JUDGMENT : (Prayer: Petition filed under Section 397 read with 401 of the Criminal Procedure Code, to call for the records relating to the conviction imposed in the judgment dated 10.08.2017 made in C.A.No.20 of 2017 on the file of the learned Sessions (Fast Track Mahila) Court, Namakkal, confirming the conviction imposed in the judgment dated 28.04.2017 made in C.C.No.236 of 2005 on the file of the learned Judicial Magistrate No.1, Namakkal and set aside the same.) 1. The matter is heard through “Video Conference”. 2. Convicted sole accused is the revision petitioner herein. He was convicted for the offence under Section 406 and 420 of IPC by the learned Magistrate, on dismissal of the appeal, he preferred the revision. 3. The case of the prosecution is that (i) on 16.03.1997, the accused started a dairy at Thalambadi and the witnesses Raja, Vaithi, Govindaraj, Sengodan and Kannan were sold milk to the accused from 16.03.1997 onwards. The accused paid them a part of amount and there was a due to sum of Rs.7,50,000/- to Raja, Rs.40,000/- to Vaithi, Rs.25,000/- to Govindaraj, Rs.37,329 to Sengodan and Rs.1,00,000/- to Kannan. When the above witnesses demanded for the balance the accused refused to pay the same. Thus, the accused had received the amount of Rs.9,52,329/- and thereby committed offences punishable under Section 406, 420 IPC. Hence, the charge. 4. Mr.N.Manokaran, the learned counsel for the revision petitioner would contend that the trial Magistrate has committed an error, treating the submissions of the accused-advocate in the bail order as an admission and laid the conviction and the same is unknown to criminal procedure. There is an inordinate delay of five years in preferring the complaint. 5. In the absence of any positive evidence for alleged supply of milk and non payment thereof, the charge sheet itself is bad in law. The particulars of date of supply and quantity of the milk and an amount there for, was not spoken to by any on of the witnesses and hence, the order of the conviction and sentence of the lower Court, is bad in law. 6. The learned Government Advocate for the respondent made a submission in support of the judgment of the trial Court. 7. The point for consideration is whether the order of conviction under Section 406 and 420 of IPC is sustainable in law. 6. The learned Government Advocate for the respondent made a submission in support of the judgment of the trial Court. 7. The point for consideration is whether the order of conviction under Section 406 and 420 of IPC is sustainable in law. The minutes of the prosecution case points are detailed thereof: 7(i) On the side of the prosecution P.W.1 to P.W.10 witnesses were examined and six documents were marked as Exs.P1 to P6 were marked. 7(ii) P.W.1/Raja, P.W.2/Govindaraj, P.W.3/Kannan, P.W.7/Vaithi, P.W.8/Sengodan, were on the request of accused supply milk to his dairy farm. At the beginning, the accused paid amount once in a week but later he stopped payment. P.W.1 obtained loan from P.W.4/Elango, P.W.5/Kandasamy, to clear the payment to the person who gave milk to him. The P.W.6/Nallathambi is one among the milk vendor to P.W.1. P.W.4 to P.W.6 knows that the P.W.1 demanded the balance amount from the accused for which, he refused to pay. P.W.9/Manickam, is the Head Constable, District Crime Branch, received the complaint through Superintendent of Police and registered a case in Crime No.57/2004 under Section 406 and 420 of IPC. P.W.10/Ponusamy, Sub Inspector of Police, investigated the matter and arrested the accused and laid charge sheet against the accused. 8. The trial Court has laid the conviction based upon the observation made in the bail order dated 29.12.2004 in Crl.M.P.No.6685/2004 and held that it is a candid admission and laid the conviction. On appeal, the appellate Court dismissed it. At the outset, this Court unable to subscribe the seal of approval, as to the manner, how the learned Judicial Magistrate has accepted the averment made by the accused-advocate, in the bail order, as candid admission. Any observation or finding in the Crl.M.P., for bail, cannot be a ground for conviction. 9. The representation made by the learned counsel for the accused in the bail petition, cannot be an admissible representation in respect of the accused, in the trial. Accordingly, the finding recorded by both the Courts below on the ground of the averments made by the accused-advocate, in the bail application for the conviction is set aside and stands vacated. Thus, it has become incumbent on this Court to extract the evidence on record that are relevant for the determination of this case: 10. P.W.1 in the cross examination has stated that “TAMIL” 11. Thus, it has become incumbent on this Court to extract the evidence on record that are relevant for the determination of this case: 10. P.W.1 in the cross examination has stated that “TAMIL” 11. In the cross examination, it is stated as follows:- “TAMIL” 12. P.W.2 is projected as one of the person, who had supplied milk and alleged that the accused has not settled his bill, which he has stated that: “TAMIL” 13. Hence, no document for the alleged claim of P.W.2 was handed over to the police. P.W.3/Kannan, in the cross examination has stated as follows: “TAMIL” 14. P.W.4/Elango and P.W.5/Kandasamy and P.W.7/Vaithi, in their cross examination, have admitted that: “TAMIL” 15. In short, he has failed to produce any receipt. Though, he had the receipt and not handed over the receipt to the investigation officer. P.W.8 who is projected to have cheated to the tune of Rs.37,329/-, in the cross examination, had admitted that: “TAMIL” 16. The Investigation officer/P.W.9, in the cross examination, has admitted that: “TAMIL” 17. P.W.10/Investigation Officer, who has laid the final report has admitted in the cross examination that: “TAMIL” 18. Thus, this Court finds that all is not well with the prosecution witnesses, in view of the answer elicited in the cross examination of the prosecution witnesses as extracted supra. 19. Admittedly, none of the prosecution witnesses who claimed to have supplied milk to the accused, though had a receipts had never handed over those receipts to the investigation officer and come forward with the lame excuses to cover up the alleged non payment. As per the admission of P.W.1, the due has become from 31.10.1999, and thereafter, he has stopped the supply of the milk. However, he has chosen to give the complaint only on 26.11.2004, namely after five years of the alleged non payment. The delay of five years in preferring the complaint was not explained either by P.W.1 or P.W.9 and P.W.10/Investigation officers. 20. Furthermore, none of the alleged suppliers of milk namely P.W.1, P.W.2, P.W.3 or P.W.8, have not produced any document to show for the alleged supply of milk. Though, P.W.7 and P.W.8 would state that they had the documents, which they have misused it. P.W.2, P.W.3 and P.W.4, admitted that they have not handed over the receipt for the supply of milk to the investigation officer. Though, P.W.7 and P.W.8 would state that they had the documents, which they have misused it. P.W.2, P.W.3 and P.W.4, admitted that they have not handed over the receipt for the supply of milk to the investigation officer. The investigation officer also admitted that as extracted supra, Exs.P2, P3 and P4, are not on the letter pad or without any seal as that of the accused. He has admitted that the same can be produced at any computer shop. Neither P.W.2 nor P.W.3, P.W.4 and P.W.5 gave any complaint regarding non payment for the alleged milk supplied to the accused. 21. In Ex.P4, the name of P.W.3/Kannan, was returned by the accused as admitted by him and hence, I find that Exs.P2, P3, P4 and P5 and other documents in support of the alleged non payment appears to be tampered by the investigation officer and hence, the same lacks credibility as to the genuineness. P.W.8, in the cross examination has categorically admitted that the four bills in Ex.P5, Sengodan name has been written by someone else that also create serious doubt, as to the truth and genuinity of Ex.P5. The answer elicited in the cross examination of P.W.7 that he had misplaced the receipt issued to him by the accused he has not handed over the same. 22. However, P.W.1 has marked certain documents projecting that the claim of P.W.7 is also not settled cause serious doubt as to the Ex.P2 series, marked through P.W.1 and hence, I find that there is tampering of prosecution documents. 23. In view of the admission of investigation officer, P.W.9 and P.W.10 regarding Exs.P2, P3, P4, and P5, it caused serious doubt in the mind of this Court, as to the genuinety and reliability. 24. In view of the answer elicited in the cross examination, I find that there is an inordinate delay of five years in preferring Ex.P1-complaint. It is a specific case of the prosecution that totally a sum of Rs.10,01,102/- out of which, Rs.2,60,200/- was said to have been settled and hence, there is an alleged balance of Rs.7,40,902/-. Admittedly, none of the witnesses satisfy the criteria that he had intention to cheat at the very beginning. 25. From the answer elicited in the cross examination, I find that the entire transactions between the parties appears to be civil in nature. However, they have given a criminal color. Admittedly, none of the witnesses satisfy the criteria that he had intention to cheat at the very beginning. 25. From the answer elicited in the cross examination, I find that the entire transactions between the parties appears to be civil in nature. However, they have given a criminal color. The dispute between them is undergone mutual obligation, even if be ignore the admission made by the parties, it constitutes the remedy only before the civil Court. Ex.P1 complaint was given after five years, after the lapse of period of limitation, before civil Court forum and hence, I find that the complaint/Ex.P.1 given by P.W.1 is an attempt to use the mechanism of the criminal Court for private gain, unjust and unwanted pressure on the petitioner. 26. At the risk of repetition, for the sake of clarity, as per the prosecution case, P.W.1 to P.W.3, P.W.7 and P.W.8, have supplied milk to the petitioner and the accused failed to repay the amount. Both the Courts below have committed a blunder in relying upon the observation made in bail order dated 29.12.2004 in Crl.M.P.No.6685/2004, by misconstruing it as admission against the petitioner. 27. On observation and finding made in the bail order, cannot be any basis for conviction of an accused. Both the Courts below have failed to observe the settled position and laid the conviction, there is an inordinate delay and latches on the part of the complaint of five years for the alleged offence under Section 406 and 420 of IPC. 28. In order to attract Section 406 and 420 IPC, the prosecution should satisfy the ingredients of Sections 405 and 415 IPC. “To deceive” is to induce a man to believe that “a thing is true which is false” and which the person practicing the deceit knows or believes to be false in decision reported in (2001) 3 SCC 513 (Alpic Finance Ltd., Vs. P.Sadasivan and Another). Even, as per the prosecution case, the petitioner has failed to discharge his obligation. In the complaint, there is no allegation that there was a dishonest inducement on the part of the petitioner and thereby he parted with the goods or properties. Every breach of promise would not give raise to an offence of cheating and only in those case, breach of promise would amount to cheating where there was any deception played at the very inception. Every breach of promise would not give raise to an offence of cheating and only in those case, breach of promise would amount to cheating where there was any deception played at the very inception. If the intention to cheat is developed later on, the same cannot amount to cheating in the decision reported in (2005) 10 SCC 336 (Uma Shankar Gopalika Vs. State of Bihar and Another). 29. As per the prosecution case, the complainant supplied milk to the accused but failed to pay the price there for. There is no evidence to show that at the very inception of the transaction between the parties, there was any intention to cheat. In order to attract Section 405 and 415 IPC, the accused should have intention at the time of inducement. The subsequent conduct is not the sole test. Mere breach of promise cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction, in the decision reported in (2005) 10 SCC 228 (Anil Mahajan Vs. Bhor Industries Ltd., and Another) and hence, I find that the order of conviction passed by both the Courts below is totally unsustainable in law and the same is liable to be set aside. 30. In the result, the criminal revision case is allowed. The conviction and sentence as against the petitioner/accused in the judgment dated 10.08.2017 in C.A.No.20 of 2017 passed by the learned Sessions Judge, Namakkal, is set aside. The petitioner is acquitted from the charges under Sections 406 and 420 of IPC. The fine amount, if any, paid by the petitioner/accused is ordered to be refunded to him. The bail bonds executed by him, shall stand terminated/discharged.