A. K. Ali v. C. H. Mammuty — 1988 DIGILAW 453 (KER)

Judgment :- Complainant is the appellant. C.C. No. 186 of 1985 is a private complaint filed by him before the Judicial First Class Magistrate-I, Tellicherry against the two respondents for an offence punishable under S. 420 of the Indian Penal Code. Both the accused were acquitted by the Magistrate. 2. The case of the appellant is that on account of the deceit and the fraudulent or dishonest inducement of both the respondents, he was made to part with Rs. 35,000/- in their favour on the assurance that N.O.C., visa, job and other facilities will be arranged for him in some Gulf Countries. 3. The first respondent is running a travel and recruiting agency under the name "M/s United Enterprises". The head office is at Bombay and branch office is there at Tellicherry. Second accused is the employee of the first accused in the office at Tellicherry. On getting information, the appellant approached the accused and he was asked to go over to Bombay to meet the first accused. First accused was informed of his desire to go on employment to Gulf Countries. He promised to arrange everything and the appellant was got interviewed at the intervention of the first accused by one Mathew. Thereafter, Rs. 35,000/- was demanded/informing that he is successful in interview and there is no problem and he will get visa shortly. As a first consignment, the first accused wanted Rs. 8,000/-. Since he had no amounts with him and as directed by the lst accused, he returned to Tellicherry and paid Rs. 8,000/- to the 2nd accused on 6-12-1983, for which a receipt was also given. Then he was frequently contacting the 1st accused at Bombay and he was being given encouraging informations. He was also informed subsequently against the earlier assurance that the interview already conducted has been concluded and another visa could be arranged without interview. The balance amount of Rs. 27,000/- demanded by the lst accused was handed over to him when he came over to Tellicherry on 16-2-1984. 4. Thereafter, as directed by the first accused, the appellant reached Bombay for medical check-up. He underwent medical check-up and stayed there for sometime. Since the attitude of the 1st accused was not found encouraging, he had to return. Finally he realised that he was being cheated. Therefore on 28-5-1985, he went to Tellicherry office, where both the accused were present. Thereafter, as directed by the first accused, the appellant reached Bombay for medical check-up. He underwent medical check-up and stayed there for sometime. Since the attitude of the 1st accused was not found encouraging, he had to return. Finally he realised that he was being cheated. Therefore on 28-5-1985, he went to Tellicherry office, where both the accused were present. When the amount was demanded, the attitude of the 1st accused was denial coupled with a statement that his amount is in the Arabian sea. The complaint was filed on these allegations. 5. The appellant examined himself as P.W. 1. Two other witnesses are examined as PWs. 2 and 3. Exts. P1 to P3 are the documents proved by him. DWs 1 and 2 are the witnesses examined for the defence and Exts. D1 to D3 are the documents. Exts. X1 and X2 are the documents produced and proved through DW. 2. The learned Magistrate considered the evidence in detail and rejected the prosecution case not only by discrediting the prosecution evidence, but also by observing that an offence of cheating is not made out. In that process the defence evidence was also believed. 6. The defence, as argued before me was that on behalf of the first accused, an amount of Rs. 8,000/- alone was received by the 2nd accused and at the request of the appellant, it was repaid by the 2nd accused. But in the cross-examination of PW. 1, one suggestion made was that the amount was paid to DW. 1 who in turn paid the same to the appellant. Another suggestion was that the entire amount of Rs. 8,000/- paid by the appellant was already spent for expenses in connection with recruitment, interview etc. While questioned under S. 313 of the Code of Criminal Procedure, even though the first accused at first denied having received Rs. 8,000/- through the 2nd accused on 6-2-1983, in answer to a subsequent question, he admitted that the amount was received by the 2nd accused and Ext. P1 is the receipt issued by him for that purpose. When he was asked during the questioning whether he was anything more to say, he said that he did not receive any amount from anybody. At the time of questioning under S. 313, neither himself nor the 2nd accused said that the amount was repaid through DW. 1 or otherwise or Ext. When he was asked during the questioning whether he was anything more to say, he said that he did not receive any amount from anybody. At the time of questioning under S. 313, neither himself nor the 2nd accused said that the amount was repaid through DW. 1 or otherwise or Ext. D2 receipt was received. Second accused did not even admit receipt of Rs. 8,000/-. He denied Ext. P1 receipt also Finally, in answer to the last question, he said that he did not receive any amount at all. 7. After giving all these answers, they examined DW. 1. He said that even the payment of Rs. 8,000/- on 6-12-1983 was through him and that it was he who persuaded the 2nd accused to receive the amount in spite of his refusal on the ground that he cannot receive the amount without the direction from the lst accused. He also said that again at the request of the appellant, he went to the 2nd accused and the 2nd accused at first refused to return the amount in the absence of the 1st accused. His further statement is that when he insisted and agreed to undertake the responsibility the second accused yielded but wanted Ext. P1 to be returned. He also said that the appellant informed that Ext. P1 is missing and therefore on his undertaking the amount was repaid by the 2nd accused to the appellant and the appellant issued Ext. D2 receipt in which he also signed. This is a new version which was not put up at any time before. 8. As PW. 1, the appellant has spoken to the entire case put forward by him. He said that it was on the basis of the deceipt and the fraudulent or dishonest inducement of the first accused that he parted with Rs. 35,000/- by two instalments. He also said that he was induced to make the payment on the assurance given by the 1st accused that everything including N.O.C., visa and job will be provided. He further said that on account of the subsequent conduct of the lst accused, he became sure that even from the inception, the mens rea was there for the accused. The attitude of the first accused, including his conduct on the last date when the amount was demanded back, was also spoken to by him. 9. PW. He further said that on account of the subsequent conduct of the lst accused, he became sure that even from the inception, the mens rea was there for the accused. The attitude of the first accused, including his conduct on the last date when the amount was demanded back, was also spoken to by him. 9. PW. 2 was examined to prove payment of Rs. 27,000/- to the lst accused on 16-2-1984 and refusal of the 1st accused to repay the amount on 28-5-1985. PW. 2 said that on both the occasions, he was present and he saw the payment as well as the refusal of the 1st accused with an observation that the amount is in the Arabian sea. PW. 3 was examined only to prove that on 28-5-1985 when the appellant demanded the amount back the 1 st accused denied having received any amount and finally told him that his amount is in the Arabian sea. 10. The learned Magistrate rejected the evidence of the appellant regarding Rs. 27,000/- on the ground that it is not evidenced by any record while the payment of Rs. 8,000/- is evidenced by a receipt. In this connection, the explanation offered by the appellant is that Rs. 8,000/- was paid to the 2nd accused in the absence of the lst accused while the subsequent payment of Rs. 27,000/- was direct to the 1st accused. He also said that when receipt was demanded, the first accused did not issue the same saying that since the payment is directly to him, no receipt is required. 11. PW. 2 is a tea-shop owner at Azhikode and PW. 3 is a weaver belonging to Alavil near Azhikode. PW. 2 said that he came to Tellicherry for the purpose of purchasing bakery items from K.R. Biscuit Company. The version of PW. 3 is that he came with a dual purpose viz., purchase of bakery items from K.R. Biscuit Company and making enquiries with the 1st accused regarding N.O.C. for which arrangements were already made. They were disbelieved by the Magistrate as chance witnesses who had no occasion to come to Tellicherry. It was also pointed out by the Magistrate that for the purpose of purchasing bakery items, it may not be likely that they will come to Tellicherry when bakeries are available at Cannanore, which is nearer to them. They were disbelieved by the Magistrate as chance witnesses who had no occasion to come to Tellicherry. It was also pointed out by the Magistrate that for the purpose of purchasing bakery items, it may not be likely that they will come to Tellicherry when bakeries are available at Cannanore, which is nearer to them. This ground may be good so far as PW. 2 is concerned, even though the question of consumer preference is there and the Magistrate has overlooked the same. But PW. 3 has given another cogent reason for his presence. That was not considered at all. 12. This is an appeal against acquittal. Normally, I would not have interfered with the appreciation of the evidence made by the learned Magistrate. The learned counsel for the respondents drew my attention to certain decisions in order to point out the limitations in the exercise of powers while considering an appeal against acquittal. Now the position of law in that respect is well settled. All the decisions of the Supreme Court as well as various High. Courts have laid down the same principle even though language used in several decision are different. On the mere ground that another conclusion is also possible the appellate court will not be justified in appraising the evidence and coming to such a different conclusion. In AIR 1987 SC 1083 : (1987 Cri LJ 974), referred to by the counsel, it was held : "The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. When two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous". 13. 13. Therefore, what the decision said is that the view adopted by the trial court must be a plausible one and it should not be one liable to be characterised as perverse in the sense that such a conclusion could not have been possibly arrived at by any court acting reasonably and judiciously. That is a well accepted legal position. 1986 Cri LJ 255 (SC), pointed out by the counsel, also laid down only the same principles. The question is only whether the appreciation of the evidence and the conclusions arrived at by the Magistrate come within the categories mentioned above, justifying interference in an appeal against acquittal. 14. In the matter of appreciation of the evidence, the learned Magistrate seems to have been guided by many illegalities. First of all, he presumed that since the respondents did not approach the appellant with any promise or inducement and the appellant alone approached them, there cannot be any question of deceipt or inducement by the respondents and hence cheating is not involved. Even the counsel for the respondents did not justify that wrong view which influenced the appreciation of evidence and conclusions arrived at by the Magistrate. The question is not as to who approached the other first. Deceipt and inducement when a needy person like the appellant approached them and the wrong belief induced by them for the purpose of extracting money at that time is sufficient for the purpose if all the ingredients of cheating are involved. But for this illegal approach the appreciation and conclusion could have been otherwise. 15. It is true that statements given by the accused while questioned under S. 313 of the Code of Criminal Procedure cannot be used as substantive evidence in order to fill up the lacuna on the side of the prosecution, but those answers could be read along with the acceptable items of prosecution evidence and used for tilting the balance in cases where the court is having some doubt regarding the evidence. While appreciating the evidence of PWs 1, 2 and 3, the learned Magistrate has not at all taken into account the answers given by the accused when questioned under S. 313. 16. While considering Ext. D2 receipt and the evidence of DW 1, the trial court did not consider the stand taken by the accused while cross examining PW 1. While appreciating the evidence of PWs 1, 2 and 3, the learned Magistrate has not at all taken into account the answers given by the accused when questioned under S. 313. 16. While considering Ext. D2 receipt and the evidence of DW 1, the trial court did not consider the stand taken by the accused while cross examining PW 1. So also, the trial court overlooked the fact that none of them had a claim while giving answers to questions under S. 313 that Rs. 8,000/- was paid back or a receipt obtained. In fact, the stand taken by both the accused was that they did not receive any amount. 17. DW 1 was mainly believed on the basis of a comparison of the specimen signature of the appellant and his admitted signatures in the sworn statement and vakalath along with the disputed signature in Ext. D2 receipt. It is true that under S. 73 of the Evidence Act, the court is entitled to have such a comparison. But the position of law is now well settled. The court may not be justified in assuming the role of an expert to base the decision solely on such a comparison. The court can have such a comparison along with the opinion of an expert obtained under S. 45. The evidence of the expert under S. 45, that of one having acquaintance under S. 47 and that formed by the court under S. 73 are all opinions and the court is the ultimate authority to take a decision. The court, not being an expert in the science of comparison for forming an opinion, it is always safe not to base its decision solely on its comparison when the writing or signature in a document is disputed, except when the dissimilarity is so patent that the naked eye of a non expert itself is sufficient to conclude that the two are not by the same person. In making the comparison and arriving at the conclusion also, I think that the Magistrate erred patently. The sworn statement and vakalath exactly tally with the specimen signature taken by the court and contained in Ext. D3. Even the accused have no case that the signature contained in Ext. D2 is having even the remotest resemblance with those admitted signatures. They claim similarity only in the writing of the name of the appellant in Ext. D2. The sworn statement and vakalath exactly tally with the specimen signature taken by the court and contained in Ext. D3. Even the accused have no case that the signature contained in Ext. D2 is having even the remotest resemblance with those admitted signatures. They claim similarity only in the writing of the name of the appellant in Ext. D2. That writing on the top of Ext. D2 alone purports to be the writing of the name of the appellant by him, That itself appears to be in bold hand as distinguished from the name written in the three admitted documents which resemble between themselves. The name written on the bottom of Ext. D2 with a line underneath alone is claimed to be the signature. On account of its patent dissimilarity with the admitted signature of the appellant, the claim at the time of argument was that it is only an initial and not the genuine full signature. The Magistrate said that what is contained in Ext. D2 is not the full signature of the appellant, but his name alone was written as signature. That is said to tally with the name admittedly written by him in the vakalath, sworn statement and Ext. D3. I have personally compared these records to find out whether the Magistrate was justified to any extent in coming to that conclusion. I was not able to find even the remotest similarity. In Ext. D2, in the purported signature portion, the letters A and K are written jointly. In the other three items, these are written separately with some distance and a full stop in between. The name of 'Ali' in Ext. D2 is also not in any way similar to the vakalath, sworn statement or Ext. D3. In Ext. D2 the writing is very bold. There is also a line drawn beneath the name which is absent in the other three. A perusal of the letters in Ext. D3, sworn statement and the vakalath shows that the letters are not written in the bold hand. In these circumstances, I fail to understand how such a conclusion was arrived at by the Magistrate on the basis of comparison. It was such a comparison and the conclusion arrived at thereby that persuaded the Magistrate to come to the conclusion that DW 1 is an impartial and honest witness. In arriving at such a conclusion, the improbability of Ext. It was such a comparison and the conclusion arrived at thereby that persuaded the Magistrate to come to the conclusion that DW 1 is an impartial and honest witness. In arriving at such a conclusion, the improbability of Ext. D2 on account of the various circumstances indicated by me earlier were not at all considered. If actually Ext. D2 is genuine and the amount it given back, Ext. P1 would not have been allowed to be with the appellant. In the cross examination of PW 1 or in the 313 statement, no explanation for this was offered. Explanation for the first time comes from DW 1 which militates against the defence till then and is unconvincing. 18. Another factor that influenced the appreciation of the evidence and the conclusions of the Magistrate is his impression that the appellant was not having a passport. In para 14 of the judgment, the Magistrate said : "As pointed out by the defence counsel, no evidence is there to show that PW 1 has got a passport. No question of visa arises if there is no passport. According to PW 1, the passport is with Mathews and he further submits that Mathews is the person who interviewed him for the accused. But no evidence is there to show that one Mathews is there in Bombay for the accused to conduct interview. So no question of entrusting passport to Mathews arises". 19. Before me, it was not disputed that the appellant is having a passport and it was entrusted to Mathews at the time of interview. The only contention was that the respondents have nothing to do with it. But this argument 0 is also not in conformity with the stand taken by the first accused when questioned under S. 313 Cr.P.C. At that time he took the stand that the evidence concerning interview medical check-up, etc., were at his instance and the impression from all these by the appellant that by the services of the first accused he will be able to go to Gulf countries shortly on employment are all correct. Ext. P2 was spoken to by the appellant as the international certificate of vaccination obtained at Bombay as directed by the first accused. Ext. P2 was spoken to by the appellant as the international certificate of vaccination obtained at Bombay as directed by the first accused. The fact that a medical check-up was made and a vaccination certificate was obtained by the appellant at Bombay was admitted by the first accused when questioned under S. 313. In Ext. P2, there is a column for entering the passport number. Passport number is recorded there as 432631. The learned counsel for the appellant has shown me a Photostat copy of the passport stating that it was the original that was produced at the time of interview at the instance of the first accused The learned counsel for the respondent had also occasion to peruse the same. The number in that Photostat copy exactly tallies with the number in Ext. P2. That the appellant is having a passport of the number mentioned above and it was entrusted by him to one Mathews at Bombay at the time of interview was admitted at the time of arguments also. The only argument was Mathews is the agent of a foreign sponsor and first accused had no responsibility in the interview by him. But this argument is also against the stand of the first accused in his 313 statement in relation to the evidence of the appellant as PW 1. Therefore, evidently, the approach made by the trial Magistrate in this respect was also wrong and perverse. and it has affected his conclusions seriously. 20. In this connection, the learned counsel for the respondents wanted me to read the subsequent sentence also from the judgment. It reads : "For argument sake, if it is presumed that passport was given to Mathews even the complainant did not take any steps to get the passport in the court". But that sentence is of no avail. When the entrustment of passport at the instance of the first accused at the time of interview is not disputed, there is absolutely no question of the appellant taking steps for its production. It has to be produced from Bombay and it is a matter involving huge expenditure also. Such a step was unnecessary for the appellant to prove his case. 21. While questioned under S. 313, both the accused admitted that the first accused is the travel agent who is dealing with recruiting, N.O.C. and visa and the second accused is his employee. Such a step was unnecessary for the appellant to prove his case. 21. While questioned under S. 313, both the accused admitted that the first accused is the travel agent who is dealing with recruiting, N.O.C. and visa and the second accused is his employee. The further fact that the first accused is having offices at Bombay and Tellicherry was also admitted and proved. When the attention of the first accused was drawn while questioned under section 313 to the evidence of PW 1 that it was he who invited him to Bombay for medical check-up and that after medical check-up he was directed to go home on the assurance that he will be able to go to Gulf countries within one month, the first accused admitted those items of evidence to be correct. When his attention was drawn to the evidence of PW 1 that on account of these facts he believed that he will be able to get visa through the first accused and go to Gulf countries, that impression was also admitted by the first accused to be correct. These aspects were also not taken into account by the trial court, while appreciating the evidence of PWs 1 to 3. 22. Ext. P3 is a letter sent by the first accused to the appellant from Bombay. In that letter, he was trying to pacify and console the appellant by saying that there will be some delay and in spite of delay, he will arrange everything to enable the appellant to go to the Gulf countries on a good employment as promised. In order to disbelieve the evidence of PWs 1 to 3, regarding payment of amounts, the learned Magistrate says that Ext. P1 is conspicuously silent regarding payment of any amount and if actually any amount was paid, it would have found a place in Ext. P3. In drawing that inference, the Magistrate lost sight of the fact that any reference to the amount was unnecessary in Ext. P3 and even the admitted receipt of Rs. 8,000/- on 6-12-1983 does not find a place in Ext. P3. A reading of Ext. Pa shows that the first accused was admitting his liability to arrange everything in a preferential manner and he was only apologetic for the delay. P3 and even the admitted receipt of Rs. 8,000/- on 6-12-1983 does not find a place in Ext. P3. A reading of Ext. Pa shows that the first accused was admitting his liability to arrange everything in a preferential manner and he was only apologetic for the delay. In fact, if any further amount was due from the appellant to the first accused for arranging visa and N.O.C., there must have been a reference of the same in Ext. P3. Any absence of such a reference could have been interpreted only in favour of the appellant and not against him. An attempt was made to interpret Ext. P3 and the previous conduct of the first accused as excluding the possibility, of mens rea to constitute the offence. But it has to be remembered that first accused, even on his showing, is a veteran in the field. As argued for the appellant, he could have been adopting these misleading tactics for squeezing out money and keeping the victim always on hope in order to avoid the possibility of himself turning against him for legal action. If actually the lst accused had the best of intentions at the time of making the promise and extracting amounts and he made earnest attempts but failed due to reasons beyond his control as contended, he could have produced acceptable documentary evidence in that connection. I said so not to place the burden on him but only because his case as argued before me is that he is a licensed travel and recruiting agent for the past 16 years having the authority to recruit and emigrate more than 1000 persons an year through his recognised offices at Bombay and Tellicherry and maintaining official records for all these purposes. He was not able to produce any such evidence which means he has no such evidence and he did nothing. That means that the appellant is correct when he says that all the hopes given by him were false to his knowledge and he had the dishonest mental element even from the inception. 23. Even though Ext. D2 purports to be a receipt issued by the appellant in favour of the second accused, as already slated by me, neither the accused have got a case that they paid such an amount or obtained such a receipt. It is admitted and it is further evidenced by Ext. 23. Even though Ext. D2 purports to be a receipt issued by the appellant in favour of the second accused, as already slated by me, neither the accused have got a case that they paid such an amount or obtained such a receipt. It is admitted and it is further evidenced by Ext. P1 that the payment of Rs. 8,000/- by the appellant was on 6-12-1983. But Ext. D2 is written as if the payment was in July 1983. It was argued on behalf of the respondents that their firm is a very reputed one and they are having two licences from the Central Government. I was also told that the business is carried on for the last 16 years and the first accused is empowered to emigrate over one thousand people per year. If so, he must be having proper accounts and registers. Such a mistake in Ext. D2 would not have been committed if that be the position. So also, they could have proved the repayment by production of the records kept by them in the ordinary course of business. The mistake in the date in Ext. D2 would not have been there. The argument that the date was wrongly given by the appellant purposely cannot be accepted not only for the reason that Ext. D2 is not genuine. The receipt of Rs. 8,000/- and its repayment must find a place in the official records of the first accused. If repayment was in the circumstances mentioned by DW 1 and Ext. D2 was executed as spoken to by him such a calculated wrong on the part of the appellant would have been impossible. 24. It is more or less admitted that there was some arrangement between the appellant and the respondents on the basis of which the respondents had the liability to arrange the emigration papers and job to the appellant. The evidence of PWs 1 to 3 had to be appreciated in the background of these facts and circumstances. 25. It is true that a reading of the complaint along with the depositions of PWs 1 to 3 shows that on minute details regarding the dates of payments, etc., there are little contradictions and discrepancies. But such contradictions and discrepancies are not capable of affecting the main case of the appellant. 25. It is true that a reading of the complaint along with the depositions of PWs 1 to 3 shows that on minute details regarding the dates of payments, etc., there are little contradictions and discrepancies. But such contradictions and discrepancies are not capable of affecting the main case of the appellant. The main case of the appellant is the assurance and inducement by the fraudulent or dishonest representation by which Rs. 35,000/- was paid in two instalments. In that respect, the appellant was having a consistent case which is supported by his testimony as PW 1 and the testimonies of PWs 2 and 3. Even if PW 2 is disbelieved, the case of the appellant stands proved by the other items. The learned Magistrate disbelieved PW 2 on the basis of the evidence of DW 2 also. While PW 2 said that he is having a tea-shop for which he has taken a licence from the Panchayat, the evidence of DW 2, who is the Executive Officer of the Panchayat, is that no licence was taken. We are not at the question whether PW 2 has a licence or not. He might have gone wrong in saying that he has a licence or he might have even falsely stated so. It is not unusual to have a tea shop without a licence. His is not the sole evidence. His evidence only supports the evidence of PWs 1 and 3 probabilised by the contradicting stands taken by the accused and the admissions made in 313 statements. 26. On the basis of the above discussion, I am fully satisfied that the appreciation of the evidence by the Magistrate and his conclusions are vitiated by manifest illegalities and they are against the weight of evidence as observed by the Supreme Court in AIR 1987 SC 1083 : (1987 Cri LJ 974). Such conclusions could not have been arrived at by any tribunal acting reasonably and judiciously. Therefore, the appreciations and conclusions could also be said to be perverse justifying interference in an appeal against acquittal. The learned counsel for the respondents argued that even if the entire case of the complainant and the evidence adduced by him are accepted, an offence under S. 420, as defined in S. 415, cannot be said to have been made out. The learned counsel for the respondents argued that even if the entire case of the complainant and the evidence adduced by him are accepted, an offence under S. 420, as defined in S. 415, cannot be said to have been made out. The reason is that the guilty mental element which is necessary for constituting the offence has not been established. There cannot be any dispute regarding the fact that intention has to be dishonest even at the time of making the promise. A mere deceit will not suffice. So also, mere fraudulent or dishonest inducement also will not suffice. The deceit with the requisite mental element must precede the dishonest or fraudulent inducement. For the offence of cheating, there must be deception which should always precede the fraudulent or dishonest inducement and it must be established that the intention of the accused was dishonest even at the time of making the promise. A promise and its failure of fulfillment without the above mental element would constitute only a civil liability. 27. The decisions in (1974) 4 SCC 616 : (1974 Cri LJ 1026), 1972 SCC 740 (Sic), AIR 1973 SC 326 : (1972 Cri LJ 1243) and 1973 Cri, LJ 140 (Pat) were relied on. All these decisions have only held the above propositions of law, and said that before convicting a man for cheating, these ingredients will have to be established by the prosecution. 28. But the dishonest intention which constitute the mens rea on the basis of which the dishonest or fraudulent inducement was made is a mental element. It may not be always capable of direct proof by positive existence. Therefore, in many cases, the existence of mental element even at the time of the promise could only be inferred from the facts and circumstances admitted or proved and it may include the subsequent conduct also. In this case, the proved facts show that the appellant has discharged his entire liability and what remained was only the fulfillment of the promise made by the first accused which forms the deceit by which the fraudulent or dishonest inducement was made to compel the appellant to part with money making him believe that the payment is necessary for the arrangements and that on payment everything will be made O.K. and he could go to Gulf countries on employment. Even though receipt of Rs. Even though receipt of Rs. 8,000/- alone was admitted, it was not disputed that much more amount is necessary and will be charged for making the arrangements alleged by the appellant as promised by the first accused. The evidence of PW 3 itself proves this fact. If PWs 1 to 3 are believed the additional amount paid is Rs. 27,000/-. I see no reason to disbelieve them in the light of the other facts already discussed. Even if their version regarding the exact amount is not accepted Ext. P3 and the 313 statement of the first accused along with the evidence of PWs 1 to 3 and the documents indicate that whatever amount claimed and agreed was paid and nothing remained to be done by the appellant. The repayment alleged is a myth. The evidence that first accused did not make any arrangement is not disproved by production of the available records with the first accused. The evidence that after the entire amounts came to his hand, the first accused changed his colour and gradually revealed his intentions is clear from the evidence. He has no case that any further amount is due from the appellant and the promise could not be fulfilled on account of the failure of the appellant. There is no reason to disbelieve PWs 1 to 3 when they said that ultimately the first accused denied everyone and behaved rudely towards the appellant. On account of the facts admitted by him including the liability admittedly undertaken by him, the first accused had the duty atleast to satisfy the conscience of the court by production of the records available with him that he repaid the amount or made the arrangements within his power. It is true that the position of an accused in a criminal case is envious and he can keep silent leaving everything to be proved by the prosecution or make mutually contradicting defences also. It is true that the position of an accused in a criminal case is envious and he can keep silent leaving everything to be proved by the prosecution or make mutually contradicting defences also. But in appreciating the prosecution evidence, the court is entitled to take all those aspects into consideration, The only possible inference from the proved facts and circumstances and the conduct of the first accused is that even from the inception, the first accused was having the dishonest intention and that it was with such intention that he deceived the appellant and fraudulently or dishonestly induced him to part with money by inducting a wrong belief in him that his desire of going on employment to the Gulf countries will be fulfilled on making the payment. 29. A request came from the counsel for the respondents that the case may be remanded for the purpose of adducing fresh evidence and also to send Ext. D2 for expert opinion. Nobody has any case that sufficient opportunities were not given for adducing evidence. The respondents never wanted Exhibit D2 to be sent to an expert for opinion. I do not mean to say that they should be penalised for such default even if it is found that examination of Ext. D2 by an expert is necessary to find out the truth. But on the basis of the evidence and circumstances discussed by me in detail, I am of opinion that examination of Exhibit D2 by an expert is not necessary at all. Even without such an expert opinion, it is clear that it is a fabricated document. I do not mean to assume the role of an expert. But that is not necessary to find that Ext. D2 is a fabrication. That document is even against the case put forward by the accused while questioned under S. 313 and the suggestions made during cross-examination of prosecution witnesses. From the very appearance and circumstances Ext. D2 is a manipulated and cooked up document. No expert opinion is necessary for that purpose. The attitude of the trial court and the conduct of the parties before it do not justify the request for a remand to adduce further evidence. Both sides were given the opportunities which they wanted. I do not mean to say that suggestion made in the cross-examination of witnesses is binding on the accused as admissions. The attitude of the trial court and the conduct of the parties before it do not justify the request for a remand to adduce further evidence. Both sides were given the opportunities which they wanted. I do not mean to say that suggestion made in the cross-examination of witnesses is binding on the accused as admissions. But those suggestions in cross-examination and statements of the accused given when questioned under S. 313 could also be taken into account for ascertaining the bona fides of the contentions. Looked on all these angles, Ext. D2 is a manipulation and the case need not be remanded for the purpose of it being got examined by an expert. 30. So far as the 2nd accused is concerned, I do not think that there is any scope for a conclusion that he has committed an offence punishable under S. 420. It is true that he received Rs. 8,000/- and issued Ext. P1 receipt. The appellant had no case that he played any deception or made any fraudulent or dishonest inducement on the basis of which he parted with money. He was only acting as employee of the first accused. It may not be proper to make him liable for cheating. 31. As a result of the above discussion, I find that the appellant succeeded in establishing the guilt of the 1st respondent for cheating. Therefore, the appeal as against the first accused has to be allowed and it has to be dismissed as against the second respondent. 32. While confirming the acquittal of the second respondent and dismissing the appeal as against him, the appeal is partly allowed and the acquittal of the 1st accused is set aside. He is convicted for an offence punishable under S. 420 of the Indian Penal Code. The counsel was heard on the question of sentence. The counsel says that no minimum sentence of imprisonment has been fixed under the section and therefore a fine of Rs. 35,000/- may be imposed leaving the first respondent the option of paying the amount or challenging the decision by way of special leave before the Supreme Court. The counsel was heard on the question of sentence. The counsel says that no minimum sentence of imprisonment has been fixed under the section and therefore a fine of Rs. 35,000/- may be imposed leaving the first respondent the option of paying the amount or challenging the decision by way of special leave before the Supreme Court. Though I am not very much in favour of that request on account of the way in which the 1st accused acted and the manner in which he perpetrated the heinous crime by duping an innocent person who was all out to go for employment to Gulf Countries, I am inclined to take a lenient view on account of the generous attitude taken by the appellant and the time lag that occurred. Therefore, I do not feel that ends of justice require a term of imprisonment. The first accused is therefore sentenced for the offence under S. 420 IPC to pay a fine of Rs. 35,000/- in default of payment of which he will undergo simple imprisonment for one year. The fine, if paid, will he paid to the appellant. Appeal partly allowed.