- or so and that if the said further finance was made available to him the complainant would not worry about the repayment thereof as the accused was prepared to offer his two flats in the ownership building known as "Viva" at Vile Parle as and by way of security and would give the charge on those flats in complainantss favour. When he (complainant) expressed his inability to arrange for that amount, the accused told him that if the complainant wanted credit for as an associate producer get name and fame the complainant will have to arrange for the same some how as the accused was in badly need of such finance. The complainants case further was that by about middle of September 1970, he could arrange the amount of Rs. 48,000 from one Savitaben Patel at Anand and immediately after coming to Bombay, he informed the accused on 17th September, 1970 about the arrangement made, and again in the presence of Devendra Prasad Singh, he paid the accused a further sum of Rs. 48,000 in cash. 48,000 from one Savitaben Patel at Anand and immediately after coming to Bombay, he informed the accused on 17th September, 1970 about the arrangement made, and again in the presence of Devendra Prasad Singh, he paid the accused a further sum of Rs. 48,000 in cash. According to the complainant on this occasion, the accused had brought certain typed document with him, one was a promissory note and the other was a letter. The accused executed the promissory note in complainants favour in respect of Rs. 48,000 which the complainant paid to him and by the letter the accused recorded that the said loan of Rs. 48,000 was for the purpose of completing construction of the accuseds building Viva at Vile Parle and that as and by way of additional security for the said amount of Rs. 48,000 he created a charge in complainants favour with respect to the flats being flat Nos. A-5 and A-6 standing in his name in that building. The accused by that letter further agreed and covenanted that till the amount of Rs. 48,000 was repaid in full he shall not deal with or alienate in any manner whatsoever the said two flats. According to the complainant, though these documents mentioned that the amount of Rs. 48,000 was as and by way of construction loan, it really represented the further finance, which the accused wanted for his film. The complainants case further was that thereafter the accused went on making promises that the moneys due under the agreement dated 28th May, 1970 would be paid towards the middle of January 1970 along with remuneration of Rs 50,000 as agreed and the arrears of salary due to him which he was entitled to as an associate producer for his picture intituled Asha. But in spite of waiting for considerable period, the accused did not repay any amount. According to the complainant, sometime in middle of October 1970, he learnt from Devendra Prasad Singh that the accused has started behaving arrogantly, that the accused had cheated him (Devendra Prasad Singh) and other members in the film industry and that the accused also appeared to have cheated the complainant to the tune of Rs 98,000. According to the complainant, sometime in middle of October 1970, he learnt from Devendra Prasad Singh that the accused has started behaving arrogantly, that the accused had cheated him (Devendra Prasad Singh) and other members in the film industry and that the accused also appeared to have cheated the complainant to the tune of Rs 98,000. In October 1970 he was sick and after he felt better some time in first week of January 1971 he contacted the accused at his residence and asked him about the production of film and the progress thereof. But to his surprise the accused behaved arrogantly and his behaviour had totally changed and the accused started giving evasive replies. When moneys were demanded, according to the complainant, the accused got wild and told him that he (accused) had no money and that the complainant was at liberty to do his worse if he could and asked him to get out of his premises. Thus, according to the complainant, the accused had duped him to the tune of Rs 98,000 that all the representations made by him were absolutely false, that not a single days shooting has been done and there were no steps taken in the direction of shooting the film and that not a single song has been recorded as represented. 4. After the complaint was filed with the Deputy Commissioner of Police, General Branch, C.I.D., the same was treated as F.I.R. and the Police commenced the investigation, during the course of which the accused was arrested on 27th March, 1971 and statements of witnesses were recorded by the Police. After completing the investigation a charge-sheet was submitted against the accused. The learned Magistrate framed a charge under section 420 of the Indian Penal Code against the accused as indicated at the commencement of this judgment. 5. The accused denied having committed the offence with which he was charged. But he admitted that he was a producer of the picture Asha which was his production No. 1. He further admitted that he had received Rs. 50,000 from the complainant as loan towards the production of the picture but denied that the complainant had paid him Rs. 98,000 as suggested. But he admitted that he was a producer of the picture Asha which was his production No. 1. He further admitted that he had received Rs. 50,000 from the complainant as loan towards the production of the picture but denied that the complainant had paid him Rs. 98,000 as suggested. His plea was that no false representations were at all made by him to the complainant and that as per the terms and conditions of the agreement dated 29th May, 1970 he had given publicity to the complainant as his associate producer of the film and that not only had some reels been shot before the finance was received from the complainant but even thereafter the shooting of the film had been done i.e. after the finance has been received by him from the complainant. His plea further was that he had spent a substantial amount of Rs. 2,30,000 as per the advice of Devendra Prasad singh, whom he employed as a Director for the film, but he (Devendra Prasad Singh) created trouble for him as a result of which his production No. 1 Asha could not be complete, but he was required to change the name of the picture from Asha to Kamna and that he was also required to engage the services of some additional artists and he was required to change the director for the shooting of his first production which was subsequently named Kamna. As regards the cheque of Rs. 2000 which was dishonoured by the bank his case was that after the cheque has been dishonoured by the bank he had paid Rs. 2,000 in cash to the complainant and he had obtained the dishonoured cheque from the complainant. His further defence was that in the month of September 1970, the three months period of the loan advanced by the complainant was over and that the amount advanced by the complainant had been spent after the new hero, publicity and other miscellaneous expenses of payment to technicians, unit staff etc., and at that time the complainant realised that the picture would require about 50 lacs for completion and that it was beyond the complainants capacity to arrange such huge finance. The complainant , therefore, became anxious about the repayment of his loan of Rs 50,000 as the film had not come up and as there was no security for the repayment of the loan, the complainant again approached him through Devendra Prasad Singh and requested him to arrange for the payment of the balance amount of Rs. 48,000 Rs. 2,000 out of Rs. 5,000 having been already paid in cash by him to the complainant when the dishonoured cheque was returned by the complainant to him to which he expressed is inability. The complainant and Devendra Prasad Singh suggested that the transfer of liability may be effected over the property built up by him. He, therefore, agreed to the same. Accordingly, on 16th September, 1970, the transaction of loan as and by way of film finance was cancelled and the liability was transferred as a construction loan security of flats being offered to the complainant. On 16th September, 1970, the complainant passed a writing regarding the cancellation of the agreement dated 16th May 1970 (it should have been 29th May, 1970) and discharging each other from any claims arising under the said agreement and the complainant also passed a receipt of having received Rs. 50,000 from him. On the next day, i.e. on 17th September, 1970 as per the understanding the necessary papers of creating the liability on property were executed by the accused in favour of the complainant. In other words, the accused executed a promissory note for Rs. 48,000 in favour of the complainant and also passed a letter in favour of the complainant creating a charge over the two flats belonging to him his building known as Viva at Vile Parle, Bombay. The accused thus contended that there was no question of receiving Rs. 48,000 from the complainant in addition to Rs. 50,000 which was admittedly received by him from the complainant on 29th May, 1970 and that the complainants version that he had been induced to part with a sum of Rs. 98,000 was totally false. He, therefore, denied that he had made any false representation as alleged by the complainant or that he had committed the offence of cheating as alleged by him. 6. 98,000 was totally false. He, therefore, denied that he had made any false representation as alleged by the complainant or that he had committed the offence of cheating as alleged by him. 6. At the trial, the prosecution led the evidence of as many as five witnesses namely, Rajeshkumar P. Dave, complainant (P.W. I.), Devendra Prasad Singh (P.W. 2); Madhava Shinde, who edited the picture Asha, (P.W. 3), Pravinchandra Manilal Shah, the Manager of Film Centre at Tardeo, Where the colour processing of the film Asha was done, (P.W. 4). and Paul Anthony Fernandes the Manager of Famous Cine Laboratory of Bhaindar, where the processing on sound of the film was done, (P.W. 5), Ramesh Honavar, S. I. General Branch Crime Branch, C.I.D. (P.W.6), gave formal evidence about the lodging of the complaint recording of the statement of the witnesses and the arrest of the accused etc. The accused examined Jaidev Verma, the Music Directory of the film as his witness. Apart from the aforesaid oral evidence, the documentary evidence was also produced at the trial which consisted of Exh. A the initial agreement dated 15th May, 1970 which was later on cancelled on 29th May, 1970. At Exh. B the regular agreement dated 29th May, 1970, was produced whereunder a sum of Rs. 50,000 was received by the accused from the complainant and terms and conditions of the employment of the complainant as an associate producer were recorded. The complainant produced at Exh. C the bank-memo dated 17th July, 1970 regarding the dishonour of the cheque of Rs. 2,000 that was issued by the accused to him. At Exh. E. (collectively) were produced two documents both dated 16th September 1970 one being letter signed by the complainant regarding the cancellation of the agreement Exh. B and the other being a receipt signed by the complainant acknowledging the receipt of Rs. 50,000 from the accused and at Exh. F the pronote dated 17th September 1970 was produced which was executed by the accused in favour of the complainant for Rs. 48.000 and at Exh. G was produced the letter dated 17th September, 1970 executed by the accused in complainants favour creating a charge for repayment of the loan of Rs. 48,000 on his two flats and recording a convenient not to dispose or alienate the two flats till the construction loan of Rs. 48,000 was repaid. 48.000 and at Exh. G was produced the letter dated 17th September, 1970 executed by the accused in complainants favour creating a charge for repayment of the loan of Rs. 48,000 on his two flats and recording a convenient not to dispose or alienate the two flats till the construction loan of Rs. 48,000 was repaid. On behalf of the accused the originals of the copies produced at Exh. E that the original letter dated 16th September, 1970 and the receipt dated 16th September, 1970 were produced at Exhs. 1 and 2 respectively and at Exh. No. 3 the dishonoured cheque for Rs. 2,000 was also produced. On behalf of the accused reliance was placed upon the advertisement (produced at Exh. D) appearing on the cover page of the Cine Magazine called "Chitrapat" showing the name of the complainant as the associate producer of the picture Asha. Similarly, reliance was also placed upon the two paper cuttings (produced at Exh. H collectively), one from The Sunday Standard, dated February 7, 1971 and the other from Screen dated February 12, 1971 that production No. 1 of Vivia Arts of Madras had been intituled as Kamna and shooting thereof has been done. On an appreciation of the evidence that was led at the trial the learned Magistrate disbelieved the version of the accused and accepted the prosecution case. He particularly, accepted the evidence of the complainant and Devendra Prasad Singh and held that the accused had committed the offence of cheating under section 420 of the Indian Penal Code. He, therefore, convicted him and sentenced him to suffer rigorous imprisonment for the period of six months and a fine of Rs. 1,000. It is this conviction and sentence that are challenged by the accused in the present appeal. 7. Mr. Venkateshwaran appearing for the appellant-accused has contended that the learned Magistrate has made a wrong approach to the entire case. In that he has merely considered the evidence of the complainant and his witness Devendra Prasad Singh and the other three witnesses but not taken into account the documentary evidence that was produced at the trial which clearly ran counter to the version of the complainant and supported the accuseds version. In that he has merely considered the evidence of the complainant and his witness Devendra Prasad Singh and the other three witnesses but not taken into account the documentary evidence that was produced at the trial which clearly ran counter to the version of the complainant and supported the accuseds version. He further urged that unwarranted inferences have been drawn by the learned Magistrate from the mere fact that the accused had started the production of the picture only with a capital of Rs. 3 lacs when the estimated expenditure for the production of the film was to the tune of Rs. 30 lacs. According to him, the learned Magistrate also erred in drawing the inference that the accused had never intended to produce or complete the picture right from the commencement particularly at the time when he obtained the finance of Rs. 50,000 from the complainant simply because neither the picture Asha not the changed picture Kamna was completed by the accused. He further pointed out that at more than one place the learned Magistrate has observed that the defence had led no evidence in support of his case when in fact the accused had examined Jaidev Verma, the Music Director, and the Director of the film Asha as defence witnesses. He contended that in fact the defence version could be said to have been clearly borne out by the documentary evidence that was produced on record and as against this documentary evidence, it was in error to merely rely upon the oral testimony of the complainant and his witnesses. He also pointed out that even the prosecution witnesses have admitted in their evidence that some reels had been shot before the accused obtained finance from the complainant and several feet of the film had also been shot as per the schedules even after the finance had been obtained by the accused from the complainant and if that was so it could not be said that the accused from the every beginning had no intention to produce or complete the picture Asha. According to him the complainant had really failed to establish that any false representation had been made by the accused to him and if that was so, the learned Magistrate ought to have acquitted the accused. On going through the entire material on record I find considerable substance in these submission made by Mr. According to him the complainant had really failed to establish that any false representation had been made by the accused to him and if that was so, the learned Magistrate ought to have acquitted the accused. On going through the entire material on record I find considerable substance in these submission made by Mr. Venkateshwaran in support of the appeal preferred by the accused against this conviction. 8. Before going to the oral evidence I would deal with the documentary evidence that is available on record. I have already summarised what the defence case was with regard to the transaction of finance of Rs. 50,000 said to have been advanced for his film Asha. Stated in brief the accuseds version was that he was producing the picture Asha for which he had engaged artists, that he had shot some few reels before the finance was obtained from the complainant. He merely obtained Rs. 50,000 from the complainant as a loan towards the production of his film and not Rs. 98,000. Some difficulties were created by the director Devendra Prasad Singh as a result of which he was unable to take further steps in the production of the picture and he was even required to change the director and take some new artists and that the name of the picture was also changed from Asha to Kamna and even after the name had been changed certain shooting had been done by the artists going on the sets. His case further was that when the complainant felt apprehensive about the repayment of his loan, out of which Rs. 2,000 had been paid by him in case when the dishonoured cheque issued by him was returned to him by the complainant. At the suggestion of the accused and Devendra Prasad Singh the character of the transaction was changed that is to say the loan which was initially a loan for as and by way of film finance by treated as a loan towards the property construction and the security of his two flats was given by him to the complainant. The question is whether this version of the accused has been rendered reasonably probable by the documentary evidence that has been produced in the case. Exh. The question is whether this version of the accused has been rendered reasonably probable by the documentary evidence that has been produced in the case. Exh. A is the initial agreement dated 15th May, 1970 which was executed by the complainant and the accused whereunder the terms of the employment of the complainant as an associate producer of the film Asha were recorded. It is recited in this agreement that the accused was producing a toilet motion picture with music by Jaidev and directed by Devendra, that the accused had agreed to utilise the services of the complainant as an associate producer of the picture in consideration of the complainant advancing a sum Rs. 50,000 for the said picture. The terms indicate that complainant accepted the engagement as an associate producer of the picture till the completion there of. By term No. 3 it was agreed that in consideration of the complainant rendering the service as an associate producer and in further consideration of the loan of Rs. 50,000 made available to the accused, the accused shall pay to the complainant a sum of Rs. 50,000 making an aggregates of Rs. 1 lac before the release of the said picture. It is common ground that certain terms of the agreement were altered and certain additions were made and actually the loan of Rs. 50,000 was not given by the complainant to the accused at the time of the execution of this agreement but the loan was actually made over on 28th May, 1970. It appears that in the mean time the accused requested the complainant to go to his native place and fetch the finance of Rs. 50,000 and to enable him to do so the accused kept his Impala car at the disposal of the complainant. After the complainant returned from his native place to Bombay with the amount of Rs. 50,000, the accused and Devendra Prasad Singh met the complainant some time in the last week of May 1970. On 28th May, 1970 a regular agreement was brought typed by the accused in which the altered terms were recorded and that agreement was produced at Exh. B. Admittedly Rs. 50,000 were paid by the complainant to the accused on 28th May, 1970 and the agreement Exh. B was actually executed by them on 29th May, 1970. On 28th May, 1970 a regular agreement was brought typed by the accused in which the altered terms were recorded and that agreement was produced at Exh. B. Admittedly Rs. 50,000 were paid by the complainant to the accused on 28th May, 1970 and the agreement Exh. B was actually executed by them on 29th May, 1970. Under this agreement, in consideration of the complainant rendering services as an associate producer and in further consideration of advancing a sum of Rs. 50,000 returnable within 3 months the accused agreed to pay the complainant a sum of Rs. 50,000 in addition to the loan of Rs. 50,000 making an aggregate of Rs. 1 lac before the release of the picture. It was agreed that the complainant will be given proper publicity as an associate producer in an advertisement paper and in all the materials. It was also agreed that the accused would pay Rs. 1,000 to the complainant as a salary per month in addition to the amount of Rs. 50,000 as mentioned above. On execution of Exh. B the earlier tentative agreement made on 15th May, 1970 was cancelled. These two documents, therefore, clearly bring out the position that a loan of Rs. 50,000 was made over by the complainant to the accused for the production of the picture called Asha, on terms and conditions mentioned in Exh. B. Then comes the most important document produced by the complainant at Exh. C, which is a bank-memo in respect of the dishonoured of the cheque for Rs. 2,000 which was issued by the accused in complainants favour. It appears that the accused had issued a cheque of Rs. 2,000 in favour of the complainant and that cheque when presented by the complainant to the Indian Bank Ltd., was dishonoured on 17th July, 1970. As regards this cheque the complainants evidence has been that as he was in need of money he has asked for money from the accused and so the accused gave the cheque for Rs. 2,000 for his pay and that after the cheque was dishonoured he had lost that cheque and he merely produced the memo of the bank relating to the dishonoured cheque during the course of his evidence. 2,000 for his pay and that after the cheque was dishonoured he had lost that cheque and he merely produced the memo of the bank relating to the dishonoured cheque during the course of his evidence. The accuseds version was that it was true that he had issued the cheque but that was towards the repayment of the part of the loan and it was further true that the cheque was dishonoured but as against the dishonoured cheque he paid Rs. 2,000 in cash to the complainant and therefore the complainant returned this dishonoured cheque to him. In cross-examination the complainant was confronted with the dishonoured cheque itself which was produced by the accused, and the answers given by him in that behalf are very eloquent. This is what he had said :--- "I was in need of money. So I asked for more money. So the accused gave a cheque for Rs. 2,000 for my pay. It is not true that I got Rs. 2,000 from accused in cash and I gave back the cheque to him. I have lost the cheque. The cheque now shown is the same Exh. 3." It is thus clear that the complainants version that he lost that cheque is obviously false and cannot be accepted. In fact the cheque was in possession of the accused, it came on record from his custody and the complainant was confronted with the original cheque when he was cross-examined and he was forced to admit that, that was the cheque which was issued by the accused and was dishonoured. Now ordinarily a dishonoured cheque would furnish a cause of action to the complainant and he would not part with such a cheque unless he receives the amount of the cheque in cash and that was exactly the case of the accused. The circumstance that the original dishonoured cheque has come from the custody of the accused lends considerable support to the accuseds version that it was on payment of Rs. 2,000 in cash to the complainant, the complainant returned that cheque to him. In my view, the denial of the complainant in his cross-examination is of no value whatsoever. The next documents on record are the two sets of document one having come into existence on 16th September and the other on 17th September, 1970. At Exh. 2,000 in cash to the complainant, the complainant returned that cheque to him. In my view, the denial of the complainant in his cross-examination is of no value whatsoever. The next documents on record are the two sets of document one having come into existence on 16th September and the other on 17th September, 1970. At Exh. E collectively are produced the copies of two documents being a letter dated 16th September, 1970 addressed by the complainant to the accused and the other being a receipt of the same date executed by the complainant in accuseds favour. The originals of these two documents are produced at Exhs. 2 and 1 respectively. By the letter dated 16th September, 1970, addressed to the accused, the complainant has recorded that agreement dated 15th May, 1970 in respect of his engagement as an associate producer and of his having advanced a sum of Rs. 50,000 has been by mutual consent rescinded and cancelled and that he (complainant ) has received back from the accused the said amount of Rs. 50,000. By that letter it has also been agreed between them that they have no claim against each other under the said agreement or in relation thereto. The other document is a receipt executed by the complainant in accuseds favour whereunder the complainant has acknowledgement the receipt of Rs. 50,000 from the accused which he had paid as advanced to the accused under the aforesaid agreement which has been cancelled. These are the set of documents which have come into existence on 16th September, 1970. This set of documents will have to be read in conjunction with the other set of document which have come into existence on the following day namely 17th September, 1970. On 17th September, 1970, the accused as the Proprietor of Kallath Builders Corporation, has executed a demand promissory not in favour of the complainant in the sum of Rs. 48,000 with interest thereon at 12% per annum. This promissory note is produced at Exh. F. On the same day the accused as a proprietor of Kallath Builder Corporation has recorded a transaction of a loan of Rs. 48,000 advanced by the complainant to him as a construction loan for his building Viva at Vile Parle, Bombay. This letter is produced at Exh. This promissory note is produced at Exh. F. On the same day the accused as a proprietor of Kallath Builder Corporation has recorded a transaction of a loan of Rs. 48,000 advanced by the complainant to him as a construction loan for his building Viva at Vile Parle, Bombay. This letter is produced at Exh. G. By this letter the accused has placed on record that he has received from the complainant a sum of Rs. 48000 as and by way of temporary loan for the construction of his aforesaid building Viva at Vile Parle, Bombay and he has further confirmed having executed in complainants favour a demand promissory note for the said amount. By this letter further the accused gave charge in complainants favour over his two flats being flat Nos. A-5 and A-6 standing in his name in the ownership, building Viva and he further agreed and covenanted that till the said amount and interest thereon are paid in full, he shall not deal with or dispose of or encumber or alienate in any manner whatsoever the said two flats. 9. The complainant has admitted these two sets of documents in his evidence and the question is what is the effect of these two sets of documents. Prima facie, reading these two sets of document together, it appears clear that the original finance loan transaction was completely squared up and the amount of loan under transaction was treated as a temporary loan towards the construction activity of the accused and a security was created in favour of the complainant for repayment of such transferred loan. The proximity of time in between these two sets of document clearly lend support to the version of the accused that some time in the middle of September 1970 the complainant became apprehensive of his film finance loan and, therefore, at his suggestion the accused actually converted the film finance loan into a loan under construction activity. The proximity of time in between these two sets of document clearly lend support to the version of the accused that some time in the middle of September 1970 the complainant became apprehensive of his film finance loan and, therefore, at his suggestion the accused actually converted the film finance loan into a loan under construction activity. It would be interesting to mention that initially in the complaint lodged by him the complainant has not referred to the first set of document which was executed by him on 16th September, 1970 and when it comes to the oral evidence the further interesting aspect is that the complainant has given out one version as to why this first set of document was executed by him whereas his witness Devendra Prasad Singh has given out another version with regard to the same. In examination-in-chief the complainant has stated about the first set of document. "Accused took my signature on an agreement of 16th September, 1970. I produce it (Exh. E). I was told that it was paper adjustment." What was the nature of paper adjustment has not been explained by him in his examination -in-chief. But the fact remains that he has admitted his signatures on both these documents namely the letter dated 16th September 1970, as well as receipt dated 16th September 1970. Even in cross-examination, he merely asserted that when he signed the receipt he had not received any moneys thereunder but the accused stated at that time that it was paper adjustment only and, therefore, he signed the same. He has gone on to state that possibly the accused had some difficulty and therefore he agreed to give that writing. So far as the witness Devendra Prasad Singh is concerned, he has stated that the accused took the writings from the complainants and the accused at that time said that it was for adjustment of income tax. In my view the evidence or the explanation given by either the complainant or his witness is hardly satisfactory and cannot be accepted. The complainant has nowhere suggested that the accused wanted these documents, for income-tax purpose, but merely stated that the accused said at that time that it was paper adjustment only. In my view the evidence or the explanation given by either the complainant or his witness is hardly satisfactory and cannot be accepted. The complainant has nowhere suggested that the accused wanted these documents, for income-tax purpose, but merely stated that the accused said at that time that it was paper adjustment only. As stated earlier, there are two aspects which really show that the two sets that was executed by the complainant on 16th September, 1970 and the other set which was executed by the accused on 17th September, 1970 related to one single arrangement. In the first place, the two sets of document were executed in close approximity of time with each other. In fact the first set was executed one day earlier than the second set of document. Apart from the approximity of time there is one more suspect which shows that two sets will have to be read together as proving the cancellation of the film loan transaction and entering into a property loan transaction and that is because of the fact that the accused had in the meantime paid Rs. 2,000 in cash to the complainant after his cheque had been dishonoured and after the complainant had returned that cheque to him. It stands to reason that because of such payment that was made by the accused to the complainant of Rs. 2,000 in cash that the loan of Rs. 50,000 got reduced to Rs. 48,000. It is this reduced liability of Rs. 48,000 which became the subject-matter made of transfer liability which was taken over under the property transaction. In my view, all these documents namely Exhs. A, B, E collectively and Exhs. F and G if read in proper perspective clearly support the defence version of the accused that sometimes in the middle of September 1970, the complainant got anxious about the repayment of loan, that he approached the accused in that behalf and possibly when the accused was unable to repay the loan immediately he squared up the loan under film finance transaction and accepted the liability of the very amount less Rs. 2,000 as one under a property loan transaction. 2,000 as one under a property loan transaction. On a perusal of the judgment of the learned Magistrate it will appear clear that all these aspects which emerge from this documentary evidence on record have not at all been taken into account by him while appreciating the evidence in the case. To my mind, the documentary evidence clearly supports the defence case and there was no question of the complainant having parted with an addition amount of Rs. 48,000 over and above the initial advance of Rs. 50,000 made in May 1970 as suggested by the complainant. In fact the documents if properly read clearly bring out the position that only a sum of Rs. 50,000 had been advanced by the complainant to the accused on 28th May 1970, that out of this loan amount Rs. 2,000 had been repaid by the accused to the complainant when his cheque was dishonoured and that as regards the balance the film loan was squared up and property loan was brought into existence whereunder the complainant accepted the security of the two flats belonging to the accused for repayment of the said balance of Rs. 48,000 with further interest. The documents particularly those executed by the complainant in favour of the accused on 16th September 1970 and those executed by the accused in complainants favour on 17th September, 1970 cannot be explained in any other manner. That these sets of documents came into existence on the respective dates and had been executed by the parties concerned has nowhere been disputed by anybody and therefore it seems to me clear that this documentary evidence clearly lends support to the defence version. 10. The next question that really arises for consideration is whether at the time when the accused obtained the loan of Rs. 50,000 from the complainant in May 1970, he made any false representations to the complainant and thereby induced the complainant to part with the amount of Rs. 50,000. In this behalf, the complainants version has been that the accused made certain representations on the basis of which he was induced to make over the amount of Rs. 50,000 to the accused. The representations on the basis of which the complainant claimed to have been induced to part the amount of Rs. 50,000 have been set out in paragraph 2 of his complaint Exh. 50,000 to the accused. The representations on the basis of which the complainant claimed to have been induced to part the amount of Rs. 50,000 have been set out in paragraph 2 of his complaint Exh. I and I shall examine whether any of those representations are shown to be false by the complainant by his evidence. The representations referred to in para 2 of his complaint are as follows :--- (a) That the accused was the producer of the film titled Asha under the banner of Vivia Arts (Madras). There is no dispute that the accused was the producer of the film titled Asha under the banner of Vivia Arts, Madras, even the complainants witness Devendra Prasad Singh who had been engaged by the accused as the director has stated that first production No. 1 of the accused under the banner of Vivia Arts, Madras was a film titled Asha. In fact the complainant has admitted in his evidence that when he joined the accused as an associate producer three to four reels had already been shot by the accused in respect of this picture and Devendra Prasad Singh has made the following admission in his examination-in-chief :--- "In June 1969 accused came to my place and told me that he intended to produce a picture. So he wanted me to read the story and take me as director.............I read the story and I found it not satisfactory. Accused took me aside and said that the writer was moneyed man and I should approve it. I called them next day and I suggested some changes............In November or December 1969 the title of the picture was given as Asha. The picture was to be produced by Vivia Arts, Madras. Accused was the proprietor. The casts were fixed. Characters were fixed. One song was written by One Naksh. It was tuned by Jaideo and recorded at Tardeo. It was sung by Asha Bhosale in January 1970. Then we to Mehboob Studio for sets". This evidence of Devendra Prasad Singh clearly shows that the accused was producing a picture, his first production No. 1 intituled Asha and that he had even fixed casts and characters and also engaged the services of playback singers and some part of the shooting had also been done. Then we to Mehboob Studio for sets". This evidence of Devendra Prasad Singh clearly shows that the accused was producing a picture, his first production No. 1 intituled Asha and that he had even fixed casts and characters and also engaged the services of playback singers and some part of the shooting had also been done. The second representation is said to have been made by the accused to the complainant has been that in the said film the accused has taken Biswajeet as hero, Saguna as heroine. Sagunas sister Rani in a character role along with numbers of other artists. There was no dispute at the trial that initially Biswajeet was the hero and Saguna was the heroine and Sagunas sister Rani was also assigned some role. The next representation was that the accused has taken Jaideo as Music Director and that he has already recorded four songs thereof wherein play-back song was given by Mohammed Rafi. The evidence of Devendra Prasad Singh clearly shows that Jaideo had been engaged as Music Director and that some songs have been recorded and one of the play-back singer was Asha Bhosale. The next representation was that the shooting of the film Asha had already started and that all arrangements were made to complete his film within three months but the further progress was held up for want of finance. As stated earlier, Devendra Prasad Singhs evidence clearly shows that some artists had been fixed and technicians had been engaged and the picture had gone on sets. According to the complainant particularly the representation was that the accused had invested a sum of Rs. 3 lacs. The accused version has been that he had paid Rs. 2 lacs 30,000 to Director Devendra Prasad Singh for the purpose of engaging artists, technicians etc. and it was Devendra Prasad Singh who had created trouble for him in the matter of completing the picture. The fact that the accused had invested such a large amount of Rs. 3 lacs was not even disputed. The argument on behalf of the complainant was that if the entire production of film was to cost Rs. 30 lacs how could the accused have thought of completing the picture within three lacs. This argument has been accepted by the learned Magistrate. 3 lacs was not even disputed. The argument on behalf of the complainant was that if the entire production of film was to cost Rs. 30 lacs how could the accused have thought of completing the picture within three lacs. This argument has been accepted by the learned Magistrate. In other words, the complaint of the complainant was that as the accused had a very small finance of Rs. 3 lacs with him he could never have intended to complete the picture which was going to cost him Rs. 30 lacs, but there was never any dispute between the parties that the accused had invested at least a sum of Rs. 3 lacs in the picture. The learned Magistrate curiously enough has accepted this argument advanced on behalf of the complainant by observing as follows :--- "The accused represented to the complainant that he had invested Rs. 3,00,000 in the picture. Now, it is surprising that when the accused says that the picture was to require Rs. 3,00,000 how he was going to complete the picture with Rs. 3,00,000. It is suggested, therefore, that the accused had no intention to produce the picture "Asha" and, therefore, he deceived the complainant into paying Rs. 98,000 for the picture and therefore he changed the picture "Kamna" which also he did not completed. The prosecution suggestion, therefore, is that the accused had no intention from the very beginning to produce the picture and pay the money to the complainant. Having regard to all the circumstances in the case, I feel that the accused had no intention from very beginning to produce picture and he made all the show of making the complainant the co-producer and also Actor and gave advertisements accordingly............However, he ought to have known the estimated cost of production of a picture before he took up the venture. Therefore when he says in one breath that the picture was to cost Rs. 30,00,000 it was impossible to think that he could produce the picture in Rs. 3,00,000. He got his firm registered at Madras and came down to Bombay for production of the picture. Therefore when he says in one breath that the picture was to cost Rs. 30,00,000 it was impossible to think that he could produce the picture in Rs. 3,00,000. He got his firm registered at Madras and came down to Bombay for production of the picture. This circumstance also shows that the accused had no intention to produce any picture but to knock out monies from various persons on the ground of a picture." The observations of the learned Magistrate really disclose lack of common knowledge about the things which usually take place in the film line. It is well known in the film line that production of a picture is undertaken by a producer not with much money of his own and he always expects finance from other financers and the producer receives several lacs of rupees as under production money from different distributers and financers. In this case, at least the producer had invested a sum of Rs. 3 lacs of his own though part of it must have borrowed from others. But it is impossible to accept the reasoning of the learned Magistrate that simply because the accused had invested only a sum of Rs. 3 lacs at about the time when he contacted the complainant for further finance and because the picture was going to cost him Rs. 30,00,000 the accused had no intention to produce a picture at all from the very beginning. As I stated earlier, film finance is peculiar proposition and producers who are not in possession of sufficient funds of their own do produce a picture with moneys which is obtained from financers and distributers even during the time the picture is under production. 11. The further representation which the accused was said to have made to the complainant was that if the complainant helped him in advancing Rs. 50,000 as loan, the accused would give the complainant credit of being his associate producer of his film Asha. Now, so far as this representation is concerned, it cannot be disputed that the material on record clearly shows that the accused had published in advertisement and other publicity materials that the complainant was his co-producer of the film Asha. If necessary reference may be made to the advertisement of the first production Asha by the accused which appeared in the film magazine "Chitrapat" which advertisement has been produced at Exh. If necessary reference may be made to the advertisement of the first production Asha by the accused which appeared in the film magazine "Chitrapat" which advertisement has been produced at Exh. D in this case. This advertisement clearly shows the complainant as a co-producer of the picture Asha. Even in the agreement produced at Exh. B, one of the terms included was that the accused would give publicity to the fact that the complainant was his co-producer and that term could be said to have been fully satisfied by the accused having regard to the advertisement that were got issued by him in cine magazine. 12. The other circumstance on which the learned Magistrate has relied is the fact that the picture which was initially titled as "Asha" was subsequently named as "Kamna" and even that was not completed by the accused till the hearing of the case and this circumstance according to the learned Magistrate showed that the accused had no intention to produce such picture from the very beginning at least at the time when he obtained Rs. 50,000 from the complainant. Having regard to the facts of which evidence has been led by the prosecution itself it is difficult to accept this sort of reasoning adopted by the learned Magistrate, I have already referred to the evidence of complainant as well as Devendra Prasad Singh to the effect that before the accused had obtained the finance from the complainant, three or four reels of the film Asha had been shot and after fixing the casts and characters and engaging the services of Jaideo as Music Director at least one song which was written by one Naksh had been recorded at Tardeo and it was sung by Asha Bhosale in January and thereafter the picture had gone on sets at Mehboob Studio. The evidence also shows that several feet of shooting was done after obtaining finance from the complainant. According to the accused, it was because Devendra Prasad Singh created trouble that he was required to change the name of the picture from Asha to Kamna, that he was required to change the Director and he was also required to change some additional artists but the production No. 1 remained the same and his first production was further shot when the name was changed to Kamna. This part of the accuseds version receives support from the evidence of some other witness examined by the complainant himself. Madhava Shinde (P.W. 3) who was to edit the film has stated that three or four reels were prepared and that they were processed in the Film Centre but thereafter no further shooting of the picture was done but in October 1970 the accused told him that he wanted to change the Director and some staff and that thereafter the name of the picture was changed to Kamna. In cross-examination he was asked as to whether even after the change in the name of the film the production remained same or not and he has stated that his impression was that picture Asha was dropped but the number of production was the same and that Ajay Biswas was the Director of Kamna and Devendra Singh was the Director of Asha . P.W. 4 Pravinchandra who has been working as a Manager at Film Centre at Tardeo, has stated that the accused who is Proprietor of Vivia Art, has given the film for processing. Processing was done of the film Asha. Ashok Kumar, Nirupa Ray, Bharat Bhushan etc. were the artists and Singh was the Director. What he has stated further may be quoted in his own words : "In March 1970 I received 1740 feet of negative of the Film Asha Again in 1971, February I got 4660 feet of the film labelled as "Kamna". In cross-examination he has stated that the first label was Asha on 1740 feet and according to him the picture was the same. He further stated that the Director and artists and the name of the picture may be changed many times by the producer but the production number was not changed in this case. This evidence of the prosecution witness clearly support the defence version that in about October 1970 the accused was required to change the Director and some casts and that even after the name was changed the production remained the same and about 4660 film had been shot sometime prior to February 1971. This evidence shows that even after the finance has been obtained by the accused from the complainant there was some old shooting of the film and some colour processing and editing was also done. 13. This evidence shows that even after the finance has been obtained by the accused from the complainant there was some old shooting of the film and some colour processing and editing was also done. 13. Turning to the defence witness Jaideo who was engaged by the accused as a Music Director, he has supported the defence version fully. He has sated that accused was introduced by Devendra Prasad Singh as a Producer of the film Asha which was later on styled as Kamna and that he was a Music Director, and accused was the Producer. According to him the hero wanted Devendra Prasad Singh to be changed and therefore the accused changed him. He has further that he recorded one song for Asha He recorded two songs from "Promise" but they were purchased for Asha for Rs. 25,000. He has also given the details about the shooting. The shooting started from 1st February, 1970 for three days. The shooting of Kamna started in March 1971. He has further stated that Asha was changed to Kamna because of financial difficulties. This evidence also supports the accuseds version. 14. Having regard to the aforesaid evidence it appears to me clear that the prosecution or rather the complainant could not be said to have established that any of the representations that were made by the accused to him were false or that on false representations he had been induced to part with a huge amount as alleged by him. If the representations are not proved to be false or baseless there will be no question by the accused having duped or cheated the complainant. 15. Having regard to the aforesaid discussion of the documentary as well as the oral evidence it is clear to me that prosecution has failed to establish that the accused had cheated the complainant on making any false representations to him. In fact, the documentary evidence as well as a considerable part of the oral evidence on record supports the accuseds version and supports his case in which event the conviction of the Appellant-accused will have to be set aside. 16. I accordingly allow the appeal and set aside the order of conviction and sentence passed by the lower Court. Fine if paid to be refunded. Bail-bond cancelled. ------