JUDGMENT : S.C. Mohapatra, J. - This is a petition in revision against the appellate judgment of the Additional Sessions Judge. Bhubaneswar maintaining the conviction of the Petitioner u/s 420 of the Indian Penal Code and the sentence of fine of Rs. 2,000/- imposed on him by the Subdivisional Judicial Magistrate, Bhubaneswar. 2. The Petitioner argued the case in person. In spite of valid service of notice, the complainant-opposite party did not appear in this Court. 3. Petitioner was a foreign liquor 'on' licensee, Cuttack and the Proprietor of Mungo. Bar and Restaurant at Mangalabag in Cuttack town. He was purchasing beer and foreign liquor from Bhubaneswar branch of M/s. Spencer and Co. Ltd., a foreign liquor distributor since 1968. On 16-7-1969, Petitioner issued cheque No. 207385 for Rs. 10,041/- in favour of the distributor drawn on the United Commercial Bank. Cuttack towards the price of 1200 bottles of beer and 84 dozen bottles of other foreign liquor from the Branch Manager received by him that day, This cheque could not be encased since the Petitioner instructed his banker not to pay the amount on the cheque. 4. The case of the opposite party is that the Petitioner deceived the company on 16-7-1969 and fraudulently induced them to deliver 1200 bottles of beer and 84 dozens of liquor bottles representing falsely that his cheque No. 207385 dated 16-7-1969 would be cashed on presentation but at the same time intending not to pay for the liquor supplied. It was alleged that the company would not have delivered the liquor and beer bottles to the Petitioner had they known about the Petitioner's deceitful intention and such deceitful trick of the Petitioner has caused damage and harm to the company as a huge amount is now blocked unrealised. 5. Cognizance having been taken, the Petitioner was summoned to face the trial. Charge was framed' against him to the following effect: That you on or about the 16th day of July, 69 at Bhubaneswar cheated Shri R.S. Das, Branch Manager, Spencer & Co. Ltd., B.B.S. by dishonestly inducing him to deliver 1200 bottles of beer and 84 doz. of whisky bottles valued at Rs. 10,041/- to you and which was the property of said R.S. Das and thereby committed an offence punishable u/s 420 of the Indian Penal Code. 6. Ltd., B.B.S. by dishonestly inducing him to deliver 1200 bottles of beer and 84 doz. of whisky bottles valued at Rs. 10,041/- to you and which was the property of said R.S. Das and thereby committed an offence punishable u/s 420 of the Indian Penal Code. 6. The explanation of the Petitioner is that he had no intention to deceive at the time of receiving the articles on 16-7-1969 and issuing the cheque. but having discovered damaged and ullaged bottles he instructed the bank nor to pay the amount on cheque and negotiated with the opposite party for replacement thereof. 7. The trial court and the appellate court found that the Petitioner deceived the opposite party and induced delivery of the articles and has thus committed the offence u/s 420, I.P.C. giving emphasis on the absence of sufficient fund in the account of the Petitioner when the cheque Was issued which was known to the Petitioner, the dishonour or the subsequent cheque and absence of intimation to the complainant immediately about the damaged and ullaged bottles. 8. It is clear from the language of Section 415, I.P.C. that cheating can be. committed in two ways. Deceiving a person is common in both the ways of cheating. A person deceived may be fraudulently and dishonestly induced to deliver any property by any person. See Kanumukkala Krishnamurty v. State of Andhra Pradesh 1965 S.C.D. 613. It is fraudulent deception or inducement which is the very basis of the offence. See Gobardhan Panda v. State (1970) C.W.R. 59. There must be a deception which should precede the fraudulent or dishonest inducement of the person deceived to part with the property. See Duryodhan Khuntia Vs. Ali Ahmed. The property delivered by the victim of deception need not be his own property. It is sufficient if the property is in his custody or control. See L. Laptsugar Rao v. The State. 26 (1960) C.L.T. 86. 9. To hold a person guilty of the offence of cheating it has to be established that his intention was dishonest at the time of the alleged inducement. See Mahadeo Prasad Vs. State of West Bengal, ; State of Kerala Vs. A. Pareed Pillai and Another Upendranath Das and Anr. v. State 39(1973) C.L.T. 1073, and G. Laxminarayan Naidu Vs. Chitiboina Yerraiah and Another. See Mahadeo Prasad Vs. State of West Bengal, ; State of Kerala Vs. A. Pareed Pillai and Another Upendranath Das and Anr. v. State 39(1973) C.L.T. 1073, and G. Laxminarayan Naidu Vs. Chitiboina Yerraiah and Another. Once the property is obtained by trick or by other means by false representation, the intention is clear to bring home the guilt. See State Vs. Radhakanta Patnaik. Subsequent acts or conduct of the accused may furnish materials for judging the intention of the accused at the time of the alleged inducement. However, this would not be the sale criterion for judging the dishonest intention. See Upendranath Das's case 39 (1973) C.L.T. 1073 (supra). 10. Deceit by issue of cheque was the' subject-matter of consideration in Duryodhan Khuntia Vs. Ali Ahmed. In that decision it was held: The act of drawing a cheque implies representation that the drawer has an account with the Bank in question; that he has authority to draw on it and that in the ordinary course of event the cheque, on future presentation, will be honoured. The drawing of the cheque, does not, however, imply any representation that the drawer already has money in the Bank to the amount shown in the cheque, for he may, either have authority to overdraw, or have an honest intention of paying in the necessary money before the cheque can be presented. This has been approved by the Division Bench in the decision reported in G. Anji v. Sunanda Kar alias Gora Babu 46 (1978) C.L.T. 560 and has been reiterated in G. Laxminarayan Naidu's cases (supra). 11. The position of law is thus clear that the dishonest intention of an accused at the time of receipt of the articles is the main ingredient to be satisfied which would depend upon the facts and circumstances of each case. 12. In view of the clear enunciation of this Court that absence of funds in the account even to the knowledge of the Petitioner would not be sufficient for inference of dishonest intention on his part while issuing the cheque on 16-7-1969 at the time of getting delivery of the articles from P.W. 1. There is a clear evidence that P.W. 1 obtained a second cheque for the amount on 16-8-1969. Thus, P.W. 1 also did not believe till that day that he was induced to part with the goods deceitfully. There is a clear evidence that P.W. 1 obtained a second cheque for the amount on 16-8-1969. Thus, P.W. 1 also did not believe till that day that he was induced to part with the goods deceitfully. When the second cheque came back unpaid, then only P.W. 1 filed the complaint claiming to have been deceived. The Petitioner is not prosecuted for non-collection of the second cheque. The petition case is that at the time of the delivery of the articles the Petitioner practised deceit to get the articles. The plea of the Petitioner is that he stopped payment as some bottles of liquor were either damaged or ullaged. In reply to the (sic) on behalf of the complainant, the Petitioner made out the same case. A photo copy of the letter (Ext. (sic)) though disputed to have been issued by P.W. 1 also indicates that the company's Branch Manager gave a reply that credit can be given for damaged bottles and the ullaged bottles can be replaced. The prosecution case is that the cheque dated 16-7-1969 was deposited on 18-7-1969 for collection, but the Petitioner's bank at Cuttack reported to the collecting bank that the payment has been stopped by the drawer. P.W. 4, the Chief Cashier of the Petitioner's bank in his deposition stated: By 'payment stopped by drawer' we mean that the drawer had money in his ale but has stopped payment of a particular cheque. It may be that he had no sufficient money. P.W. 4 stated that the Branch Manager had authority to allow overdrawal even for a sum more that Rs. 2,000,1/-. Therefore, it cannot be inferred that the Petitioner knowing that he had no money and the cheque would be dishonoured had issued the cheque inducing P.W. 1 to deliver the articles. This much is clear that the explanation of the Petitioner cannot be said to be false. In this background, this may he a case of breach of contract, but the essential ingredient that at the time of delivery of the articles the Petitioner and dishonest intention of deceiving P.W. 1 is not proved beyond reasonablc doubt in this case. 13. The complaint petition shows that it was filed because the alleged deceitful trick of the Petitioner has caused damage and harm to the company as a huge amount is now blocked unrealised. 13. The complaint petition shows that it was filed because the alleged deceitful trick of the Petitioner has caused damage and harm to the company as a huge amount is now blocked unrealised. I have already indicated in the earlier paragraph that this may be a case of breach of contract, but the dishonest intention of deceiving is not there. The main distinction between civil liability on the one hand and liability under criminal Jaw on the other hand either on account of criminal breach of trust or cheating lies in the existence of dishonest intention. Since dishonest intention is the essential ingredient of the offence, the prosecution must prove its existence beyond reasonable doubt. It will not suffice for the prosecution merely to prove the circumstances which may be consistent either with dishonest intention of the accused or absence of such intention. It is true that dishonest intention cannot be directly proved and has to be inferred from the conduct of the accused both before and after delivery of the property which completes the offence of cheating. It may also be inferred from the wrrounding circumstances. Difficulty in proving beyond reasonable doubt is no excuse. Unless circum stances are proved from which the necessary dishonest intention can reasonably be inferred, the use of the machinery of criminal court for the purpose of realisation of one's dues from another person is not proper - See Amritlal v. Rangalal Agarwalla. 14. In the result, the revision is allowed. The conviction and sentence are set aside and the Petitioner is acquitted of the charge. Final Result : Allowed