JUDGMENT P.N. Goel, J. Santosh Kumar Capoor, son of Late H.R. Capoor, resident of Lucknow, has been convicted and sentenced under Sections 420 and 406 I.P.C. to undergo R.I. for one year and two years and a fine of Rs. 10,000/. It means that on each of the two counts the appellant has been made to pay a fine of Rs. 5000/. Facts giving rise to the conviction of the appellant, briefly stated, are these: There is K.N. Govt. College at Gyanpur. In the year 1960, Dr. Jhamman Lal Sharma was the Principal of this college. The college required two refrigerators one for Botany Department and another for Zoology Department. Consequently quotations were invited. M|s. Industry and Finance, Capoors Hotel, Hazratganj submitted quotation Ex. Ka. 3. on January 29, 1960. In this quotation the particulars of refrigerators (called Capfrige) and their prices were mentioned. The quotation further indicated guarantee that the sealed units would have a guarantee of two years and the entire refrigerator would carry a guarantee of one year with free service. The quotation added that the machines were fitted with imported refrigeration controls. The quotation further indicated that M/s. Industry and Finance were the manufacturers of Capfrige refrigerators. The quotation of this firm was accepted by the college. The Firm then supplied two friges to the college and sent two bills dated March) 21, 1960 Ex. Ka. 27 and Ka. 28 for Rs. 2069.50 each. The college made payment of both the bills. The firm then issued receipts dated March 26, 1960 Exs. Ka. 1 and Ka. 2. In March 1960 Dr. Onkar Nath was Professor, i.e. Head of the Department of Zoology. He received one of the refrigerators on March 24, 1960 (vide endorsement on the bill Ex. Ka. 28). Dir. Anant Pnasad Mehjratra was Professor i.e. Head of the Department; of Botany. He took the other frige on March 23, 1960 vide endorsement on the bill Ex. Ka. 27. From the year 1961 Dr. Kripal Nath Srivastava (P.W. 6) became the Principal of the college vice Dr. Jhamman Lal Sharma. From June, 1963 Dr. Satish Chand Gupta (P.W. 3) became the Head of the Botany Department vice Anant Prasad Mehrotra. The two refrigerators worked for a very short time. In April 1960 it was detected that they were not working well and their cooling system was defective. Consequently, Dr. Jhamman Lal Sharma. From June, 1963 Dr. Satish Chand Gupta (P.W. 3) became the Head of the Botany Department vice Anant Prasad Mehrotra. The two refrigerators worked for a very short time. In April 1960 it was detected that they were not working well and their cooling system was defective. Consequently, Dr. Onkar Nath Srivastava approached the appellant and the latter promised to send his mechanic to set right the refrigerators. But the appellant did not send his mechanic for the purpose. There ensued correspondence in writing and Dr. Onkar Nath Srivastava also personally went to the appellant at Lucknow. On June 14, 1963 the appellant gave a letter Ex. Ka. 5 to Dr. Onkar Nath Srivastava that the previous letters were wrongly addressed and as such had not reached him, that the machines would be set right as desired by him, that the refrigerators be sent to him at Lucknow for repairs and that he would bear half the cost of cartage. At the end he mentioned that the machines would be repaired free of cost. Consequently, on January 23, 1964 Dr. Satish Chand Gupta (P.W. 3) sent the two refrigerators in a truck to Lucknow along with Govind Ballabh Uprety (P.W. 1) a research scholar. He reached at Lal Bagh shop of the firm along with the refrigerators on January 24, 1964. The appellant was not there. His manager told him that the appellant had gone to Delhi to see Independence Day celebrations of January 26. A mechanic of the appellant, however, gave him receipt Ex. Ka. 6. Govind Ballabh Uprety stayed on at Lucknow and met the appellant on January 30, 1964 at about 11 a.m. Under the instructions of the appellant, his manager wrote receipt of the two refrigerators vide Ex. Ka. 24 on the letter Ex. Ka. 19 of Dr. S.C. Gupta, The appellant did not affect repairs and after sufficient correspondence and personal visits by Dr. Onkar Nath Srivastava, the two refrigerators were returned to the college in October, 1965. In the meantime the appellant wrote a letter dated May 1, 1964 Ex. Ka. 16 to the principal of the college that he had sent a detailed quotation for the repairing of the two refrigerators about 2 months back and that he had not heard any thing in the matter. On March 23, 1965 the appellant addressed another letter to the Principal Ex. Ka. Ka. 16 to the principal of the college that he had sent a detailed quotation for the repairing of the two refrigerators about 2 months back and that he had not heard any thing in the matter. On March 23, 1965 the appellant addressed another letter to the Principal Ex. Ka. 17 stating tha he has closed down his shop and that due to certain difficulties the refrigerators could not be repaired. He added that he would repair the refrigerators and send the same after repairs positively by April 7, 1965 (Ex. Ka. 17). When the two refrigerators were received in the college on October 29, 1965 it was found that they were not repaired and that their machines had been taken out and that the refrigerators were merely skeletons. Sushil Kumar (P.W. 2), Proprietor Kumar Electricals, Varanasi happened to be present in the college on that day. He also checked up the two refrigerators at the desire of Dr. S.C. Gupta. He gave his opinion Ex. Ka 26 in writing. He seated that the two refrigerators were without any machines i.e. motor, compressor, wiring, switches etc., that they could hardly be called refrigerators and that they were not suitable for repairs. Dr. Onkar Nath Srivastava and Dr. S.C. Gupta submitted report Ex. Ka. 23 to the Principal on October 29, 1965. The Principal then reported the matter to the police on the same day. The Police then investigated into the matter and submitted charge sheet against the appellant. Defence of the appellant was that he was not the Proprietor of the firm, that he was not its partner that his father used to do the work of refrigerators that he used to sign in the absence of he father. He asserted that he had not sold the refrigerators to the college. He, however, admitted his signatures on the quotation Ex. Ka. 3, bills dated March 21, 1960 Exs. Ka. 27, Ka. 28, letter dated June 14, 1963 Ex. Ka. 5 and letter dated March 23, 1965 Ex. Ka. 17. He showed complete ignorance in respect of the other allegations of the prosecution. The prosecution examined Dr. Onrkar Nath, Govind Ballabh Uprety, Dr. Satisih Chand Gupta, Dr. Kripal Nath Srivastava and Sushil Kumar to prove its case. Ka. 27, Ka. 28, letter dated June 14, 1963 Ex. Ka. 5 and letter dated March 23, 1965 Ex. Ka. 17. He showed complete ignorance in respect of the other allegations of the prosecution. The prosecution examined Dr. Onrkar Nath, Govind Ballabh Uprety, Dr. Satisih Chand Gupta, Dr. Kripal Nath Srivastava and Sushil Kumar to prove its case. The appellant did not examine any witness to show that his father was the Proprietor of the firm and that he had no concern with the firm except to sign, on some papers in the absence of his father. The learned Additional Sessions Judge, Gyanpur believed the evidence of the prosecution witnesses, did not accept the plea of the appellant and found Mm guilty of the offences punishable 'under Sections 420 and 406, I.P.C. The learned counsel for the parties have been heard and the record has been perused and carefully gone through with) their assistance. Three points require determination (i) whether the appellant was the Proprietor of firm Industry and Finance and whether he had entered into the transaction of the two refrigerators with the college, (ii) Whether the appellant was guilty of the offence punishable under Section, 420, I.P.C. and (iii) Whether the appellant was guilty of the offence punishable under Section 406, I.P.C. With regard to the first point there is overwhelming evidence in the: case that it was the appellant who was working under the fictitious name, Industry and Finance. It is a matter of common knowledge that people carry on business in fictitious artificial names of some firms. There is nothing on record to indicate that firm Industry and Finance was a registered one. The prosecution has proved by the evidence of Dr. Onrkar Nath and Govind Ballabh Uprety that they used to meet the appellant at Lucknow and that the appellant gave letters Exs. Ka. 5, Ka. 16 and Ka. 17. It will be noticed that the appellant admitted his signatures on the quotation Ex. Ka. 3, bills Exs. Ka. 27, Ka. 28 and letters Exs. Ka. 5 and Ka. 17. In case his father was carrying on the business of refrigerators it is not understood as to why not a single document bears his signatures. 16 and Ka. 17. It will be noticed that the appellant admitted his signatures on the quotation Ex. Ka. 3, bills Exs. Ka. 27, Ka. 28 and letters Exs. Ka. 5 and Ka. 17. In case his father was carrying on the business of refrigerators it is not understood as to why not a single document bears his signatures. The appellant did not have the courage to suggest to any of the prosecution witnesses that in fact his father had entered into the transaction and was, dealing with the matter of the two refrigerators. He did not lead any evidence to show the same. Letter Ex. Ka. 17 clearly shows that it was written by the appellant to the Principal of the college. The appellant has not filed a single paper to show that Ms father ever dealt with the business of refrigerators. It will be noticed that in respect of the evidence of the prosecution on various points, the appellant has shown his bare ignorance. It is thus evident that there is over whelming evidence in the instant case to establish that the appellant was the Proprietor of Industry and Finance, that he wag dealing in refrigerators and that he entered into the transaction of the two refrigerators with the college and that he had received the two refrigerators for repairs which he admittedly did not repair and send them to the college in October,1965. With regard to the second point the charge against the appellant was that during the period June 14, 1963 and January 24, 1964 he had dishonestly induced Dr. K.N. Srivastava, Principal of the college to deliver two refrigerators to him with the intention not to return 'them. Narration of facts above clearly show that on January 24, 1964 the two refrigerators were handed over at the premises of the appellant's firm for repairs, that the appellant came to know about it on January 30, 1964 and that the appellant did not repair the refrigerators, that he sent them back to the college in October 1965. There is no material to indicate that he had the intention not to return the refrigerators to the college. The only thing which can be said is that he did not affect the repairs. Further according to the prosecution he had taken out the machine. There is no material to indicate that he had the intention not to return the refrigerators to the college. The only thing which can be said is that he did not affect the repairs. Further according to the prosecution he had taken out the machine. For this there is another charge under Section 406 I.P.C. It will thus appear that the appellant did not fulfil the guarantee which he had given in the quotation of January 29, 1960 Ex. Ka. 3. Section 415 defines cheating as 'Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any personand which act or omission, causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'. Illustration (g) of this section runs as follows: "(g) A intentionally deceives 2 into a belief that A means to deliver to 2 a certain quantity of indigo plant which he did not intend to deliverand thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plantand afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a Civil action for breach of contract." The present case squarely falls within the latter part of this illustration. In his letter dated March 23, 1965 Ex. Ka. 17 the appellant informed the Principal that he had closed his shop on account of heavy losses, that he could not repair the two refrigerators on account of certain difficulties and that he would repair the refrigerators by April 7, 1965. This letter indicates that the appellant, could not affect repairs on account of certain difficulties and that he indicated that the refrigerators would be repaired by April 7, 1965. There is no material to show that from the time he got the two refrigerators i.e., from January 1964 he had the dishonest intention of not repairing the refrigerators. In these circumstances it is apparent that the nonrepairs of the refrigerators and thereby the breach of the guarantee does not amount to an offence of cheating on the part of the appellant. Hence, the appellant cannot appropriately be convicted under Section 420 I.P.C. With regard to the third point there is positive evidence of Dr. In these circumstances it is apparent that the nonrepairs of the refrigerators and thereby the breach of the guarantee does not amount to an offence of cheating on the part of the appellant. Hence, the appellant cannot appropriately be convicted under Section 420 I.P.C. With regard to the third point there is positive evidence of Dr. Onkar Nath, Dr. Satishi Chand Gupta and Sushil Kumar that the machines were missing from the refrigerators on October 29, 1965. These persons have proved their reports indicated above. There is no evidence or assertion on behalf of the appellant that the two refrigerators did not contain machines etc. In January 1964 in which month) the two refrigerators were delivered at his firm for repairs. There is also nothing to show that the three witnesses were telling a lie that the two refrigerators were without machines etc. in October 29, 1965. In these circumstances offence under Section 406, I.P.C. is clearly made out against the appellant. The appellant's counsel urged that the occurrence took place about 15 years back and it would not now be just to' send the appellant to jail to serve out the sentence of imprisonment and that fine only be imposed upon the appellant. Taking these facts together and the' condition of the refrigerators in which they were returned by the appellant to the college, it would not be unjust if the appellant is made to pay a fine of Rs. 6,000/. Appeal is partly dismissed and partly allowed. Conviction and sentence of the appellant under Section 420, I.P.C. recorded by Additional Sessions Judge Gyanpur on March 4, 1976 are set aside. Conviction of the appellant under Section 408 I.P.C. is affirmed. But the sentence to two years' R.I. and a fine of 5,000/ is substituted by a sentence of fine of Rs. 6,000/. The appellant is allowed three months time from this day to deposit the amount of fine in the court below. In default of payment of fine the appellant will undergo R.I. for nine months. If the fine is deposited by the appellant a sum of Rs. 5,000/ will be paid to K.N. Government Degree College Gyanpur as compensation. After the fine is deposited, the bail bonds furnished by the appellant will stand cancelled. The record shall be sent down to the court below as early as possible.