JUDGMENT & ORDER By means of this revision petition the judgment and order dated 28.05.2014 delivered in Criminal Appeal No.25(2)/2013 by the Sessions Judge, West Tripura, Agartala, has been challenged by the convict. By the said judgment dated 28.05.2014, the judgment dated 26.04.2013 delivered in CR 1406 convicting the petitioner under Section 420 of the IPC has been affirmed. Thus, the finding of conviction and the order sentencing the petitioner to suffer RI for 2 years and to pay a fine of Rs. 50,000/, in default to suffer RI for further six months have been sustained on reappreciation. 2. The complainant Smt. Gouri Sarkar took a room on rent from the petitioner in the year 2000 situated at Akhaura Road, Agartala and started her business in electronic goods. When the said room fell in the share of the brother of the petitioner in the exercise to partition the joint property, according to the complainant the petitioner approached her in the month of June 2002 for selling the room adjoining the earlier rented room. The proposal as communicated was accepted by the complainant and the consideration was settled as Rs.2,80,000/. An agreement for sale was executed on 19.06.2002 on paying the earnest money of Rs.60,000/in cash. It was further agreed that a sum of Rs.80,000/paid earlier by the complainant to the petitioner in connection with the rent of the room in the year 2000 shall also be the part of the earnest money for the proposed purchase of another shop. Thus, an amount of Rs.1,40,000/was paid and it was further agreed that the balance amount of Rs.1,40,000/would be paid within a year from the date of execution of the agreement to sale. Accordingly, the complainant prepared herself for payment of the balance amount within the stipulated time but according to the complainant the petitioner deferred accepting the balance of the consideration amount on different pleas. However, the petitioner received Rs.10,000/and Rs.5,000/from the complainant on 25.08.2003 and 20.08.2004 respectively within the terms of the agreement dated 19.06.2000. Ultimately, on 02.06.2005, the petitioner executed the sale deed in favour of the complainant. In the sale deed, the sale amount was however was mentioned as Rs.1,15,000/as per the Government rate. However, the petitioner received Rs.10,000/and Rs.5,000/from the complainant on 25.08.2003 and 20.08.2004 respectively within the terms of the agreement dated 19.06.2000. Ultimately, on 02.06.2005, the petitioner executed the sale deed in favour of the complainant. In the sale deed, the sale amount was however was mentioned as Rs.1,15,000/as per the Government rate. On the day of execution of the sale deed, the petitioner assured that he would shortly vacate the premises but on 28.06.2005, the complainant received a notice from the court of the Civil Judge, Junior Division, Agartala in connection with Misc. Case No.55 of 2005 arising out of TS 77 of 2005. From the notice, the complainant could gather that the petitioner entered into an unregistered tenancy agreement with Basana Roy and Pranab Kanti Sarkar on 15.12.2004 for a period of 5 years w.e.f. 01.01.2005 receiving an advance of Rs.50,000/. The complainant has stated that the petitioner has cheated her for the second time when on 02.06.2005 he executed the sale deed in her favour receiving the balance payment of Rs.1,40,000/. In that background, the complainant filed the complaint for taking cognizance under Section 420 of the IPC. 3. On taking cognizance, the Court of the Chief Judicial Magistrate, West Tripura, Agartala proceeded to record evidence before framing of the charge and after framing of the charge. As stated, the charge was framed under Section 420 of the IPC against the petitioner, to which he pleaded innocence and claimed to face the trial. From the crossexamination it appeared, as recorded by the appellate court, that in the money receipt relating to the payment, the signature of the petitioner was taken on a blank paper and later on it was given the shape of the money receipt. 4. To substantiate the charge, the complainant adduced as many as three witnesses including herself and adduced five documentary evidence including the Exbt.4 series and Exbt.1 and Exbt.A series [the agreement to sale]. Having recorded the evidence of the prosecution, the petitioner was examined under Section 313 of the Cr.P.C. where he repeated his plea of innocence and contended that he had been falsely implicated. By the judgment dated 26.04.2013 the petitioner is held guilty of committing offence punishable under Section 420 of the IPC and accordingly he has been sentenced. Having recorded the evidence of the prosecution, the petitioner was examined under Section 313 of the Cr.P.C. where he repeated his plea of innocence and contended that he had been falsely implicated. By the judgment dated 26.04.2013 the petitioner is held guilty of committing offence punishable under Section 420 of the IPC and accordingly he has been sentenced. For returning the finding of conviction, the trial court has observed in the judgment dated 26.04.2013 as under: “To prove the charge under Section 420 of the IPC the prosecution/complainant should prove the following ingredients– “(i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property or; (b) the person deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived (ii)(b) the act of omission should be one which cause or is likely to cause damage or harm to the person induced in body, mind, reputation or property”. 5. Here, in this case in the year 2002 the accused approached the complainant to sell his 171 sq. feet of land including ‘dokan viti’ within his share and the consideration money was fixed at Rs.2,80,000/on negotiation and after that agreement for sale was made on 19.06.2005 and it was agreed that the deed of sale would be executed within a short span of time, even though on different occasions, the accused received money from the complainant but denied to execute the said deed and ultimately on 02.06.2005 he executed a registered sale deed in favour of the complainant. When the complainant came to know that the accused already leased out the said premises demised in the sale deed to the third party who filed a civil suit against the present complainant and others, she filed the complaint in the court. 6. To substantiate the charge, the complainant and her two witnesses were adduced in this case and they were duly crossexamined by the accused person. 6. To substantiate the charge, the complainant and her two witnesses were adduced in this case and they were duly crossexamined by the accused person. From the trend of crossexamination, it appears that the accused could not dent her evidence to make it unreliable for the fact that he did not execute any sale deed in favour of the complainant within time and the fact of receiving the money on different occasions from the complainant and further, the fact of leasing out of the said disputed land in question to the third party who sought relief before the civil court against the complainant. Even, injunction restraining from interfering with the possession was granted. Thus, it evinces that the accused knowing fully the fact that he had leased out the land and building in question to some other persons executed the sale deed in favour of the complainant and received the remainder of consideration money. The accused deceived and cheated the complainant and in the premises as narrated above, the accused person committed the offence punishable under Section 420 of the IPC. 7. The said finding has been affirmed by the impugned judgment dated 28.05.2014. Hence, the petitioner by way of this revision petition has challenged the said judgment and order dated 28.05.2014. 8. Mr. S. Lodh, learned counsel appearing for the petitioner has submitted that the provisions of Section 420 of the IPC have been misconstrued both by the trial court and the appellate court. According to him, there is no evidence of deception. Even proving deception is not enough. The person who has allegedly been deceived should be induced to do or omit to do anything which he would not do or omit, if he were not so deceived. The act of omission should be one which causes or which is likely to cause damage or harm to the person induced in body, mind, reputation or property. Mr. Lodh, learned counsel has referred to the testimony of the complainant where she has stated that in terms of the agreement dated 19.06.2002 on 02.06.2005, the petitioner executed the sale deed in favour of the complainant. Only after registration of the sale deed, the complainant came to know that Basana Roy and Pranab Kanti Sarkar in terms of the tenancy agreement dated 15.12.2004 was inducted in the said property as demised in the sale deed. Only after registration of the sale deed, the complainant came to know that Basana Roy and Pranab Kanti Sarkar in terms of the tenancy agreement dated 15.12.2004 was inducted in the said property as demised in the sale deed. The complainant has stated, as referred to by Mr. Lodh, learned counsel, that though the sale was executed on 02.06.2005, she could not take the possession as the possession was already with those tenants. Mr. Lodh, learned counsel has pointed out that the complainant has stated in the trial as under: “Accused has executed sale deed suppressing the actual fact that he has already entered into a tenancy agreement with others. Accused has received full consideration of the purchased land making false promise considering the truth and thereby cheated me. If I could realize the intention of the accused I would not entered into an agreement with the accused to purchase the land from the accused.” 9. The complainant has stated in her evidence before the charge that after the registration, the accused had assured that he would hand over the possession after a week, as he had some goods inside the shop, but the accused did not handover the possession of the shop as assured to the complainant. In the crossexamination after the charge, the complainant has stated as under: “My son earlier hired a room from Samir Roy as monthly rent basis and later on my son purchased said Dokan Viti from Samir Roy in lieu of consideration money. I could not say the actual quantum of land within the said Dokan viti before purchase of the same by my son from Samir Roy. The adjacent shop which I have purchased there is another shop under ownership of said Samir Roy. The shopkeeper of that adjacent shop has filed a civil suit against me, as alleged by the accused of this case. I have contested the suit and filed the written statement. Before the Civil Court I made deposition on 27.4.06 and stated that prior to hire that shop on monthly rent basis by my son. There was one Roy varieties adjacent of the said dokan Viti.” 10. When, PW1, the complainant was confronted with a question that since she was running a business for four years in that adjacent shop and she purchased the disputed plot knowing fully well about its status, PW1 denied the said suggestion. There was one Roy varieties adjacent of the said dokan Viti.” 10. When, PW1, the complainant was confronted with a question that since she was running a business for four years in that adjacent shop and she purchased the disputed plot knowing fully well about its status, PW1 denied the said suggestion. PW 1 has stated that it was agreed that from the date of execution of the agreement i.e. 19.06.2002 the balance consideration money shall be paid within one year. It appears that there is no statement that within one year the complainant intended to pay the balance consideration money. However, she has stated that on different occasions she paid various quantities of money till 01.05.2005 i.e. much after the date for payment of the balance consideration money. Finally, on 27.05.2006 she paid a sum of Rs.50,000/by cheque and another sum of Rs.50,000/by cheque on the day of execution of the sale deed i.e. 02.06.2005. After registration, the petitioner had allegedly stated that he would hand over the possession within a short while as he had kept some goods inside the shop but the petitioner did not handover the possession. Meanwhile, they received the notice from the Civil Court in a suit for injunction. The complainant has submitted a photocopy of the rental agreement entered into between the petitioner and one Smt. Basana Roy and another on 15.12.2004. Thus, it has been claimed that the accused has deceived the complainant. In the crossexamination after the charge the complainant has admitted that adjacent to the shop which she purchased, there is another shop under the ownership of the petitioner and her son earlier hired that from the petitioner on monthly rent and later on her son purchased the said shop from the petitioner. The complainant has categorically stated in the said crossexamination: “My son started his business on the disputed dokan viti in the year 2000. At the time of opening ceremony I went to the shop of my son and I have found another adjacent shop namely Roy Varieties. Said shop was belonging to Samir Roy.” PW3 Abani Mohan Sarkar husband of the complainant corroborated the statement of PW 1. He has also stated in the trial that adjacent to the shop of his son there was another chala ghar under the ownership of Samir Roy. PW3 has stated that the said suit has been dismissed. Said shop was belonging to Samir Roy.” PW3 Abani Mohan Sarkar husband of the complainant corroborated the statement of PW 1. He has also stated in the trial that adjacent to the shop of his son there was another chala ghar under the ownership of Samir Roy. PW3 has stated that the said suit has been dismissed. PW 2 however, is a formal witness who attested the sale deed dated 02.06.2005. 11. After examining the petitioner under Section 313 of the Cr.P.C. and on appreciation of the evidence as recorded by the trial court, by the judgment dated 26.04.2013 it has been observed as under: “To prove the charge under Section 420 of the IPC the prosecution/complainant should prove the following ingredients– “(i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property or; (b) the person deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived (ii) (b) the act of omission should be one which cause or is likely to cause damage or harm to the person induced in body, mind reputation or property”. Herein this case the case of the complainant as that in the year, 2002 the accused approached the complainant to sell his 171 sp. Feet of land including dokan viti from his parental share and accordingly consideration money was fixed at Rs.,80,000/and after that agreement for sale was made on 19/06/2005 and it was agreed to execute the deed within a short span of time but on different occasion the accused received money from the complainant and denied to execute deed and ultimately on 02/06/2005 he executed a registered sale deed in favour of the complainant when the complainant came to know that the accused already leased out the said suit premises to a 3rd person who filed a Civil Suit against the present complainant and others. To substantiate the charge the complainant and her two witnesses were adduced in this case and they were duly crossexamined by the accused person. To substantiate the charge the complainant and her two witnesses were adduced in this case and they were duly crossexamined by the accused person. From the trend of crossexamination it appears that the accused could not discard their evidence to disbelieve the evidence of the complainant to the fact that he did not execute any sale deed in favour of the complainant and also the fact of receipt of consideration money by him on different occasion from the complainant and also the fact of leasing out of the said disputed land in question to a 3rd person who sought relief before the Civil Court against the present complainant of this case and injunction was granted. Thus from the discussion made above and also on perusal of the exhibited documents it appears to me that the accused knowing fully the fact that he has leased out the disputed land in question to some other person executed a sale deed in favour of the complainant of this case and received consideration money and thus dishonestly deceived and cheated the complainant and thereby the accused person has committed the offence punishable under Section 420 of the IPC. Thus the aforesaid point is answered in favour of the complainant.” 12. The petitioner has been sentenced to suffer rigorous imprisonment for 2 (two) years with fine of Rs.15,000/in default to undergo further RI for a period of 6 months for committing offence punishable under Section 420 of the IPC. 13. Being aggrieved, the petitioner filed an appeal under Section 374(3) of the Cr.P.C. being Criminal Appeal No. 25(2) of 2013 which has been dismissed by the impugned judgment dated 28.05.2014 observing that: “None having appeared for the appellant, the responsibility of the appellate court is doubled so far as the scrutiny of the impugned judgment is concerned. Accordingly, I have closely gone through the crossexamination of the complainant and her two witnesses. In the impugned judgment, at para 4, it is discussed in details as to how the charge under Section 420 I.P.C. is proved against the appellant.” 14. Mr. Accordingly, I have closely gone through the crossexamination of the complainant and her two witnesses. In the impugned judgment, at para 4, it is discussed in details as to how the charge under Section 420 I.P.C. is proved against the appellant.” 14. Mr. B. N. Majumder, learned counsel appearing for the complainant has submitted that the prosecution (the complainant) has established the charge beyond reasonable doubt that at the time of execution of the sale deed, the petitioner by suppressing that he had inducted the tenants for a tenure of 5 years caused inducement with intent to cheat the complainant and thereafter failed to deliver the vacant possession and thus the trial court has correctly held that the petitioner has committed the offence punishable under Section 420 of the IPC. 15. Having scrutinized the records and on appreciation of the submission advanced by the learned counsel, the questions those emerged for response from this court are: (1) whether the appellate court can dismiss an appeal without representation from the appellant on merit? (2) whether there was any inducement at the time when agreement to sale of the referred property was entered between the petitioner and the complainant and (3) whether the so called suppression could be beyond the knowledge of the complainant or whether there is any inducement at all? 16. The apex court in Mohd. Sukur Ali v. State of Assam reported in (2011) 4 SCC 729 has held that in the absence of a counsel, for whatever reason, the case should not be decided forthwith against the accused but in such a situation, the court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him on the foundation of the following analogy: “We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights. In our opinion, a criminal case should not be decided against the accused in the absence of a counsel. We are fortified in the view by a decision of the US Supreme Court in Powell Vs. Alabama, 287 US 45 (1932), in which it was observed: "What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense". 17. The above decision of the US Supreme Court has been cited with approval in A.S. Mohammed Rafi Vs. State of Tamil Nadu & Ors. 17. The above decision of the US Supreme Court has been cited with approval in A.S. Mohammed Rafi Vs. State of Tamil Nadu & Ors. reported in AIR 2011 SC 308 . 18. A similar view was also taken by the apex court in Man Singh & Anr. vs. State of Madhya Pradesh reported in (2008) 9 SCC 542 and in Bapu Limbaji Kamble Vs. State of Maharashtra reported in (2005) 11 SC 412. 19. In this connection we may refer to Articles 21 and 22(1) of the Constitution. Articles 21 and Articles 22(1) provide as under : "Article 21. Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law". “Article 22(1). Protection against arrest and detention in certain cases. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice." 20. In Maneka Gandhi vs. Union of India reported in AIR 1978 SC 597 , it has been held by a Constitution Bench of the apex court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. It is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution. It has been held thus in Md. Sukur Ali (supra). The right to appear through the counsel has existed in England for over three centuries. In ancient Rome, there were great lawyers e.g. Cicero, Scaevola, Crassus, etc. who defended the accused. In fact, the higher the human race has progressed in civilization, the clearer and stronger has that right appeared, and the more firmly has it been held and asserted. Even in the Nuremberg trials, the Nazi war criminals, responsible for killing millions of persons, were yet provided counsel. who defended the accused. In fact, the higher the human race has progressed in civilization, the clearer and stronger has that right appeared, and the more firmly has it been held and asserted. Even in the Nuremberg trials, the Nazi war criminals, responsible for killing millions of persons, were yet provided counsel. Therefore, when we say that the accused should be provided counsel we are not bringing into existence a new principle but simply recognizing what already existed and which civilized people have long enjoyed. 21. Apart from the above, in Md. Sukur Ali (supra) the observation of the eminent jurist Seervai made in his ‘Constitutional Law of India' [Third Edition, Vol. I, Page 857] has been approvingly quoted. Let us also reproduce the same for some more light on the point. "The right to be defended by counsel does not appear to have been stressed, and was clearly not considered in any detail in Ajaib Singh's case (1953) SCR 254. But the right of a person accused of an offence, or against whom any proceedings were taken under the Cr.P.C. is a valuable right which was recognized by Section 340 Cr.P.C. Article 22 (1) on its language makes that right a constitutional right, and unless there are compelling reasons, Article 22 (1) ought not to be cut down by judicial construction........ It is submitted that Article 22 (1) makes the statutory right under Section 340 Cr.P.C. a Constitutional right in respect of criminal or quasi criminal proceedings." We are fully in agreement with Mr. Seervai regarding his above observations. The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long period under the formula `Na vakeel, na daleel, na appeal' (No lawyer, no hearing, no appeal). Many of them were lawyers by profession, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22 (1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers. In this connection, we may also refer to the ringing speech of Rt. It was for this reason that they provided for assistance by counsel under Article 22 (1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers. In this connection, we may also refer to the ringing speech of Rt. Hon. Srinivasa Sastri, speaking in the Imperial Legislative Council, at the introduction of the Rowlatt Bill, Feb 7, 1919 (the Rowlatt Act prohibited counsels to appear for the accused in cases under the Act): "When Government undertakes a repressive policy, the innocent are not safe. Men like me would not be considered innocent. The innocent then is he who forswears politics, who takes no part in the public movements of the times, who retires into his house, mumbles his prayers, pays his taxes, and salaams all the government officials all round. The man who interferes in politics, the man who goes about collecting money for any public purpose, the man who addresses a public meeting, then becomes a suspect. I am always on the borderland and I, therefore, for personal reasons, if for nothing else, undertake to say that the possession, in the hands of the Executive, of powers of this drastic nature will not hurt only the wicked. It will hurt the good as well as the bad, and there will be such a lowering of public spirit, there will be such a lowering of the political tone in the country, that all your talk of responsible government will be mere mockery.” ********************* “Much better that a few rascals should walk abroad than that the honest man should be obliged for fear of the law of the land to remain shut up in his house, to refrain from the activities which it is in his nature to indulge in, to abstain from all political and public work merely because there is a dreadful law in the land.” In Gideon vs Wainwright, 372 US 335 (1963) Mr. Justice Hugo Black of the US Supreme Court delivering the unanimous judgment of the Court observed: "Lawyers in criminal courts are necessities, not luxuries" In Brewer vs William, 430 US 387 (1977) Mr Justice Stewart delivering the opinion of the US Supreme Court observed: "The pressures on state executive and judicial officers charged with the administration of the criminal law are great. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all." 22. In view of the law as enunciated and approved by the apex court this court would have without a blink quashed the impugned judgment as the same has been passed in absence of the counsel of the accused and even in absence of the accused himself. But that process would protract the life of the litigation. Keeping this perspective in view, this court have heard the learned counsel much elaborately and scanned every bit of documents as produced by the prosecution. There surfaces that the sale deed dated 02.06.2005 which has been admitted by the petitioner is in pursuance to the agreement, though that has not been recorded in the sale deed, but it is the consistent case of the complainant as proved. The complainant nowhere stated that at the time of entering in the said contract to sale the petitioner had any intention to deceive the complainant and pursuant to that the petitioner had induced the complainant to enter into the agreement and make payment of the consideration money. What has further surfaced that in the sale deed dated 02.06.2005, there is no promise to handover the possession to the vendor within a week and no collateral agreement has been proved by the complainant. That apart, both the complainant (PW1) and her husband (PW3) have stated in unison that their son has a shop just adjacent to the disputed shop. Thus, it is quite improbable not to know that whether the shop that the complainant was purchasing was vacant or under possession of any other persons. Thus, this court is of the view that during or after execution of the sale deed there was no inducement from the petitioner to deceive the complainant. Even if there was any promise by the petitioner after the sale deed was executed there is no evidence to hold that such promise was preceded by intention to deceive the complainant. It is well settled that mere breach of agreement does not constitute deception or cheating. Even if there was any promise by the petitioner after the sale deed was executed there is no evidence to hold that such promise was preceded by intention to deceive the complainant. It is well settled that mere breach of agreement does not constitute deception or cheating. For establishing those elements it has to be proved that the transaction was preceded by intention of the accused for deception and inducement was made dishonestly to deliver any valuable property and if deception was not there the person who delivered the property would not have delivered the said property. However, it is not necessary that the deception should be by express words but it may be inferred from the conduct or may it be presumed from in the nature of the transaction itself. Even no such allegation has been made by the complainant that she had realised from the conduct of the petitioner that he had in mind to deceive her. In Uma Shankar Gopalka vs. State of Bihar reported in (2006) 2 SCC (Cri) 49 the apex court has laid down the law that every breach of contract would not give rise to an offence of cheating and only in those cases, breach of contract would amount to cheating, where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In Hridaya Ranjan Prasad Verma v. State of Bihar reported in (2000) 4 SCC 168 the apex court has held as under: “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. 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.” 23. There is no evidence, as stated above, that after execution the petitioner made any promise of handing over the possession. On scrutiny of the sale deed it appears that the sale deed is strangely silent over the handing over the physical possession. The word ‘to possess’ also includes ‘to possess constructively’. There is no such allegation against the petitioner that at the time of entering into the contract to sale dated 19.06.2002, the petitioner had any fraudulent or dishonest intention. In absence of any fraudulent or dishonest intention at the beginning or when such promise has been made it cannot be held that the person is guilty of the cheating. In International Advanced Research Centre for Power Metallurgy and New Materials (ARCI) and others vs. NIMRA Cerglass Technics (P) Ltd. and another reported in (2015) AIR SCW 5432 the apex court has reiterated the law as under: “20. By analysis of terms and conditions of the agreement between the parties, the dispute between the parties appears to be purely of civil nature. It is settled legal proposition that criminal liability should not be imposed in disputes of civil nature. In Anil Mahajan v. Bhor Industries Ltd. & Anr. (2005) 10 SCC 228 , this Court held as under: “6. ……….. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction.” 24. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction.” 24. Having held so this court is of the considered opinion that the impugned judgment affirming the judgment of conviction returned by the trial court is liable to be interfered with and accordingly it is interfered with inasmuch as fraudulent and dishonest intention to deceive the complainant at the beginning has not been proved beyond reasonable doubt, hence the impugned judgment is quashed. The petitioner is acquitted from the charge under Section 420 of the IPC on benefit of doubt. In the result, this petition stands allowed. Sureties are discharged from their obligation. Send down the LCRs forthwith.