JUDGMENT 1. - Smt. Mankori petitioner was convicted by the learned Munsiff Magistrate, Nawalgarh vide his judgment dated 25-6-71 for an offence tinder section 420 IPC and was sentenced to rigorous imprisonment for a period of three months and a fine of Rs. 2000/- and is default of payment of fine to further undergo six months simple imprisonment. In case the fine was realised an amount of Rs. 1500/- was to be paid to the complainant Balu Ram as compensation. An appeal was preferred by the petitioner before the learned Sessions Judge, Jhunjhunu, which was dismissed. This revision has, therefore, been filed against the judgment of the learned Sessions Judge dated 12-9-1972. 2. In brief, the facts of the prosecution case are that Baluram PW 6 was unmarried and was interested in his marriage being ceremonised. The petitioner's brother Surja Ram had a daughter of marriageable age. It is said that Smt. Mankori promised to get the marriage of Baluram performed with the daughter of her brother Surja Ram on Balu Ram's paying Rs. 2800/- to Smt. Mankori. This agreement took place at the house of Ladu, the maternal uncle of Baluram and the amount of Rs. 1800/- was paid to Smt. Mankori and Smt. Mankori promissed that the marriage will be ceremonised on Ramnavmi. Subsequently, Baluram approached Smt. Mankori and she demanded the balance of Rs. 1000/- which was also paid to her. The marriage of the daughter of Smt. Mankori's brother was performed later on with some other person. When Baluram came to know about it, he approached Smt. Mankori and she promised to arrange some other girl for Baluram. Baluram waited but ultimately no girl was arranged for his marriage. A Panchayat was called before which Smt, Mankori refused to arrange for any girl for the marriage with Baluram or to refund the amount. After about 15 to 16 months of the alleged agreement, the report Ex. P/1 was submitted to the Superintendent of Police, Jhunjhunu on 15-6-1966 who in turn forwarded it to the S.H.O. Nawalgarh, for necessary action. The S.H.O. Nawalgarh, thereupon registered a case on 17-6-1966 under Section 420 IPC and after necessary investigation challaned the petitioner to the court of Sub-divisional Magistrate, Nawalgarh. 3. P/1 was submitted to the Superintendent of Police, Jhunjhunu on 15-6-1966 who in turn forwarded it to the S.H.O. Nawalgarh, for necessary action. The S.H.O. Nawalgarh, thereupon registered a case on 17-6-1966 under Section 420 IPC and after necessary investigation challaned the petitioner to the court of Sub-divisional Magistrate, Nawalgarh. 3. Learned Sub-divisional Magistrate, Nawalgarh after trial convicted the petitioner for an offence under section 420 IPC and sentenced her to imprisonment till rising of the court and to pay a fine of Rs. 1500/-and in default of payment of fine to undergo , 6 months imprisonment. On appeal being filed by the petitioner before the learned Sessions Judge, her conviction and sentenced were set aside on the ground that there had been some omission to put certain question in her examination record under section 342 Cr. P.C. The case was, therefore remanded for re-trial to the court of Munsiff-Magistrate, Nawalgarh. The learned Magistrate after trial convicted and sentenced the petitioner as mentioned above. The appeal before the Sessions Judge, Jhunjhunu was also dismissed. 4. The contention of the learned counsel for the petitioner before this court is mainly to the effect that even taking the facts as alleged by the prosecution at its face falue, no offence under section 420 IPC is made out. There is no evidence on. behalf of the prosecution that the petitioner at the time of agreeing into the promise for arranging the marriage of the complainant had any intention to deceive or cheat the complainant. She did not make any fraudulent representation. At the most it was a case of breach of an agreement of promise and no criminal liability can be fastened and it may be a matter of civil liability. It is the prosecution case that before the alleged amount was paid to Smt. Mankori, it was very well verified by the maternal uncle of the complainant and one Ganpat that Suriaram had a daughter of marriageable age. It is also in the prosecution that Smt. Mankori was the whole-sale authority of Suriaram's family and, therefore, they believed that she will be able to perform her promise. This is in the statement of Birbal PW 1. Thus at the time of making the promise no deception was practised by her. It is also in the prosecution that Smt. Mankori was the whole-sale authority of Suriaram's family and, therefore, they believed that she will be able to perform her promise. This is in the statement of Birbal PW 1. Thus at the time of making the promise no deception was practised by her. It is another matter that subsequently the circumstances might have changed and Surjaram did not agree to marry his daughter with the complainant, but this does not lead to the inference that there was intention of deceive or to make false representation in order to cheat the complainant on the part of the petitioner. The learned Magistrate, though clearly understood the law, but has failed to apply it to the circumstances of the present case and he has made out a case not from the prosecution case but on the basis of statements of defence witnesses that the girl was married 8-10 years ago and, therefore, very promise to marry her with Baluram was a false promise made to the complainant to deceive him. It may be that the defence witnesses in over-zealousness have gone to depose to that extent but from the statements of prosecution witnesses it is quite clear that the marriage of the daughter of Surjaram was performed near about Ramnavmi i. e. much after the alleged agreement made by Smt. Mankori. Learned counsel for the petitioner has relied upon the decisions in Pukh Raj v. State, 1962 I.L.R. Rajasthan 536. , The State of Madhya Pradesh v. Mir Basit All Khan and others, AIR 1971 Supreme Court 1620 , Jamadar Rai and others v. Emperor, AIR 1930 Patna 504 and the State of Kerala v. A Pareed Pillai and Another, AIR 1973 SC 326 in support of his contention. 5. The learned Public Prosecutor has argued that according to the defence witnesses, the marriage of the girl was performed many years before the alleged promise and, therefore, there was no occasion for the petitioner to have intended the marriage except the intention to cheat the complainant. 5. The learned Public Prosecutor has argued that according to the defence witnesses, the marriage of the girl was performed many years before the alleged promise and, therefore, there was no occasion for the petitioner to have intended the marriage except the intention to cheat the complainant. It may be said that it was no case of the prosecution that the girl of Surja Ram was married before the petitioner promissed to marry her with the complainant rather the case of the prosecution is that Ladu, the maternal uncle and one other were fully satisfied that Surja Ram had a daughter of marriageable age and that her marriage took place subsequent to the promise i. e. near about Ramnavmi. DW 2 Banwari. in his zeal to support the petitioner to show that there was no occasion to accept Rs. 2800/- has gone to the extent of saying that marriage of-the girl took place 8 or 10 years ago. As pointed out above this is no case of the prosecution and to draw an inference of the guilt from the statement of this witness against the petitioner is not justified. 6. The other contention of the learned Public Prosecutor is that the subsequent conduct of the petitioner had been to avoid the matter on one pretext or the other, and subsequently her conduct of even refusing of her having taken Rs. 2800/- shows that in fact she never intended to perform the marriage and her intention was to cheat the complainant. It may be said that 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 also be judged by his subsequent act but subsequent conduct alone is not the sole criterion. Mere breach of contract cannot give rise to criminal prosecution. In the facts and circumstances of the present case the subsequent conduct of the petitioner that she avoided her promise on one pretext or the I other and went on giving consolation to the complainant that she will arrange a girl for his marriage cannot solely form the basis of an inference so as to her guilt. In the facts and circumstances of the present case the subsequent conduct of the petitioner that she avoided her promise on one pretext or the I other and went on giving consolation to the complainant that she will arrange a girl for his marriage cannot solely form the basis of an inference so as to her guilt. She had no daughter of her own of marriageable age and it is possible that she could not persuade her brother to marry his daughter to the complainant and subsequently also failed to arrange for any girl suitable to the complainant for his marriage. As has been held in the State of Kerala v. Pareed Pillai and another , AIR 1973 Supreme Court 326 that to hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not. subsequently fulfil the promise. The case of Jamadar Rai and others v. Emperor , AIR 1930 Patna 504 is more or less similar to the facts and circumstances to the present case. In that case A arranged the marriage of his brother with the daughter of the accused B. for a sum of Rs. 1400/- out of which Rs. 500/- were paid in advance as earnest money and one of the ceremonies connected with the marriage was performed. Later on A went of B's village to have the marriage performed but found the girl being married to another person and was told that his brother was to be married to a daughter of D and the earnest money was not repaid. B was tried under section 420 I.P.C. It was held in that case that the criminal offence under Section 420 I.P.C. has not been disclosed. There was nothing more, in the circumstances of the case, then a breach of contract that Is refusal to marry the girl to A's brother giving cause of an action in a civil court. 7. In the circumstances of the present case I also find that it cannot be inferred that there was any dishonest intention on the part of the petitioner at the time of making the promise or that she made the false representation. 7. In the circumstances of the present case I also find that it cannot be inferred that there was any dishonest intention on the part of the petitioner at the time of making the promise or that she made the false representation. Such a dishonest intention cannot be inferred from the mere fact that she could not subsequently fulfil her promise. 8. The prosecution has failed to establish that any case for an offence under section 420 I.P.C. is made out against the petitioner. 9. In the result, the revision petition is allowed and the conviction and sentence of the petitioner passed by the learned Sessions Judge Jhunjhunu is set aside and she is acquitted of the same. *******