Judgment :- (Criminal Revision filed under Section 397 read with 401 Criminal Procedure Code against the Judgment of acquittal dated 19.3.2003 and made in C.A.No.55 of 2002 on the file of the First Additional District Court-cum-Chief Judicial Magistrate Court, Coimbatore reversing the judgment of conviction dated 13.2.2002 and made in C.C.No.216 of 1997 on the file of the Judicial Magistrate No.VII Court, Coimbatore.) The de facto complainant/P.W.1 is the revision petitioner and the revision is directed against the acquittal of the respondents 2 to 4/A1 to A3 as per judgment dated 19.3.2003 made in C.A.No.55 of 2002 on the file of the First Additional District Court-cum-Chief Judicial Magistrate Court, Coimbatore, reversing the conviction and sentence of two years rigorous imprisonment and to pay a fine of Rs.5,000/-, in default three months simple imprisonment for the offence under Section 420 I.P.C. as per judgment dated 13.2.2002. 2. The facts that led to the filing of this Criminal Revision Case are as follows:- The revision petitioner/de facto complainant is the proprietor of Altra Fbs Company and was manufacturing yarn of dyed woven fabric. The second respondent/A1, is the father of the fourth respondent/A3 and the third respondent/A2 is the General Manager of Kiron Fashion Private Limited Company. A1 is the Chairman and A3 is the Director of Kiron Fashion Private Limited Company. As per the purchase order placed by the respondents 2 to 4/A1 to A3 for the purchase of fabrics, the revision petitioner transported his fabrics to them through Southern Railway as per Invoice No.29 (Ex.P-2) dated 29.7.1998 on the strength of a hundy for Rs.28,05,097/-. The hundy was dishonoured for want of sufficient funds. The respondents 2 to 4/A1 to A3 by entering into criminal conspiracy prior to 10.5.1997, cheated the revision petitioner. The cheque for Rs.5 lakhs issued by the respondents 2 to 4/A1 to A3 was also dishonoured when presented for collection as “insufficiency of funds” on 14.3.1997. Accordingly, charge-sheet was filed for the offence under Sections 120B and 420 I.P.C. read with Section 109 I.P.C. against the respondents 2 to 4/A1 to A3. 3. Before the Judicial Magistrate No.VII, the prosecution examined the revision petitioner as P.W.1, besides P.Ws.2 to 5 and marked Exs.P-1 to P-14. 4. Accordingly, charge-sheet was filed for the offence under Sections 120B and 420 I.P.C. read with Section 109 I.P.C. against the respondents 2 to 4/A1 to A3. 3. Before the Judicial Magistrate No.VII, the prosecution examined the revision petitioner as P.W.1, besides P.Ws.2 to 5 and marked Exs.P-1 to P-14. 4. The Judicial Magistrate considering such evidence recorded finding that the respondents 2 to 4/A1 to A3 were guilty in respect of the offence under Section 420 I.P.C. and convicted and sentenced as stated above and acquitted in respect of the offence under Section 120B I.P.C. The appeal C.A.No.55 of 2002 filed by the respondents 2 to 4/A1 to A3 was allowed and the conviction and sentence imposed by the trial Court were reversed, which made the revision petitioner to file this private Criminal Revision Case against the acquittal of the respondents 2 to 4/A1 to A3. 5. Heard the learned counsel for the revision petitioner, the learned Government Advocate (Criminal side) for the first respondent/State, the learned counsel for the third respondent and the learned counsel for the forth respondent. 6. It is reported that during the pendency of this Criminal Revision Case, the second respondent/A1, who is also known as Karan Lulla.M., pursuant to the change of name as per publication made in Tamil Nadu Government Gazette Part VI dated 2.8.1999, died on 6.11.2004. Xerox copy of the Death Certificate is also filed. 7. The learned counsel for the revision petitioner vehemently contended that the first appellate Court is not correct in stating that the facts only disclose a civil liability and without resorting to civil proceedings, the criminal action has been initiated by misusing the provisions and to avoid payment of court fees in respect of the civil liability. It is also submitted that though civil proceedings and criminal proceedings are maintainable simultaneously, the facts also disclose criminal offence and then it is submitted that since the civil suit is only to recover the amount due in respect of hundy issued by the respondents 2 to 4/A1 to A3, the finding of the first appellate Court that criminal action will not lie is not proper. It is also submitted that only on the assurance made by the respondents 2 to 4/A1 to A3 that the hundy issued by them would be honoured after 90 days, the same was accepted by the revision petitioner to supply the goods required by them. The dishonour of hundy and the non-payment of price for the goods would establish, the dishonest intention of the respondents 2 to 4/A1 to A3 to cheat the revision petitioner. Inasmuch as the respondents 2 to 4/A1 to A3 cheated by issuing hundy which was dishonoured, despite the fact they received the goods supplied by the revision petitioner, it is clear that the offence under Section 420 I.P.C. is made out and therefore, the judgment of the first appellate Court being erroneous and perverse finding recorded, the same is to be set aside. 8. The learned counsel for the revision petitioner also relied on the decision of the Honourable Supreme Court in Devender Kumar Singla – vs. - Baldev Krishnan Singla reported in AIR 2004 Supreme Court 3084, in which the Hon’ble Supreme Court held thus:- “In order to appreciate the rival submissions, it would be necessary to consider on the background of the factual position as to whether offence punishable under Section 420, I.P.C. is made out. Section 420 deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. Section 415 defines “cheating”. The said provision requires: (i) deception of any person, (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction “or”. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction “or”. The definition of the offence of cheating embraces some cases in which transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence. The essential ingredients to attract Section 420 are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and the (iii) means rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420.” 9. The learned counsel appearing for the fourth respondent/A3 argued that the offence under Section 420 I.P.C. as alleged by the revision petitioner/de facto complainant is not made out, in that for the hundy Ex.P-1 issued by the respondents 2 to 4/A1 to A3 towards the supply of the goods as ordered by the respondents 2 to 4/A1 to A3 and which according the revision petitioner was dishonoured, there is a civil liability and without initiating civil action, the complaint made for taking criminal action is improper. According to the learned counsel, though the trial Court failed to record proper finding, the first appellate Court is perfectly justified that the offence under Section 420 I.P.C. is not made out and the prosecution failed to establish such a case and accordingly acquitted the respondents 2 to 4/A1 to A3. It is further argued by the learned counsel that in revision filed against acquittal of A1 to A3 as per judgment of first appellate Court, which does not suffer from any procedural illegality or manifest error of law and evidence has been properly considered, this Court cannot take a contrary view to set aside the order of acquittal. It is further submitted to avoid payment of court fees, criminal action was initiated against the respondents 2 to 4/A1 to A3 and the first appellate Court considering these aspects rightly acquitted the respondents 2 to 4/A1 to A3. 10. It is further submitted to avoid payment of court fees, criminal action was initiated against the respondents 2 to 4/A1 to A3 and the first appellate Court considering these aspects rightly acquitted the respondents 2 to 4/A1 to A3. 10. The learned counsel for the fourth respondent/A3 relied on the following decisions:- (1) Hridaya Ranjan Pd.Verma – vs. - State of Bihar reported in AIR 2000 Supreme Court 2341, in which the Hon’ble Supreme Court held thus:- “In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.” (2) S.N.Palanitkar – vs. - State of Bihar reported in AIR 2001 Supreme Court 2960, in which the Hon’ble Supreme Court held thus:- “In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.” (3) Thankappan Nadar – vs. - Gopala Krishnan reported in 2003 Supreme Court Cases (Criminal) 1205, in which, the Hon’ble Supreme Court held thus:- “In a revision application filed by the de facto complainant against the acquittal order, the Court’s jurisdiction under Section 397 read with Section 401 Cr.P.C. is limited. The law as enunciated by the Supreme Court does not empower the Court exercising the revisional jurisdiction to re-appreciate the evidence.” It is further held thus:- “In the present case, the High Court has not found any procedural illegality or manifest error of law in the order passed by the appellate Court. It is nobody’s case that the appellate court has shut out or has overlooked the evidence which clinched the issue. The High Court has only re-appreciated the entire evidence and has taken contrary view for setting aside the acquittal order. This is not permissible while exercising the revisional jurisdiction at the instance of the de facto complainant against the order of acquittal.” (4) Bindeshwari Prasad Singh – vs. - State of Bihar reported in AIR 2002 Supreme Court 2907, in which the Hon’ble Supreme Court held thus:- “The jurisdiction of the High Court in dealing with an appeal against acquittal is much wider than the jurisdiction of revisional Court exercising jurisdiction under Section 401 against an order of acquittal at the instance of a private party. All grounds that may be urged in support of the revision petition may be urged in the appeal, but not vice versa. The dismissal of an appeal preferred by the State against the order of acquittal puts a seal of finality on the judgment of the trial Court. Even if dismissal of appeal is on grounds of limitation it is dismissal for all purposes. In such case it may not be proper exercise of discretion to exercise revisional jurisdiction under Section 401 against the order of acquittal at the instance of a private party. Exercise of revisional jurisdiction in such a case may give rise to an incongruous situation where an accused tried and acquitted of an offence, and the order of acquittal upheld in appeal by its dismissal, may have to face a second trial for the same offence of which he was acquitted.” 11. Exercise of revisional jurisdiction in such a case may give rise to an incongruous situation where an accused tried and acquitted of an offence, and the order of acquittal upheld in appeal by its dismissal, may have to face a second trial for the same offence of which he was acquitted.” 11. Reiterating the arguments as advanced by the learned counsel for the 4th respondent, the learned counsel for the third respondent relied on the decision in Meharunnisa Bivi – vs. - Abdul Rahim and another reported in 2001-2 Law Weekly (Criminal) 723, in which this Court held thus:- “Merely because the other view held by the trial Court can also taken in this case, the appellate order cannot be revised unless it is shown that miscarriage of justice had occurred by allowing the appeal filed by the accused No.1 where two views are possible, the benefit only goes to the accused and on that count, the appellate order is not revisable. Even if this court chooses to revise the order passed on appeal and restores the order passed by the trial Court, the problem is, there is an embargo in Section 401 clause 3 of Cr.P.C. and this Court has no power to convert a finding for acquittal to one of conviction. Under these circumstances, no purpose will be served in remitting the matter to the appellate Court for rehearing, even if it is found that the order passed by the trial Court is more apt than the Order passed by the appellate Court.” 12. The evidence let in through P.Ws.1 to 4 reveals that the respondents 2 to 4/A1 to A3 placed orders for purchase of fabrics from the de facto complainant/P.W.1, viz., the revision petitioner to the value of Rs.28,05,097/- for which purpose, A1 to A3 issued Ex.P-1 hundi. The hundi, when presented for collection, was returned as “insufficiency of funds”. P.W.1 filed a complaint petition before the Egmore Police Station, and before the Inspector of Police, Egmore, accepting the liability, A3 executed a promissory note (Ex.P-3) dated 18.11.1996 in favour of the complainant that he will repay Rs.28,05,097. They also assured that they will pay the debt in the first weak of February, 1997. But, the accuded did not pay the amount as agreed. They also assured that they will pay the debt in the first weak of February, 1997. But, the accuded did not pay the amount as agreed. Thereafter, on 10.3.1997, A1 to A3 requested the de facto complainant to supply fabrics and also gave cheque for Rs.5 lakhs, which cheque when presented in the bank was dishonoured on 17.3.1997 as “insufficiency of funds”. Therefore, P.W.1/de facto complainant gave complaint Ex.P-8 dated 9.4.1997 to the Superintendent of Police(Rural), Coimbatore, against the respondents 2 to 4/A1 to A3, which was registered in DCB Crime No.5 of 1997 under Sections 120B and 420 IPC, which was taken on file in C.C.No.216 of 1997 on the file of the Judicial Magistrate No.VII, Coimbatore, subject matter of this revision. 13. Subsequently, the revision petitioner also filed another complaint under Section 138 of Negotiable Instruments Act against the respondents 2 to 4/A1 to A3 and the same has been taken on file in C.C.No.308 of 1998 on the file of the Judicial Magistrate No.VII, Coimbatore. 14. Therefore, as rightly observed by the first appellate Court, the complainant, viz., the revision petitioner filed the complaint on the strength of the hundi which was returned when presented as “insufficiency of funds” and he also filed another complaint in C.C.No.308 of 1998 under Section 138 of the Negotiable Instruments Act for the dishonour of the cheque for Rs.5 lakhs issued by respondents 2 to 4/A1 to A3. The complainant/P.W.1 also admitted in his evidence that during enquiry on his petition A3 accepting to pay the invoice amount of Rs.28,05,097/- executed the promissory note (Ex.P-3) and he filed xerox copy of promissory note. since he had to initiate civil action. So, it is clear that for the amount due as per Ex.P-2 invoice, criminal proceedings have been initiated in C.C.No.308 of 1998 for dishonour of the cheque for Rs.5 lakhs and in respect of hundi in C.C.No.216 of 1997 subject matter of this revision. It is also not known as to whether, the goods have been transported as per the invoice Ex.P-2 dated 29.7.1996. 15. The fact reveals that towards supply of garments by the de facto complainant, respondents 2 to 4/A1 to A3 issued Ex.P-1 hundi and when the hundi was presented for collection, it was returned as “insufficiency of funds”. It is also not known as to whether, the goods have been transported as per the invoice Ex.P-2 dated 29.7.1996. 15. The fact reveals that towards supply of garments by the de facto complainant, respondents 2 to 4/A1 to A3 issued Ex.P-1 hundi and when the hundi was presented for collection, it was returned as “insufficiency of funds”. As such, it is clear that A1 to A3 failed to pay the money for the garments supplied to them by the de facto complainant and therefore, it is only a breach of contract and the offence of cheating is not attracted. The accused and the de facto complainant had continued business transactions. Therefore, there is nothing to indicate or presume that when the accused issued hundi, they had an intention to cheat the de facto complainant. 16. In fact the accused addressed a letter to the Assistant Commissioner of Police, Central Crime Branch, Egmore, Chennai (which is available at page No.109 of the trial court records) after the complaint was preferred against them that they are making arrangement to settle all matters amicably and they had no intention of acting against the interest of their creditors and seeking reasonable time till the first weak of February, 1997 for raising funds and to settle the matter with the complainant and by sale of property at Gemini House Dr.Radhakrishnan Salai and once the property is sold, the money will be first paid to the complainant. 17. There is also alternate remedy in the civil Court for non payment of money towards the supply of garments to the respondents 2 to 4/A1 to A3. Without resorting to civil action, however, the criminal action has been initiated, which cannot be said to be proper. There is nothing to infer that there was dishonest intention on the part of the accused at the inception of transaction and therefore, the subsequent conduct of the accused, which may be dishonest it will not make the accused liable for the offence of cheating and at the best, the accused are only guilty of breach of contract and not guilty of cheating and the prosecution also failed to establish that mens rea exist at the time when the accused issued Ex.P-1 hundi. 18. 18. The first appellate Court taking all these aspects into consideration rightly reversed the conviction and sentence imposed to the accused and acquitted the accused since the offence under Section 420 I.P.C. is not made out. Such finding and judgment of the first appellate Court does not call for any interference. 19. In the result, the Criminal Revision fails and the same is dismissed as against the respondents 1, 3 and 4/State and A2 and A3. The Judgment of acquittal dated 19.3.2003 made in C.A.No.55 of 2002 by the First Additional District Court-cum-Chief Judicial Magistrate, Coimbatore reversing the judgment of conviction dated 13.2.2002 made in C.C.No.216 of 1997 on the file of the Judicial Magistrate No.VII Court, Coimbatore is confirmed. Since the second respondent/A1 died during the pendency of this revision, the revision against the second respondent/A1 is dismissed as abated.