JUDGMENT A. K. Sengupta, J.: This revisional application is directed against the judgment and order of the learned Sessions Judge, Hooghly, confirming the conviction and sentence of the petitioner under s. 417 of the Indian Penal Code. 2. Shortly stated the prosecution case is that the accused had intimacy with Urmila, the de facto complainant (PW 1) and both were in love with each other. The intimacy developed into free mixing between them and the accused held out the promise to marry PW 1 and acting on that promise PW 1 allowed the accused frequent sexual intercourse with her. As a result of this intimacy PW 1 became pregnant and pressed the accused to marry her but the accused deferred the matter on one pretext or other and ultimately refused to marry her. 3. On 14th January, 1979 First Information Report was lodged by the complainant. She was examined on 19th March, 1981. 4. The charge is under s. 417 of the Indian Penal Code. Where a charge of cheating rests upon a representation, which is false and which relates not to an existing fact but to certain future event it must be shown by the prosecution that the representation was false to the knowledge of the accused at the time when it was made. To hold a person guilty of offence of cheating it is necessary to show that he had fraudulent or dishonest intention 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. It is of no consequence to show that in fact representation made by the accused ultimately came out to be untrue. Deception is the essence of the offence of cheating. Mere failure to honour the promise does not by itself constitute the offence of cheating. In order to bring a case within the meaning of cheating if has to be proved, firstly, that false representation had been made and, secondly, that such representation was false to the knowledge of the accused and was made in order to deceive the complainant. 5. In the light of this principle we have to examine whether the approach of the learned Judge in this case was erroneous or not. The case of the prosecution is that the accused had frequent sexual intercourse with PW 1. 5. In the light of this principle we have to examine whether the approach of the learned Judge in this case was erroneous or not. The case of the prosecution is that the accused had frequent sexual intercourse with PW 1. She conceived as a result of such sexual intercourse with the accused on account of the promise of marriage. The charge under s. 417 cannot be substantiated in the absence of any evidence to show that the said representation by the accused was false to the knowledge of the accused at the time it was made. Now let us consider the evidence. 6. P.W.1 in her evidence said as follows: "For about two years back the accused insisted on marrying me repeatedly he used to give out to me that he had deep love for me. Accordingly the accused would come to our house in the absence of my parents in the night. He would drag me by catching my hand. Thereafter the accused sexually intercoursed me frequently for one year. I allowed him all of the patience to have sexual intercourse with me on the belief that he would marry me. Thereafter I gave out to him that I became pregnant. I told him this in one Poush about two years back. After hearing that I became pregnant due to such intercourse with me the accused refused to marry me. Thereafter I stated this incident to my parents. My parents called for the neighbours who assembled in our house. The father of the accused also came to our house. This incident was also stated to the father of the accused in the presence of these neighbours. But his father also refused to get the accused married with me." 7. In her cross-examination she stated as follows: "Since before 15 days from the date of lodging the FIR the accused stopped mixing with me totally. Before lodging FIR the accused ultimately refused to marry me about 15 days before lodging the FIR. 15 days before lodging FIR in one evening accused was called upon to the house of Doyal Majhi. Inmates of Doyal Majhi were also present there including myself. For the first time on that day the accused refused to marry me as I was at that time carrying. It is not a fact that I ever stayed in the house of Jhogru Master. Inmates of Doyal Majhi were also present there including myself. For the first time on that day the accused refused to marry me as I was at that time carrying. It is not a fact that I ever stayed in the house of Jhogru Master. Thereafter two days after that one Salish was held in our house. Before the first sexual intercourse I would love deeply the accused and vis-a-vis and out of such relation I allowed him to have sexual intercourse with me. At that time the accused would always tell me that he would marry me. There are three bed rooms in my father’s house. My father's family consists of 10 members including myself. The sexual intercourse in between myself and the accused always took place in our house. The accused proposed to marry me before sexual intercourse in between myself and the accused took place for the first time. The accused also would tell me that after getting content from his parents he would marry me. It was not known to me that he would not marry me for want of consent of his inmates. Whenever I would ask him to marry me for some time for this purpose he would not disclose the cause of such delay to me. He assured me to marry me one or 2 months after first sexual intercourse. My inmates would not know that myself and the accused would sexually cohabit. I did not disclose the fact of sexual intercourse to anybody. The accused would take information from me regarding the absence of my parents in our house. My father works in Champdani Jute Mill, Bhadreswar and my mother used to go in the neighbouring locality occasionally for gossip. The accused would come at 12 hours in the night and 2/3 P.M. in the afternoon to our house. In my bed room my younger sister aged about 7 years also take bed. But at 12 o'clock in the night or so the accused would come to my room when my said younger sister would remain asleep." 8. P.W.2 the father of the complainant, stated in his evidence as follows: "The accused used to come to our house and my said daughter would also go his house. Out of their mixing and love in between the accused and my daughter one son has been born by my daughter. P.W.2 the father of the complainant, stated in his evidence as follows: "The accused used to come to our house and my said daughter would also go his house. Out of their mixing and love in between the accused and my daughter one son has been born by my daughter. I came about this fact my daughter was pregnant. I called for the local people to persuade the accused to marry my daughter lest her life was spoiled after delivery. I came to know about pregnancy of my daughter from my wife." 9. The evidence of the other witnesses is also that out of free mixing of the accused with the complainant, the complainant had been pregnant. 10. On the basis of such evidence, it cannot be held that P.W.1 would not have agreed to have sexual intercourse with the accused but for the alleged promise. There was love between the accused and the complainant. The complainant allowed the accused to come to her house in the midnight to have sexual intercourse with her. Nowhere has she stated that she would not have sexual intercourse but for the alleged promise. On the contrary, she stated in her cross examination that the accused assured to marry her one or two months after first sexual intercourse. It appears that because of love they indulged in sexual intercourse. 11. Reliance has been placed on the decision of this Court in Jayanti Rani Panda v. State reported in 1983 (II) CHN 290. In that case the allegation of the complainant was that the accused used to visit her house and proposed to marry her and, accordingly, he consented her to sexual intercourse on the plea that he would really marry her and eventually she conceived. There the Court held as follows: "But one thing that strikes us is that if she had really been assured of marrying by the accused who was visiting her house and in whose promise she had faith, why should she keep it a secret from her parents if s he had belief in that promise? Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention for keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention for keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complaint is that the accused did not till back out. Therefore it cannot be said that till then accused had no intention of marrying the complainant even if he had held out any promise at all as alleged. The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of or misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry––we do not know where. If a full grown girl consent to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she became pregnant it is an act of promiscuity on her part and not act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the court can be assured that from the very inception the accused never really intended to marry her." 12. Similar view has been taken by the Division Bench of this Court, (to which one of us is a party) in Dibash Sarkar v. The State, reported in 1989 Crl.r LJ NOC 30 (Cal). 13. In our view the courts below have failed to appreciate the scope of s. 417 of the Indian Penal Code. On the evidence on record, the ingredients to constitute an offence as defined in s. 417 IPC have not been proved. 14. For the reason, aforesaid, the conviction and sentence has to be set aside. This application therefore succeeds. The Rule is made absolute. The petitioner is discharged from his bail bond. On the evidence on record, the ingredients to constitute an offence as defined in s. 417 IPC have not been proved. 14. For the reason, aforesaid, the conviction and sentence has to be set aside. This application therefore succeeds. The Rule is made absolute. The petitioner is discharged from his bail bond. J. N. Hore, J.: I agree. Rule made absolute.