A. K. Goswami, J.:- This application under Section 401 read the Section 397 of the CrPC has been filed challenging the order dated 30.12.2002 passed by the learned Judicial Magistrate, 1st Class, Karimganj, in G.R. Case No 835/200 conviting and sentencing the petitioner to un­dergo imprisonment for one year with a fine, of Rs. 5,000/-, in default of payment of fine, to suffer simple imprisonment of one month for the offences committed under Section; 417 IPC and the judgement and order dated 10.02.2004 passed by the learned Ad hoc Additional Sessions Judge Karimganj, in Crl. No. 4 (1) of 2003 modifying the period of sentence of three months while maintaining the conviction under Section 417 IPC. 2. The prosecution case, in brief, that on 05.09.2000, one Smti. Mayarani Das lodged an ejahar before the Officer-in-Charge, Pathar Kandi Police Station alleging that about 2 months back, Shri Riman Das, a distant relative had taken her to his house in or­der to look after and take care of his mother, who was lying ill and while she was nursing his mother, the brother of Riman, viz. Ripak Das, by making promises of marrying her, had sexual intercourse with her, as a result of which, she was in the family way and was about two months pregnant. It was stated in the said ejahar that in a "Vichar" uncles of Ripak Das, namely, Jagadish Das and Sri Ron Das of­fered her Rs 2000/- to enable her to go for abortion which was not acceptable to her is also stated that on that day Ripak Das had also assaulted her grievously. 3. On the basis of the aforesaid FIR, Pather Khandi Police Station Case No. 147 2002 under Sections 341/493/325/34 IPC was registered. The police started investiga­tion and had also recorded the statement of Mayarani Das under Section 164 CrPC. Af­ter completion of investigation, the Investiga­tion Officer submitted charge-sheet against the present petitioner under Section 493/354 IPC. 4. The learned Trial Court, on the basis of the materials available on record, framed charge under Section 417 IPC. The charge on being read over and explained to the peti­tioner, he pleaded not guilty and claimed to be tried. 5. During trial, the prosecution examined 6 (six) witnesses in order to establish the charge against the petitioner. The informant, Mayani Das, was examined as P W-1. P W 2 is the father of PW-1. The charge on being read over and explained to the peti­tioner, he pleaded not guilty and claimed to be tried. 5. During trial, the prosecution examined 6 (six) witnesses in order to establish the charge against the petitioner. The informant, Mayani Das, was examined as P W-1. P W 2 is the father of PW-1. P W 3 is the brother-in law of the accused petitioner, who deposed that she had no knowledge about the inci­dent. P W-4 is a house wife, who claimed that she did not know the informant and also she was not aware about the alleged occurrence. PW-5 is a nephew of the accused, who also expressed ignorance about the occurrence. PW-6 is the Investigating Officer of the case. 6. The learned Trial Court on considera­tion of the materials on record and after hear­ing the parties convicted the accused peti­tioner under Section 417 IPC by judgment dated 30.10.2002 in GR Case No. 835 of 2000 and resultantly, sentenced him to suffer rigorous imprisonment for one year. 7. Being aggrieved, the petitioner pre­ferred an. appeal before the learned Sessions Judge and the same was transferred to the Court of the learned Ad hoc Additional Ses­sions Judge, Karinganj, where the appeal was registered as Crl. Appeal No. 4(1) of 2003. The learned appellate Court modified the period of sentence by reducing the rigorous imprisonment for one year as imposed by the learned Trial Court, to rigorous imprisonment for 3(1hree) months, while maintaining the fine. 8. PW1, in her evidence, had stated that Rima Das, who brought her to the house of the petitioner as well Riman Das, after keep­ing her there, had left for Dibrugarh where he was working. She had also stated, that Ripak Das tried to get physical 'with" her by stating that he would marry her, but she did not agree, with the same. She further stated that, there­after, he had committed intercourse with her, as a result of which she becane pregnant and she was waiting in expectation to get married to him. She had informed about the pregnancy to the mother of Ripak Das and she com­forted her and about seven days later, when her father had gone there, she returned back to her own house. At the time of her depar­ture, Ripak Das had informed her that, he will marry her. She had informed about the pregnancy to the mother of Ripak Das and she com­forted her and about seven days later, when her father had gone there, she returned back to her own house. At the time of her depar­ture, Ripak Das had informed her that, he will marry her. He had also visited their residence aftersome days and had told her to be ready for the wedding. However, that was the last time he had visited their residence and he had never come back. Thereafter, she had in­formed the uncles of Ripak Das, namely, Ron and Jagadish, about the pregnancy, who as­suaged her feelings and asked her to go to the residence of Ripak Das. After much de­liberation she had gone to the residence of Ripak Das but the family members refused to accept her and on the contrary, had assaulted her. She came out of the residence and she having informed her father, her father came and picked her from the Railway Station at around 2:00/2:30 PM. A"Vichar" was held in the house of one Mr. Rana Das where the uncle of the accused told her to go for abor­tion and had offered a sum of Rs. 2000/-. She stated that she had delivered a male child in the house of her father. 9. In her cross- examination she had stated that she had gone to the residence of Ripak Das in the month of "Ashar" and she was there for about a month. She stated that he had committed sexual intercourse on her by promising her of marriage and such intercourse had started after 15/20 days from her arrival in the house of Ripak Das and she had inter­course for about 4/5 days. She admitted that she had told in her statement before the po­lice that as there was no decision in the Vichar, Ripak Das had refused to accept her as his wife. She had also admitted that she had not indicated in the ejahar as well as had not stated before the Police that Ripak Das had forcibly committed intercourse with her. She had also admitted that she had not stated in her state­ment before the police that she had informed the mother of Ripak Das as well as her father going to the residence of Ripak Das. She had also admitted that she had not stated in her state­ment before the police that she had informed the mother of Ripak Das as well as her father going to the residence of Ripak Das. She denied the suggestion that she had not ever stayed in the residence of Ripak Das and that she had no physical relationship with Ipak Das 10. PW-2, in his evidence, had stated that about 2 (two) years back, Mr. Riman Das had requested to allow him to take his daughter Mayarani to look after his sick mother as they are distant relatives and therefore, Mayarani was allowed to go with him. About fifteen days later, he went to take back his daughter and she, after arriving home, had informed him that on the assurance of marriage, there was sexual intercourse with her. When he went to Ripak's house and had disclosed the same, he was ill treated. Her daughter had also gone back to the residence of Ripak Das and there she was assaulted and such a situation, she had taken shelter in the Railway Station, where he met her at about 1.30 PM. That day, there was a "Vichar" in the resi­dence of Mr Rana Das and that another "Vichar" was held after a week later where the matter was sought to be closed on ac­ceptance of Rs. 2000/-. The same was not agreed upon and consequently, his daughter had filed the case. In his cross-examination, he had denied the suggestion that Mayarani was not taken to the residence of Ripak Das and that a false case has been registered about committing of sexual intercourse and preg­nancy. 11. As noted earlier, PW-3 denied any knowledge about the occurrence. Similarly, PW-4 denied to have known the complain­ant and she expressed complete ignorance about the alleged occurrence. PW-5 also stated that he did not know the complainant and that he was not aware of the occurence. PW-6 is the Investigating Officer of the case and he deposed about the steps taken during the investigation and filing of charge-sheet. 12. I have heard Mr. J. Das, learned coun­sel for the petitioner and Mr. K. Munir, learned Additional Public Prosecutor, Assam. 13. Mr. J. Das, learned counsel for the petitioner, submits that the prosecution has failed to prove, by adducing any independent witnesses, that the PW-1 had ever been taken to the residence of the petitior. 12. I have heard Mr. J. Das, learned coun­sel for the petitioner and Mr. K. Munir, learned Additional Public Prosecutor, Assam. 13. Mr. J. Das, learned counsel for the petitioner, submits that the prosecution has failed to prove, by adducing any independent witnesses, that the PW-1 had ever been taken to the residence of the petitior. Even other­wise, according to the learned counsel for the petitioner, mere failure to fulfil promise of marriage will not constitute an offence of cheating and there is no materials to indicate that from the very inception, the accused never intended to marry her. hi this connection, the learned counsel places reliance in the cases, of. Bipul Medhi & Ors. Vs. State of Assam, reported in 2006 (3) GLT 585 and Tajuddin Vs. State of Assam & Ors., reported in 2007 (1) GLT 206. The learned counsel submits that the finding of guilt recorded by the learned Courts below is not sustainable in law and the petitioner is entitled to an acquittal. Al­ternatively, .he has submitted that in the event of this Court not interfering with the finding of guilt as recorded by the Courts below, this Court may consider to give the petitioner the benefit of the provision of Probation of Of­fenders Act, 1958 and in this connection, he relies on the judgement passed in the case of Munindra Gazamer Vs. State of Assam reported in 2005 (3) GLT 380. 14. The learned Additional Public Pros­ecutor, on the other hand, submits that con­viction under Section 417 IPC can be main­tained if the prosecution proves the factum of deception which induced the prosecutrix to surrender to the accused which caused or is likely to cause damage or harm to her body, mind and reputation and that in the instant case, the prosecution having proved the ingredients of Section 415 IPC, the learned Courts be­low have rightly convicted the revision peti­tioner under Section 417 IPC. 15. A learned Single Judge of this Court, in Joleswar Kalita Vs. State of Assam reported in 1988 (1) GLR 128 , had taken a view that Section 415 did not apply to a case when a woman is made to surren­der her chastity to a man. who deceived her. 16. A Division Bench of this Court in Bipul Medhi & Ors. State of Assam reported in 1988 (1) GLR 128 , had taken a view that Section 415 did not apply to a case when a woman is made to surren­der her chastity to a man. who deceived her. 16. A Division Bench of this Court in Bipul Medhi & Ors. (supra) held that the decision in Joleswar Kalita (supra) is not a good, law and laid down that where the prosecution can establish the essential ingredients of cheating under Section 415 IPC, and where the ac­cused dishonestly induces the woman to have sexual intercourse with him on the basis of false promise to marry her, case, of simple cheating under Section 417 IPC can be held to have been made out. 17. In Tajuddin (supra),' a Division Bench of this Court held that to constitute the of­fence of cheating, the intentional inducement of the person must be proved and such inten­tion must be at the time of making promise or misrepresentation. Mere failure to keep the promise, without the intentional inducement at the time of making the promise or misrep­resentation, is not sufficient to prove the ex­istence of such intention from the very begin­ning and such intention can be. proved by existence of circumstances from which a rea­sonable inference to that effect car be drawn, inasmuch as there may not be direct evidence with regard to the factum of intention to deceive. 18. For proper appreciation, Sections 415 and 417 IPC are quoted below: "Section 415. Cheating - Whoever, by de­ceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intention­ally induces the person so deceived 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, is said to cheat". "Section 417. Punishment for cheating- Who­ever cheats shall be punished with imprisonment of either description for a term which may ex­tend to one year, or with fine, or with both". 19. "Section 417. Punishment for cheating- Who­ever cheats shall be punished with imprisonment of either description for a term which may ex­tend to one year, or with fine, or with both". 19. It is important to note that "consent" in positive terms has not been defined in the IPC Section 90IPC, however, amongst oth­ers, provides that a consent is not such a con­sent as is intended by any section of IPC, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reaso to believe, that the consent was given in con­sequence of such fear or misconception. For application of Section 90 IPC, in a case of this nature, two conditions are to be fulfilled. Firstly, it must be established that the consent was given under a misconception of fact and secondly, it must be poved that the person who obtained the consent, knew or had reason to believe that the consent was given in consequence of such misconception. The failure to keep a promise at a future un­certain date does not necessarily amount to a misconception of fact at the very inception of the act itself for fastening of criminal liability. It must also be proved that from the very in­ception, the accused never intended to marry her. In other vords, though a promise to marry without anything more may not give rise to a misconception of fact within the meaning of Sction 90 IPC, a false representation delib­erately made by the accused with a view to obtain consent of the woman without having at all intended to marry her will vitiate the consent, if any, given by the woman. 20. From the evidenc of PW-1, it appears that she did not agree to the proposition of Ripak to have intimacy on the promise that he would marry her. She, in categorical terms, both stated that she was not agreeable to the same. However, the evidence on record dis­closes that she had intercourse on 4/5 occa­sions with Ripak. From the evidence of P W-1, it also appears that there is no allegation of the petitioner forcefully committing sexual in­tercourse with her. It would appear that, if at all, the petitioner had consensual intercourse with the P W 1. However, the evidence on record dis­closes that she had intercourse on 4/5 occa­sions with Ripak. From the evidence of P W-1, it also appears that there is no allegation of the petitioner forcefully committing sexual in­tercourse with her. It would appear that, if at all, the petitioner had consensual intercourse with the P W 1. There is also no evidence to show that from the very beginning, assuming that the petitioner had promised to marry her, he did not really intend to marry her. Rather the version of the PW 1 is that even at the time of her departure, Ripak had told her that he would marry her and had also visited their" residence and had asked her to prepare for the wedding. 21. PWs- 3, 4 and 5 did not know any­thing about the occurrence. They did not even depose that the P W-1 had come to the resi­dence of the petitioner at the request of Riman Das. PW 4 and 5 went one step further and stated that they did not even know P W1. They are not even declared hostile witnesses. Apart from the evidence of P W-2 and P W-1, there is no other evidence to corroborate their tes­timony. The FIR was lodged on 05.09.2000, and in the ejahar, PW1 had stated that she was pregnant for two months. Though the ejahar and the evidence of PW-1 and PW-2 disclose that there was a "Vichar" in the resi­dence of one Rana Das, in presence of vil­lage elders, neither Rana Das nor any other member participating in "Vichar" was exam­ined. In view of the categorical version of PWs-3, 4 and 5, it was incumbent for the prosecution to have examined some witnesses to lend credence to the prosecution case.The learned Trial Court had recorded a perverse rinding that defhce side had admitted that the informant was in the house of the accused. 22. On consideration of the evidence on record, this Court is of the opinion that the prosecution has not been able to prove the case against the petitioner beyond rea­sonable doubt. 23. 22. On consideration of the evidence on record, this Court is of the opinion that the prosecution has not been able to prove the case against the petitioner beyond rea­sonable doubt. 23. In that view of the matter, the impugned judgment and order dated 10.02.2004 passed by the learned Ad hoc Additional Sessions Judge, Karimganj, in Criminal Apeal No.4(1) 2003 and judgement and order dated 30.12.2002 passed by the learned Ju­dicial Magistrate, 1st Class, Karimanj, in G.R. Case No. 835 of 2000, are set aside and quashed. 24. The Revision is allowed. The petitioner acquitted of the offence under Section 415 IPC. Bail bond slants discharged. 25. Registry is directed to send back the LCR.