Judgment Dharmpal Sinha, J. 1. This appeal on special leave has been filed under section 378 (4) of the Code of Criminal procedure by the complainant against the Judgment and order dated 20.6.1986, whereby the Learned Sub-divisional Judicial Magistrate, Patna city, has acquitted the accused Bishun pd. Agrawal, opposite party No.2 in the special leave application (To be hereinafter referred to as the respondent) of the offence punishable under Sections 406 and 420 of the indian Penal Code in Complaint Case No.33 of 1980, Trial No.554 of 1986. 2. The case had been initiated on the basis of a complaint filed by the appellant, Hanuman Pd. Didwania on february 12, 1980 before the Sub-divisional Judicial Magistrate, Patna city and he had alleged therein that the accused-respondent had come to the shop of the complainant situated at jhauganj, Police Station-Chowk, District-Patna at 12 noon on 20.7.1977 and made a request that he was in urgent need of Rs.93,00/-, without which his prestige may be spoiled and the appellant on assurance given by Respondent that he would pay back the money within a week, handed over the amount of Rs.93,00/- to the respondent. The respondent did not pay back the money as promised and later when the appellant approached him, the respondent issued a cheque of Rs.93,00/- on 27.10.1977 drawn on the Central Bank of India; but when the appellant deposited the cheque for encashment to the Bank, the cheque was returned uncashed as there was no outstanding amount to the credit of the respondent in the Bank. According to the further case made out in the complaint, the complainant approached the respondent and produced before him dishonoured cheque and made demand for payment of his money; but the respondent did not exceed to the request and eventually made a refusal to pay back the amount, whereafter on 12.2.1980 the complaint was filed. 3. The respondent when put on trial denied the allegation and had taken a defence that there were some transactions between him and the appellant, and in settlement of some account he had issued a post dated cheque, which was to be presented before the Central Bank within specified period but the same was not done and the case was filed by the appellant. 4. 4. It appears that during the course of trial in all six witnesses had been produced on behalf of the complainant (appellant) and some documents including the complaint petition, dishonoured cheque and bank note had been brought on the record. 5. The Learned Trial Court after considering the evidence has held that the charge of the offences punishable under Sections 420 and 406 of the Indian Penal Code, for which the respondent had been charged during the trial, has not been established and has acquitted him. 6. The contention of the Learned counsel for the appellant is that when the respondent had approached the complainant for the first time, he had given false assurance that he would pay back the money within a week and on the false assurance given by the respondent, the appellant had advanced the amount of Rs.93,00/-, and the complainant during the course of evidence also deposed to this effect and in such a situation, the Learned Trial Court took a wrong view that no charge of the offence punishable under Sec.420 of the Indian Penal Code has been established. He further submitted that there was no business transaction going on between the appellant and the respondent and in such a situation when money had been paid on assurance, it will amount not only to civil liability but criminal liability and the respondent should have been held to have been committed of the offence punishable under Sec.420 of the Indian Penal code. 7. The Learned Trial Court has made observation in the impugned judgment to the effect that at the time of issuance of cheque the complainant had not delivered any thing to the respondent and so no case of cheating is made out. According to the contention of the learned Counsel for the appellant the offence of cheating was committed not on the date of issuance of cheque as was observed by the Learned Trial Court but on the initial day of payment of the amount of Rs.93,00/- on assurance for return. The submission of the Learned counsel for the appellant is that there is definitely sufficient evidence of fact that the appellant had given Rs.93,00/- to the respondent on repeated request and on. assurance of the latter, but the respondent did not pay back the money and later issued a cheque, which was dishonoured. 8. The submission of the Learned counsel for the appellant is that there is definitely sufficient evidence of fact that the appellant had given Rs.93,00/- to the respondent on repeated request and on. assurance of the latter, but the respondent did not pay back the money and later issued a cheque, which was dishonoured. 8. A perusal of the record of lower court shows that out of the witnesses examined on behalf of the complaint p. W. I (Laxaman Pd. Agrawal), P. W.2 (Satish Kumar Agrawal), P. W.3 (Pawan kumar Jiwrajika) and the complainant p. W.4 have all stated about advancement of Rs.93,00/- to the respondent and said that the respondent had given assurance that he would be paying back the money within 4-6 days. According to them the money was not paid and about issue of cheque also there was evidence of some of the witnesses. An employee of the Bank had been examined as P. W.5 on behalf of the complainant and he stated about the receipt of the cheque in the Bank and according to him it was not cashed and returned and necessary endorsements have been marked as exts.2 and 3. 9. The point that arises for decision in this appeal is whether in view of the contention it can be held that the finding of the Learned Trial court holding the respondent not guilty of the Offence punishable under Sections 420 and 406 of the Indian Penal code is improper and un-justified? 10. Now as regards the charge of the offence punishable under Section 406 of the Indian Penal Code, it is obvious that there could be no question of criminal breach of trust because the amount of Rs.93,00/- had been taken by the respondent, even according to the case of the complainant, for his own need and the respondent, according to the case and the evidence of the complainant, was in need of the money as he said. There was no question of mis-appropriation of money or converting dishonestly to his own money, and so acquittal of the respondent of the charge punishable under Sec.406 of the Indian Penal Code is obviously unassailable. No argument has also been advanced on this point. 11. There was no question of mis-appropriation of money or converting dishonestly to his own money, and so acquittal of the respondent of the charge punishable under Sec.406 of the Indian Penal Code is obviously unassailable. No argument has also been advanced on this point. 11. As regards the offence punishable under Sec.420 of the Indian penal Code, it may be noticed that mere promise to pay within certain specified period, that was made by the respondent about which the complainant and his witnesses could not amount to cheating only because he did not keep up the promise. Cheating means dishonestly inducing a person on false representation, and persuading on the basis of false representation of fact some body to deliver any article including money to any person. In the instant case, according to the complaint petition and according to the evidence of the complainant and his other witnesses also, the respondent had said to the complainant that he was in urgent need of money and if he would not be delivered the amount demanded, his prestige will be spoiled, meaning thereby that if he would not get the money and meet the need his prestige may be ruined. On this factual aspects there seems to be no evidence at all of any witness of the complainant or even of the complainant that respondent had actually no urgent need of money or that his prestige was not of shake. Unless it would be proved that on some facts he made statement, which were not true, the ingredients of the offence of cheating, in my opinion, could not be made out. Promise to pay the money or assuring that it would be paid within any specified period is not a statement of fact or misrepresentation about any fact, and such type of promise is often contained in hand notes when money is borrow. But that gives rise only to civil liability. 12. It may be also noticed here that the Trial Court, inter alia, observed that the appellant did not lodge the complaint within a week or so when assurance of paying back the money as allegedly given by the respondent was not fulfilled. The complainant himself, as appears, was only interested in getting back the money rather than in prosecuting the respondent. The complainant himself, as appears, was only interested in getting back the money rather than in prosecuting the respondent. Although money is said to have been advanced on 20.7.1977 and the cheque was issued on 27.10.1977, no criminal case was filed for many months and the appellant continued for many years approaching the respondent for the money, and it was only on 12th of February, 1980 that the complaint was filed. It further appears that a civil suit had also been filed by the appellant. So, it appears that the appellant himself was under an impression that respondent should be persuaded to pay back the money and very belatedly the complaint was lodged presumably to put pressure for enforcing the civil liability when complainant had already made up his mind to file a civil suit. The filing of the complaint in such a situation may even be considered to be mala fide, for a short-cut device was perhaps adopted to enforce a civil liability for putting pressure on the respondent. 13. Considering all these facts and circumstances of the case if the learned Trial Court has held that the charge punishable under Sec.420 of the Indian Penal Code has not been established beyond all reasonable doubt against the respondent-accused, I do not think that the finding can be said to be improper and unjustified, requiring interference with the Judgment of acquittal. 14. So, in the light of the discussions made above. I decide the point for decision holding that the finding of the Learned Court below acquitting the respondent (No.2) of the offences on which he has been charged is not improper or un-justified. Accordingly, I find no merit in this appeal and it is, accordingly, dismissed. Appeal Dismissed.