ORDER: -The firm M/s. Deviprasad Omprakash Bajoria, through its partner Omprakash Deviprasad Bajoria, non-applicant No.1, filed a private complaint under section 420, read with section 34 of the Indian Penal Code against five accused including the applicant. It was alleged that the transaction for purchase of 42 bales of pressed cotton was done by the applicant for and on behalf of M/s. Madanlal Paliram and Sons, also an accused in the complaint along with the applicant. It was also alleged that the applicant and three other accused persons were partners of the firm M/s. Madanlal Paliram and Sons. After due verification, the learned trial Court had issued process against all the five accused. Two of the accused persons viz. Smt. Lalitadevi Madanlal Zunzunwala and Smt. Meenadevi Rajkumar Zunzunwala came to be discharged in criminal revision application No. 78 of 1979. The trial Court, however, proceeded against the remaining three accused including the applicant. The trial Court convicted the applicant and one Radheshyam for the offence punishable under section 420, read with section 34 Indian Penal Code. The two accused had preferred an appeal to the Sessions Judge, who partly allowed the appeal and acquitted Radheshyam but the conviction of the applicant was maintained for the offence under section 420 Indian Penal Code simpliciter. It is against this conviction, the applicant has preferred this revision application challenging the judgments and orders of the Courts below. 2-3. The relevant facts are that the non- applicant No.1 firm owned and possessed 42 full pressed cotton bales stored in the compound of one M/s. Hans Cotton Industries (Pvt.) limited, Yeotmal. One Ramniwas Pannalal Chokhani (P. W. 2) is said to be a broker in full pressed cotton bales. The applicant, on 5-9-1978, contacted Ramniwas (P. W. 2) on phone for purchase of the cotton bales. As the said broker Ramniwas was authorised by nonss-applicant No.1 to enter into bargain of selling the cotton bales to the applicant, the contract was finalised through him. It was Ramniwas who had discussed the terms of the contract with the complainant Omprakash (P. W. 1) on 6-8-1978. According to the complainant, the price of the goods was fixed at Rs. 4180/- per khandi. It was alleged that the delivery of the said cotton bales was to be made at Yeotmal and the price was to be paid at Yeotmal on delivery of the goods. According to the complainant, the price of the goods was fixed at Rs. 4180/- per khandi. It was alleged that the delivery of the said cotton bales was to be made at Yeotmal and the price was to be paid at Yeotmal on delivery of the goods. A representation in that regard was made by the applicant to the complainant Omprakash (P. W. 1) through the broker Ramniwas (P.W.2). In view of the representation, the complainant delivered the said 42 bales of cotton to S. A. Agarwal and Karsandas Manik, the representatives of the applicant, on 7-8- 1978 at. Yeotmal. The goods were loaded in the truck and removed from the premises on 9-8-1978. On the very same day, the complainant requested the applicant to make payment of Rs. 81,835.68 ps. by letter Ex. 41. This letter only stated that the applicant should make arrangement for payment and nothing more. On the same day, a bill for Rs. 81835.68 (Ex. 138) was also sent by the complainant with an endorsement at the bottom Since no payment was made, the complainant continued the correspondence with the applicant in order to secure the payment of the price. The telegrams dated 21-8-1978 and dated 24-8-1978 were sent by the complainant. The applicant, vide his letter dated 30-8-1978, informed Ramniwas (P. W.2) that arrangement was being made for making payment of the price of the bales. It was alleged in the complaint that on 9-9-1978 a cheque was drawn on State, Bank of India, Branch Office, Khamgaon which was handed over to the complainant Omprakash (P. W. 1) through Ramniwas (P.W. 2). This cheque was signed by the applicant. The complainant passed the voucher for receiving that cheque. When the cheque was presented to the Bank for collection on 12-9-1978, it was returned back with the endorsement "refer to the drawer", meaning thereby that the funds were insufficient in the account of the applicant for meeting the obligation of payment of the price. The complainant issued a telegraphic notice and since the applicant did not respond, the complainant filed a private complaint. The complainant issued a telegraphic notice and since the applicant did not respond, the complainant filed a private complaint. The trial Court framed two charges as under: "That you, on or about the 5th day of August 1978 to 9-8-1978 at Yeotmal, in furtherance of common intention, cheated M/s Deviprasad Omprakash Bajoria, by dishonestly inducing him to deliver 42 bales of cotton to you and which was the property of the said Omprakash. Secondly that on 9-9-1978, you cheated Shri Omprakash by dishonestly inducing him to deliver a voucher (receipt) for payment of the cost of the said bales, committed an offence punishable under section 420 r/w S. 34 Indian Penal Code and within my cognizance." 4. The learned trial Court, after recording the evidence, acquitted all the accused, including the applicant of the second charge. What is impugned in this revision is the conviction based on first charge which both the Courts below have held to be proved in so far as the applicant was concerned. 5. The learned counsel for the applicant (hereinafter referred to as the accused) Shri B. V. Gaikwad submitted that in view of the evidence on record, both oral and documentary, the learned Courts below erred in law in holding that the accused had made the alleged misrepresentation to the complainant, much less dishonest or fraudulent, as required by law. According to him, the complainant miserably failed to prove that the goods in question viz. 42 pressed cotton bales were to be delivered only against immediate payment of the price thereof, or that the complainant was induced to deliver the goods by fraudulent or dishonest mis-represesntation made by the accused. It was also the contention of the learned counsel for the accused that even if the evidence is accepted, as is available on record, the offence of cheating is not made out and the dispute, if any, was purely of a civil nature. As such the complaint was maliciously filed just to coerce the accused to make payment and was nothing short of the abuse of the process of criminal law. In any eventuality, it was submitted that it cannot be said that the complainant has proved the case beyond reasonable doubt and as such the accused deserves to be acquitted, whereas Shri V. G. Palshikar, the learned counsel for the complainant, submitted that the charge of cheating has been well established. In any eventuality, it was submitted that it cannot be said that the complainant has proved the case beyond reasonable doubt and as such the accused deserves to be acquitted, whereas Shri V. G. Palshikar, the learned counsel for the complainant, submitted that the charge of cheating has been well established. He contended that this being a revision, the concurrent findings of fact should not be disturbed in exercise of the revisional powers by this Court. It was also his submission that since the accused has taken the defence of denial simpliciter, he cannot now contend that the dispute, if any, was of a civil nature. 6. It will be interesting to note that the case of the complainant, as found in paragraph 14 of the complaint, was ''as stated above was first cheated on 9-8-1978." This date represents the date on which the goods are said to have been delivered as a result of representations made by Shri. S. A. Agarwal and Shri Karsandas Manik. Both of them are mentioned in the list of witnesses attached to the complaint. None of these persons has been examined by the complainant. In these circumstances, even if it is accepted that they made certain representations, fraudulent or otherwise, there is not an iota of evidence on record that the accused had authorised them to make particular representations. In fact, on this short ground alone the accused was entitled to acquittal. However, since the Courts have given their findings on merits, I propose to discuss them at length hereinafter. 7. The next contention of the complainant was that the accused cheated him, alleging in paragraph 7 of the complaint that "by making false representations through the said agent Shri Ramniwas Chokhani that the price of the said bales would be paid immediately on delivery. The complainant but for the representations made by accused No.1 acting for himself and acting for and on behalf of other accused would not have delivered the aforesaid cotton bales." What has to be determined is the exact nature of representations said to have been made by the accused. 8. Admittedly, there was no direct talk or even conversation on phone between the accused and the complainant. 8. Admittedly, there was no direct talk or even conversation on phone between the accused and the complainant. Whatever talk was done in regard to the transaction in question was between the complainant and P. W .2 Ramniwas who made representations on behalf of the accused, as is the case of the complainant. A careful perusal of the evidence of Ramniwas would show that he gives a complete go by to the contention of the complainant. Shri Ramniwas has deposed as under: On 5-8-1978, there was a telephone of Shri Dungarshi Seth from Khamgaon that if there are good cotton bales at Yeotmal, he wanted to purchase the same. He said that he is ready to pay Rs. 4180/- per khandi (one Khandi of 356 Kgs.) for good quality cotton. I told him that the complainant Omprakash has got 42 bales of cotton of good quality. I also told him that if the goods are being approved at Yeotmal, early, he was ready to sell the same. On this, he asked me to finalise the deal. Accordingly, I talked with Omprakash on telephone. The complainant also said that he is ready to finalise the transaction and sell the bales. On 6-8-1978.I accordingly talked on telephone with Dungarsi Seth. He told me that he would send a man to approve and pass the goods and on receipt of the goods, he would arrange for payment." 9. This is the maximum evidence on the point of representation. This, does not spell out the story of the immediate payment on delivery as the complainant wants the Court to believe. The accused, even on the say of the said Ramniwas, had agreed to "arrange for payment". This Ramniwas also was examined at the stage of verification after the complaint was filed before the trial Court. At that stage also he had deposed on oath he would arrange full payment after receiving goods). When he was confronted with this statement in cross-examination, he admitted the said statement to be correct. The theory of "immediate payment" is also blown up by the documents on record, viz. Ex. 41 and Ex. 138. The complainant, in his evidence, has admitted those documents to be in his handwriting and that the contents thereof are correct. Ex. 41, which is the letter dated 9-8-1978, signed by the complainant himself, reads as under: (Matter in vernacular omitted- Ed.) Even Ex. Ex. 41 and Ex. 138. The complainant, in his evidence, has admitted those documents to be in his handwriting and that the contents thereof are correct. Ex. 41, which is the letter dated 9-8-1978, signed by the complainant himself, reads as under: (Matter in vernacular omitted- Ed.) Even Ex. 138 is also of the same date, viz. 9-8-1978 and signed by the complainant himself. It mentions, "Delivery against form No. 16 Eighty one thousand eight hundred fifty five and sixty paise only." Thus the whole evidence on record, both oral and documentary spells out only one fact that the accused was to arrange for the payment after the goods were delivered. There is no evidence whatsoever that the accused had ever represented to make "immediate" payment. The evidence of the complainant on this point is not the direct evidence. His evidence is in the nature of hearsay evidence only. The direct evidence is that of Ramniwas which I have already adverted to before. There is also on record letter Ex. 40 dated 9-8-1978 itself. This letter written by the complainant Omprakash himself to M/s Hans Cotton Industries (Private) Limited, Yeotmal in whose premises the said bales were lying. It is he who has written that the goods should be allowed to be taken by the firm of the accused. It is not stated in that letter that the goods should be allowed to be taken only when payment is made. If the agreement was about "immediate payment", certainly such a direction would have been given by the complainant to M/s Hans Cotton Industries (Private) Limited. Thereafter telegram was sent by the complainant to the effect, "Please remit T. T. 81835.68 State Bank, Yeotmal -wire". It is, thus, crystal clear that the story of representation in the matter of "immediate payment" was introduced for the first time after the cheque given on 9-9-1978 bounced later. But that can never be given retrospective effect. I am concerned with the representations that were made at an initial stage, as a result of which the complainant was induced to part with his property. It is well settled principle of law 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 promise. It is well settled principle of law 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 promise. Such a dishonest intention cannot be inferred from the mere fact that he could not be subsequently fulfil the promise. (See AIR1973 SC 326 :(1972 Cri LJ 1243), State of Kerala v. A. P. Pillai). Only because the cheque given a month later was not honoured is not sufficient by itself to infer dishonest intention at the initial stage by giving retrospective effect. The complainant has come forth with a positive case that the accused had agreed to make "immediate" payment. As already discussed earlier, he has miserably failed to prove his case. Both the learned lower Courts have not kept these principles of law in mind and hence have arrived at a wrong finding, if it can be called a finding at all. The accused is, thus, entitled to be acquitted. In fact, there is no question of reasonable doubt even. This is nothing but an abuse of the process of criminal law. The proper forum to get the dispute resolved is the Civil Court where the complainant can plead and prove his claim. 10. This brings me to the contention of Shri Palshikar, the learned counsel for the complainant that since the accused has taken the defence of denial simpliciter, he cannot raise the contentions now advanced by him. Such an approach is per se misconceived. There is no theory of estoppel in the matter of defence taken by the accused in the trial. In fact the burden of proving the ingredients of the alleged offence is predominantly on the prosecution. If it fails to prove the case, more so beyond reasonable doubt, there is no question of considering the defence at all. The accused can plead several defences in the alternative. The law does not cast any burden upon the accused excepting the cases covered by section 105 of the Indian Evidence Act which is not the case here. Falsity of defence by itself cannot help the complainant or prove the case of prosecution. The entire burden is on the prosecution to prove its case independently. The law does not cast any burden upon the accused excepting the cases covered by section 105 of the Indian Evidence Act which is not the case here. Falsity of defence by itself cannot help the complainant or prove the case of prosecution. The entire burden is on the prosecution to prove its case independently. No-doubt under the circumstances of a particular case, the falsity of defence becomes relevant and the Court can take that also into consideration but it will strengthen the prosecution case if it proves its case independently. In no eventuality, as the law stands, the accused can be convicted on the ground that he has taken a false defence, even if the prosecution has failed to prove the offence by legal and cogent evidence to the satisfaction of the Court. 11. The other contention of Mr. Palshikar was that since the two lower Courts have concurrently held that the accused was convicted of an offence of cheating, that concurrent finding should not be set aside by the High Court while exercising powers under revisional jurisdiction. Undoubtedly, as a general practice this Court is loath to interfere with the concurrent findings of fact arrived at by the Courts below. This will depend upon the facts and circumstances of each particular case. If the Court arrives at a finding without properly considering the evidence on record and without applying the principles of law correctly, it can never be called a "finding of fact" in the accepted sense, as in that case it will amount to perverse and illegal appreciation of evidence. Finding of fact given on this back ground, even if concurrent, can never be binding on the revisional Courts. To maintain such a finding would lead to miscarriage of justice and amount to travesty of law. While exercising its revisional powers under section 397,read with section 401, of the Code of Criminal Procedure, the Court has full powers "of satisfying itself or himself as to the correctness, legality or propriety of any finding." An illegal finding does not become a legal one only because it is concurrent" Moreover, reading the two judgments in this case, it cannot be said that the Courts below could have arrived at the finding of misrepresentation about "immediate" payment. In view of the evidence already discussed above, it is not possible to arrive at the finding that the complainant was induced to part with the property on representation of the accused that the price thereof would be paid immediately. 12. In view of the discussions of evidence and principles of law given above, I hold that the prosecution has totally failed to prove that the accused had committed an offence of cheating, as was alleged. 13. In the result, this revision is allowed the judgments of the Courts below are set aside and consequently the conviction and also the sentence. Since I am holding that the accused has not committed any offence, much less the offence of cheating, he stands acquitted. The fine paid by the accused shall be refunded to him by the Court below. Bail bonds shall also stand cancelled. Revision allowed.