JUDGMENT - B.M. SAPRE, J.:---Criminal Appeal No. 1119 of 1973 has been filed by the original complainant after obtaining leave of the Court against the order of acquittal recorded by the Additional Sessions Judge, Poona, in Criminal Appeal No. 175 of 1972 on 9th February, 1973 in favour of the original accused Dr. Dattatraya Mahadeo Akut (respondent No. 1 in the appeal) on a charge under section 420 of the Indian Penal Code. Criminal Appeal No. 175 of 1972 had been filed by the accused against the order of conviction and sentence for the offence under section 420 of the Indian Penal Code recorded by the judicial Magistrate, First Class, Court No. 9, Poona, on 11th July, 1972. The trial Magistrate had sentenced the accused to suffer simple imprisonment till the rising of the Court and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for 30 days. Against the order of sentence, the original complainant filed Criminal Revision Application No. 691 of 1972 for enhancement of the sentence. In the meantime, the accused preferred Criminal Appeal No. 175 of 1972 in the Sessions Court at Poona against his conviction and sentence. That appeal, as already noted, was decided in favour of the accused and he was acquitted. Against that acquittal, Criminal Appeal No. 1119 of 1973 has been filed. During the pendency of the criminal appeal and the criminal revision application, the original complainant has died. Criminal Application No. 279 of 1975 has, therefore, been filed by the elder brother of the complainant for being brought on record in place of the deceased complainant in the criminal appeal. Similarly, Criminal Application No. 284 of 1975 has been filed by the elder brother of the original complainant for being brought on record in place of the deceased complainant in the criminal revision application. This judgment will dispose of all the above four matters. The prosecution was instituted on a private complaint filed by Yeshwant Sadashiv Datye, the original complainant. His case was as follows :- The complainant was in need of residential accommodation. The accused owned house No. 204, Rasta Peth, Poona. That house was being reconstructed. The work of construction of the 2nd floor was going on. The complainant, therefore, approached the accused in order to see whether he could get accommodation in the portion which the accused was constructing. The accused owned house No. 204, Rasta Peth, Poona. That house was being reconstructed. The work of construction of the 2nd floor was going on. The complainant, therefore, approached the accused in order to see whether he could get accommodation in the portion which the accused was constructing. The accused told the complainant that the work of construction of the 2nd floor was going on. That work would be over within three months. The accused asked the complainant to pay him Rs. 9,000/- and told him that he would give one room 16 x 12 on the western side together with a gallery and two rooms, each measuring 12 x 10, and a gallery on the eastern side on the second floor. The complainant relied on the representation made by the accused, because he was a medical practitioner and an old man and was constructing a building. An agreement (Ex. 21) was executed by the accused in favour of the complainant on 19th December, 1968 incorporating the terms agreed upon between the complainant and the accused. The complainant parted with Rs. 9,000/- and gave the money to the accused. The accused, however, had no intention from the very beginning to give any portion in his building to the complainant, but he dishonestly induced the complainant to part with the money and thus cheated him. In fact, on 10th August, 1968, the accused had already entered into an agreement (Ex. 68) with one Tulsidas Paggawar under which, on receipt of Rs. 4,000/- from Tulsidas Paggawar, the accused had agreed to give him the larger of the three rooms and the gallery mentioned in the agreement (Ex. 21) of the complainant. Subsequently also on 3rd May, 1969, the accused entered into another agreement (Ex. 56) with one Palnitkar under which, on receiving Rs. 6,000/-, the accused agreed to give him the smaller two rooms which were mentioned in the agreement (Ex. 21) and which the accused had promised to give to the complainant. Ultimately, the accused did not give the rooms either to Tulshidas Paggawar or Palnitkar. He gave the room which he had agreed to give to Tulshidas Paggawar to one Page and thereafter to one Chandratre. Similarly, he gave the two rooms which he had agreed to give to Palnitkar to one Shah. Ultimately, the accused did not give the rooms either to Tulshidas Paggawar or Palnitkar. He gave the room which he had agreed to give to Tulshidas Paggawar to one Page and thereafter to one Chandratre. Similarly, he gave the two rooms which he had agreed to give to Palnitkar to one Shah. All this conduct of the accused went to show that he had never any intention to give any premises to the complainant and yet he dishonestly induced the complainant to part with the amount of Rs. 9,000/-. The defence of the accused was that what he had agreed to give to the complainant was a block of three rooms on the third floor which he intended to construct and he had taken the amount of Rs. 9,000/- from the complainant for the purposes of construction. The agreement with Tulshidas Paggawar was in respect of a room on the 2nd floor and not on the third floor. Similarly, the agreement with Palnitkar was in respect of two rooms on the second floor and not on the third floor. Page, Chandratre and Shah were all given premises on the second floor and not on the third floor. At the time when the accused made the agreement with the complainant, he had the intention to build the third floor and it was only if he were able to construct the third floor that he was to give the three rooms to the complainant. The accused had not been able to build the third floor at all. The construction was for a while stopped because of an objection raised by a neighbour and also due to non-availability of cement. There was no intention on the part of the accused to cheat the complainant when he made the agreement. He had, therefore, not committed any offence. The learned trial Magistrate held that what the accused had agreed with the complainant was to give a block of three rooms on the second floor. He negatived the defence that the agreement was to give a block of three rooms on the third floor if and when the accused would construct it. The learned trial Magistrate then held that the accused had already made an agreement with Tulshidas Paggawar to give the larger of the three rooms and had received Rs. 4,000/- from him. He negatived the defence that the agreement was to give a block of three rooms on the third floor if and when the accused would construct it. The learned trial Magistrate then held that the accused had already made an agreement with Tulshidas Paggawar to give the larger of the three rooms and had received Rs. 4,000/- from him. That went to show that the accused had no intention of giving the larger room to the complainant which he could no longer give to the complainant as it had already been offered to Tulshidas Paggawar. The learned Magistrate also held that in view of the subsequent agreement with Palnitkar to give the smaller two rooms to him, the intention of the accused could be inferred that on the date on which he made the agreement with the complainant, he did not intend to give these two rooms also to the complainant. The learned Magistrate, therefore, concluded that the accused had dishonestly induced the complainant to part with Rs. 9,000/- by making a false representation to him that he would be giving him a block of three rooms on the second floor and had thus cheated him. The learned Magistrate accordingly convicted and sentenced the accused as aforesaid. On appeal, the learned Additional Sessions Judge upheld the finding of the trial Magistrate that what the accused had agreed with the complainant was to give a block of three rooms on the second floor and the agreement was not in respect of any portion on the third floor if and when it was constructed. But the learned Additional Sessions judge held that there was no satisfactory evidence to show that the room, which the accused had agreed to give to Tulshidas Paggawar on 10th August, 1968, was one of the rooms which he subsequently agreed to give to the complainant under the agreement (Ex. 21) dated 19th December, 1968. He also held that there was no satisfactory evidence to show that the smaller two rooms, which the accused agreed to give to Palnitkar under an agreement dated 3rd May, 1969, were the very same rooms which the accused had agreed to give the premises to the complainant which under the agreement (Ex. 21). 21) dated 19th December, 1968. He also held that there was no satisfactory evidence to show that the smaller two rooms, which the accused agreed to give to Palnitkar under an agreement dated 3rd May, 1969, were the very same rooms which the accused had agreed to give the premises to the complainant which under the agreement (Ex. 21). The learned Additional Sessions Judge, therefore, held that the accused had agreed to give the premisses to the complainant were to be constructed in future and it could not be said that on the date of the agreement he had no intention to give those premises to the complainant. According to the learned Additional Sessions Judge, there was no false representation on the part of the accused. In the result, he acquitted the accused. As already stated, the original complainant died during the pendency of the criminal appeal and the criminal revision application and the two applications, one each in the criminal appeal and the criminal revision application, have been given by his elder brother for his name being substituted in place of the original complainant. Mr. Joshi, appearing on behalf of the accused, has objected to the name of the heir of the deceased complainant being brought on record on the ground that the Criminal Procedure Code contains no provisions in that behalf. It is first necessary to see what is the effect of the death of the complainant on the criminal appeal. The appeal has obviously been filed under the provisions of section 417(3) of the Code of Criminal Procedure, 1898, hereinafter referred to as "the old Code". Section 417(3) provides that if an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants Special Leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. The case was instituted upon a private complaint. An order of acquittal was passed in the case. An application was made to the High Court by the complainant for special leave to appeal from the order of acquittal. That leave was granted. The case was instituted upon a private complaint. An order of acquittal was passed in the case. An application was made to the High Court by the complainant for special leave to appeal from the order of acquittal. That leave was granted. Now, section 431 of the old Code provides :--- "Every appeal under section 411-A, sub-section (2) or section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant." Section 431 thus provides that an appeal under section 417 shall finally abate on the death of the accused. The other parts of the section are not applicable. Thus, the only contingency in which an appeal under section 417 can abate is the death of the accused. The section does not say that the appeal shall abate on the death of the complainant. That means that the appeal has to go on. If it has to go on, then certainly somebody has to prosecute it. It is true that there is no provision in the old Code to bring on record the heir of the deceased complainant. But there is also no prohibition against adopting such a course. Mr. Joshi tried to suggest that the State should prosecute the appeal for the deceased complainant. But for this also, there is no provision in the old Code. Mr. Joshi thus wants a procedure to be adopted for which also there is no provision in the old Code. There is no reason why, if it is merely a question of adopting a course for which there is no specific provision in the old Code, the course suggested by Mr. Joshi should be adopted and not the one to allow an heir of the deceased complainant to prosecute it. And in order to enable the heir of the deceased complainant to prosecute the appeal, it is but proper that his name should be substituted in place of the deceased complainant. For all these reasons, I allow Criminal Application No. 279 of 1975 and Criminal Application No. 284 of 1975 and direct that the name of the heir Balwant Sadashiv Datye be brought on record in place of the deceased complainant Yeshwant Sadashiv Datye both in the criminal appeal and criminal revision application. For all these reasons, I allow Criminal Application No. 279 of 1975 and Criminal Application No. 284 of 1975 and direct that the name of the heir Balwant Sadashiv Datye be brought on record in place of the deceased complainant Yeshwant Sadashiv Datye both in the criminal appeal and criminal revision application. The rule is thus granted and made absolute in both. Turning to the merits, the main allegation of the complainant is that on 19th December, 1968, when the accused entered into the agreement (Ex. 21) with the complainant, he had no intention to give any premises to the complainant in his building, but he made a false representation to the complainant that he would give him a block of three rooms on the second floor and acting on that representation, the complainant had parted with Rs. 9,000/- in favour of the accused. According to the complainant, his agreement (Ex. 21) describes the premises which the accused agreed to give to the complainant as follows :--- ^^frljs etY;kojhy ifpes dMhy 16 ck; 12 QqVkph vsd [kksyh o xSyjh o iwosZ dMhy 12 ck; 10 QqVkP;k nksu [kksY;k o xSyjh** But the accused had already decided to give the larger of the three rooms to Tulshidas Paggawar on 10th August, 1968 when the accused made the agreement (Ex. 68) with Tulshidas Paggawar. The premises described in Ex. 68, which the accused agreed to give to Tulshidas Paggawar, are :--- ^^frljs etY;kojhy 16 ck; 10 QqVkph tkxk o 15 ck; 2 QqVkph X;kyjh** The accused then made another agreement (Ex. 56) on 3rd May, 1969 with Palnitkar. The premises agreed to be given to Palnitkar under this agreement are :--- ^^frljs etY;kojhy iwoZ cktwph nf{k.k mRrj nksu [kksY;k iq<s xSyjh jLR;kP;k cktw dMhy [kksyh 10 QqV ck; 12 QqV o R;kps ik<h ekxsy [kksyh 10 QqV ck; 12 QqV vankts** Ex. 56 also states that on the western side of the two rooms, which the accused agreed to give to Palnitkar, was the room 16 x 10, which was the larger room mentioned in the complainants agreement (Ex. 21) and which the accused had already agreed to give to Tulsihdas Paggawar under Ex. 68. According to the complainant, thus, the conduct of the accused, as disclosed by his agreements (Ex. 68 and Ex. 21) and which the accused had already agreed to give to Tulsihdas Paggawar under Ex. 68. According to the complainant, thus, the conduct of the accused, as disclosed by his agreements (Ex. 68 and Ex. 56) will show that he never intended to give a block of three rooms on the 2nd floor to the complainant and yet, by making a false representation, to the complainant that he would be giving the said block of three rooms to the complainant, he had induced him to part with the amount of Rs. 9,000/-. As against this, the case of the accused seems to be that although in Ex. 21 it is "Tisra Majla", that has been referred to, which means the second floor. Yet what was actually agreed to be given to the complainant was a block of three rooms on the "Chautha Majla" or third floor which the accused intended to construct. By making the agreements (Exs. 68 and 56) with Tulshidas Paggawar and palnitkar respectively, therefore, the accused had no intention to cheat the complainant when he made the agreement (Ex. 21). It is clear that if the defence of the accused is accepted that what was agreed between him and the complainant was that the complainant would be given a block of three rooms on the third floor and not on the second floor, his conduct in executing the agreements (Ex. 68 and Ex. 56) in favour of Tulshidas Paggawar and Palnitkar respectively in respect of portions on the second floor, will not show any dishonest intention on his part in making the agreement (Ex. 21) with the complainant in respect of a block of three rooms on the third floor. Mere inability on the part of the accused to fulfil his obligations under the agreement (Ex. 21), though it may give rise to a civil liability, will not be sufficient to fix criminal liability on the accused. Dishonest intention on the part of the accused is sought to be inferred only from his conduct that the very premises which the accused had agreed to give to the complainant he had already or subsequently given to others. But if it is shown that the premises which form the subject-matter of the agreement (Ex. 21) with the complainant are different from the premises in respect of which the agreements (Ex. 68 and Ex. But if it is shown that the premises which form the subject-matter of the agreement (Ex. 21) with the complainant are different from the premises in respect of which the agreements (Ex. 68 and Ex. 56) were made, no inference of dishonest intention on the part of the accused can be established. It is true that the learned Additional Sessions Judge has concluded that it was the block of three rooms on the second floor which was agreed to be given to the complainant, but that does not appear to be a correct finding. It is true that in Ex. 21 the words "Tisra Majla" have been used, which also occur in Ex. 68 and Ex. 56, but from that alone, without taking into account the other evidence on record, it could not be concluded that the block of three rooms which the accused had agreed to give to the complainant was on the second floor. There is no dispute that the portion which was agreed to be given to Tulshidas Paggawar and the portion which was agreed to be given to Palnitkar were on the second floor. It is also not in dispute that the portion which was agreed to be given to Tulshidas Paggawar was ultimately given to one Page and after he vacated it, it was given to Chandratre. Similarly, there is no dispute that the portion which was agreed to be given to Palnitkar was given to one Shah. Chandratre (P.W. 4) has been examined as a witness on behalf of the complainant. He has stated that he took possession of the premises on 1st July, 1969. He has also stated that Shah came to stay in the adjoining premises three to four months thereafter. That means that both Chandratre and Shah were occupying the premises on the 2nd floor at the end of the year 1969. It is in the evidence of the complainant Yeshwant Sadashiv Datye (P.W. 1) that the building of the accused is on the backside of the building in which he (complainant) was staying with his brother. It is also in evidence that the complainant used to visit the house of the accused which was under construction from time to time. If, therefore, the agreement (Ex. It is also in evidence that the complainant used to visit the house of the accused which was under construction from time to time. If, therefore, the agreement (Ex. 21) were in respect of any portion on the second floor, the complainant would have raised an objection to the portion being given by the accused to others. At Ex. 22 is the notice dated 5th February, 1970, which the complainant had served on the accused. In this notice, no grievance was made by the complainant that the premises on the 2nd floor, which the accused had promised to give to the complainant, had been given by him to others and these persons were in actual possession of the premises which the accused had agreed to give to the complainant. On the other hand, what the complainant had stated in the notice (Ex. 22) was that he had been visiting the house of the accused which was under construction and although the agreed period within which the accused was to complete the construction was over, that work had not been yet completed. It is in the evidence of Chandratre that when he came to occupy a portion on the second floor, some construction on the third floor was going on and he noticed some columns, a stair-case and a gallery above the floor, a portion of which he had occupied. If this evidence of Chandratre is read with the complainants notice (Ex. 22), there appears to be considerable force in the defence of the accused that what was agreed to be given to the complainant was a block of three rooms on the third floor and no block of three rooms on the second floor was agreed to be given to the complainant. It is in evidence that the accused has been trying to get sanction for the construction of the third floor. The agreement which the accused had thus made with the complainant was in respect of the premises which have not been constructed. It cannot be said that when the accused made the agreement (Ex. 21) with the complainant, he had no intention to give the premises to the complainant and he had made a false representation to the complainant in that behalf. The complainant has, as already held, failed to prove beyond a reasonable doubt that his agreement (Ex. It cannot be said that when the accused made the agreement (Ex. 21) with the complainant, he had no intention to give the premises to the complainant and he had made a false representation to the complainant in that behalf. The complainant has, as already held, failed to prove beyond a reasonable doubt that his agreement (Ex. 21) was with respect to the same premises which were the subject-matter of the other two agreements (Ex. 68 and Ex. 56). Dishonest intention to the accused is sought to be attributed on the basis that when he made the agreement (Ex. 21) with the complainant he had already made the agreement (Ex. 68) with Paggawar in respect of a portion of the same premises and subsequently also he had made the agreement (Ex. 56) with Palnitkar in respect of the remaining portion of the same premises. But if that basis disappears, the inference of dishonest intention also disappears. Whatever civil liability may arise in favour of the complainant, in case it can be shown that the accused had committed a breach of the agreement, on the facts of the case it cannot be said that a criminal charge of cheating can be brought home to the accused beyond a reasonable doubt. In the result, the acquittal of the accused by the learned Additional Sessions Judges on the charge of cheating must be held to be correct and Criminal Appeal No. 1119 of 1973 preferred by the complainant against the order of acquittal must fail. As a necessary corollary, the criminal revision application preferred by the complainant for enhancement of the sentence also fails. Criminal Appeal No. 1119 of 1973 is dismissed and the order of acquittal passed in favour of the accused by the learned Additional Sessions Judge is confirmed. The rule is discharged in Criminal Revision Application No. 691 of 1972. -----