JUDGMENT : SUBHASH CHAND, J. 1. The instant criminal revision has been directed against the judgment dated 29.02.2016 passed by the learned Additional Sessions Judge-I, Saraikella in Criminal Appeal No. 94 of 2013 whereby and whereunder while dismissing the appeal upheld the judgment of conviction and sentence dated 12.06.2013 passed by the learned Chief Judicial Magistrate, Saraikela in G.R. Case No. 520 of 2009 (T.R. No. 910 of 2013) convicting the petitioner under section 420 of the Indian Penal Code and sentencing him with rigorous imprisonment for 2 years alongwith fine of Rs.1,000/- and in default of payment of fine further simple imprisonment of 3 months has been directed to undergo. 2. The brief facts of prosecution case giving rise to this criminal revision are that the accused Satish Kumar Sahu came to the house of informant and expressed his intention to sell the land of plot no. 1709/1787, Khata No. 124, measuring area 0.30 decimal (12 katha), Thana No. 45, Mouza Kandra, PS Gamharia, District Saraikella at the rate of Rs.24,000/- per katha. The informant agreed to purchase the land at the very rate and paid Rs.38,500/- on different dates. The accused executed an agreement to sale and also promised to execute the sale deed within three months but the accused did not reach to the Registry Office to execute the sale deed in favour of the informant as was agreed. In the meantime, the accused has also given permission to the Airtel mobile company for erection of mobile tower on the very land under an agreement without any consent of the informant. When the informant visited the said land, he found the work was in progress for erection of the mobile tower on the very land. Same was opposed by the informant but was told by the accused persons that the sanction of mobile tower has been accorded. The informant asked the accused to execute the sale deed in his favour in compliance of the agreement to sale but he paid no heed at all rather accused warned to the informant not to insist for execution of sale deed in failure to face the dire consequences. Hence on this complaint by the order of CJM concerned, Adityapur P.S. Case No. 157 of 2009 was registered against the accused Satish Kumar Sahu for the offence under sections 420, 467, 468, 120B of IPC. Hence on this complaint by the order of CJM concerned, Adityapur P.S. Case No. 157 of 2009 was registered against the accused Satish Kumar Sahu for the offence under sections 420, 467, 468, 120B of IPC. The investigating officer after having concluded the investigation filed charge-sheet against the accused for the offence under sections 420, 467, 468, 120B of IPC. 3. The court of CJM, Saraikella took cognizance on the charge-sheet and framed charge against the accused for the offence under sections 420, 467, 468, 120B of IPC. The charge was also read over and explained to the accused who denied the charge and claimed to face the trial. 4. On behalf of prosecution to prove the charge against the accused in oral evidence examined altogether five witnesses, PW-1 Ratan Kumar, PW-2 Indradeo Paswan, PW-3 Rajnish Kumar Mishra, PW-4 Sajjan Kumar Paswan and PW-5 Basistha Rabidas and in documentary evidence filed application under section 156(3) of Cr.P.C. agreement to sale Exhibit-1, signature of witness on the agreement paper Exhibit-1/1, money receipt Exhibit-2, Exhibit 2/1 & 2/2, Exhibit-4 signature of Sajjan Kumar Paswan on the FIR and complaint Exhibit-4/1, FIR Exhibit-5. 5. The statement of accused under section 313 of Cr.P.C. was recorded who denied the incriminating circumstances in evidence against him and stated himself to be innocent. 6. On behalf of accused no evidence was adduced in defense. 7. The learned trial court after hearing the rival submission of learned counsel of parties acquitted the accused from the charge of 120B, 467 and 468 of the Indian Penal Code and convicted for the charge under section 420 of IPC and sentenced with imprisonment of 2 years RI and a fine of Rs.1,000/- and in default of payment of fine further simple imprisonment of 3 months was directed to undergo. 8. Aggrieved from the impugned judgment of conviction and sentence passed by the learned trial court, the convicted Satish Kumar Sahu filed the Criminal Appeal No. 94 of 2013 which was dismissed by the Court of the learned 1st Additional Sessions Judge, Saraikela-Kharsawan vide judgment dated 29.02.2016 and upheld the judgment of conviction and sentence of the petitioner Satish Kumar Sahu for the charge under section 420 of IPC. 9. 9. Aggrieved from the impugned judgment of conviction and sentence passed by the trial court and also the judgment passed by the appellate court whereby dismissing the appeal upheld the judgment of conviction and sentence of trial court the instant criminal revision was preferred on behalf of revisionist/convict Satish Kumar Sahu on the ground that the impugned judgment passed by the trial court and also by the appellate court are based on the wrong appreciation of the evidence on record. No ingredient of cheating is made out. The simple breach of the agreement to sale cannot give rise to institute the criminal offence under section 420 of IPC. The dispute between the parties was purely of civil nature which has been given the criminal colour in order to create the pressure upon the revisionist/convict. In view of the above, prayed to allow the criminal revision and to set aside the impugned judgment of conviction and sentence passed by both the court below. 10. I have heard the learned counsel for the revisionist and learned APP for the State and perused the relevant documents on record. 11. In order to decide the legality and propriety of the impugned judgment of conviction and sentence passed by the learned trial court which was affirmed by the learned appellate court, I would like to examine the illegality and material irregularity in upholding the conviction and sentence of the revisionist in view of the evidence on record. 11.1 PW-1 Ratan Kumar in his examination-in-chief says that the informant is his elder brother. Satish Kumar Sahu came to his house in the year 2004. He wanted to sell his land area of which was 12 katha. It was agreed to sell at the rate of Rs.24,000/- per katha. At that time he, R.B. Paswan and Ranjeet Kumar who were also present. The agreement was executed on 29.03.2004. On the agreement Satish Kumar Sahu and his brother put their signature. Till 2006, Rs.38,500/- was paid. The registry was to be done within one year. His brother Sajjan Kumar asked him to execute the sale deed but he did not execute the same rather criminally intimidated them. On the agreement to sell dated 29.03.2004 is the signature of him and signature of his brother Sajjan Kumar Paswan and signature of Satish Kumar Sahu. This agreement is in his handwriting and signature marked Exhibit-1. His brother Sajjan Kumar asked him to execute the sale deed but he did not execute the same rather criminally intimidated them. On the agreement to sell dated 29.03.2004 is the signature of him and signature of his brother Sajjan Kumar Paswan and signature of Satish Kumar Sahu. This agreement is in his handwriting and signature marked Exhibit-1. In cross-examination this witness says on which date what amount of money was given, he is not aware. After lapse of the period of one year from the date of agreement to sell no notice was given and this case was filed in the year 2009. No suit was filed for execution of sale deed from the period of 2005 to 2009. Even no suit was filed for repayment of the money given in agreement to sell. 11.2 PW-2 Indradeo Paswan in his examination-in-chief verifies his signature on the agreement to sell marks the same as Exhibit-1/1. All the three money receipts was given by his son which is in his handwriting and signature also bear the signature of him, Birbal Paswan and Satish Kumar Sahu. He identifies the signature of them marked Exhibit 2, 2/1, and 2/2. The compliance of agreement to sell was not made rather criminal intimidation was given. The agreement and money receipt were taken in custody by the investigating officer. The seizure memo bears his signature which is marked as Exhibit-3. In cross-examination this witness says within a period of one year they were ready to pay the rest of the amount. The whole amount was to be given at the time of execution of sale deed. No notice was given after lapse of one year and this case was filed in the year 2006. No suit for specific performance of agreement to sell or repayment of the money was filed. 11.3 PW-3 Rajnish Kumar Mishra in his examination-in-chief says that he put his signature on the agreement to sell and also the money receipt. In cross-examination this witness says in these money receipts how much money was shown, he is not aware. Who is the recorded Raiyat in the khatiyan, he is not aware. 11.4 PW-4 Sajjan Kumar Paswan the informant in his examination-in-chief says in regard to the land of plot no. 1709/1787, khata No. 124, area 0.30 decimal the agreement to sale was executed on 24.03.2004 at the rate of Rs.24,000/- per katha. Who is the recorded Raiyat in the khatiyan, he is not aware. 11.4 PW-4 Sajjan Kumar Paswan the informant in his examination-in-chief says in regard to the land of plot no. 1709/1787, khata No. 124, area 0.30 decimal the agreement to sale was executed on 24.03.2004 at the rate of Rs.24,000/- per katha. On the date of agreement to sell Rs.6,000/- was given to Satish Kumar Sahu and thereafter the total amount of Rs.38,500/- was given to Satish Kumar Sahu but no sale deed was executed and even the money which was paid was not returned. He also criminally intimidated him. He identifies the agreement to sell which bears his signature and also Satish Kumar Sahu on 06.07.2005 he paid Rs.2,000/- on 21.10.2005 he paid Rs.9,000/- the receipt of the same bears his signature and also of Satish Kumar Sahu marked Exhibit-2. The another receipt is 24.11.2005 of Rs.5,000/- it also bears signature of him and Satish Kumar Sahu which is already exhibited. On 15.10.2004 Rs.7,000/- was given which also bear signature of him and Satish Kumar Sahu marked Exhibit-2/2. On the seizure memo of the agreement to sell and money receipt are his signature which is already marked Exhibit-3. In cross-examination this witness says, he did not give any legal notice for execution of sale deed in compliance of the agreement to sell and no suit was filed for the same. Even no suit was filed for repayment of the money paid in advance. 11.5 PW-5 Basistha Rabidas the investigating officer in his examination-in-chief says that FIR of this case was lodged on the basis of the complaint. It bears the endorsement of Rajendra Prasad Sahu and forwarding by Anand Kumar Mishra in his handwriting and signature he identify the writing of both marked Exhibit-4/1. The formal FIR of the same is in the signature of Rajendra Prasad Sahu which is marked Exhibit-5. He had taken over the investigation of the same, recorded the statement of witnesses under section 161 of Cr.P.C. and also prepared the seizure memo which is in his handwriting and signature marked 3/3 and on the basis of the evidence collected, he filed the charge-sheet before the court concerned. 12. Herein it would be pertinent to reproduce the statutory provision of sections 415 and 420 of IPC which is reproduced herein-below: “415. 12. Herein it would be pertinent to reproduce the statutory provision of sections 415 and 420 of IPC which is reproduced herein-below: “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.” 420. Cheating and dishonestly inducing delivery of property - Whoever cheats and thereby dishonestly induces the person deceived 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, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 13. From the bare perusal of section 415 of IPC the following ingredients are necessary to make out the offence of cheating (1) deception of any person, (2)(a) fraudulently or dishonestly inducing that person deceived (i) to deliver any property to any person or (ii) to consent that any person shall retain any property (2)(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were so deceived and which act or omission causes or is likely to cause damage or harm to that person in body harm, reputation or property. 14. From the bare perusal of section 420 of IPC the following ingredients are necessary (I) there should be fraudulent or dishonest inducement of a person by deceiving him. 14. From the bare perusal of section 420 of IPC the following ingredients are necessary (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 so 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 and (III) in cases covered by (ii)(b) the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 15. From the very perusal of the evidence on record, documentary and oral as well, there is no dishonest or fraudulent intention on the part of the revisionist/convict to deceive the informant. No evidence has been adduced on behalf of prosecution in regard to the deception being exercised on the informant by the accused. 16. Rather the agreement to sell which has been proved by the prosecution same was executed between the parties consensually. There is no evidence in regard to the deception being exercised upon the informant. The sale deed which was to be executed within one year from the date of execution of agreement to sell after lapse of that period admittedly the informant neither had given any notice to get the sale deed executed in his favour nor has filed the suit for specific performance of agreement to sell to get the sale deed executed in his favour. Even the informant has not filed the suit for refund of the money which is alleged to have been paid at the time of agreement to sell and subsequent to agreement to sell as alleged. 17. It is the settled law in order to attract the offence of 420 of IPC the complainant has to allege the inducement caused to him by the accused by exercising deception upon him. No such evidence had been adduced on behalf of the prosecution witnesses who were examined in support of the charge framed against the revisionist/convict. 18. 17. It is the settled law in order to attract the offence of 420 of IPC the complainant has to allege the inducement caused to him by the accused by exercising deception upon him. No such evidence had been adduced on behalf of the prosecution witnesses who were examined in support of the charge framed against the revisionist/convict. 18. From the evidence adduced on behalf of the prosecution only the breach of agreement to sell is proved and mere breach of agreement to sell in absence of cheating cannot give rise to file the criminal proceeding for the offence under section 420 of IPC. 19. The Hon'ble Apex court in Dalip Kaur & Ors. v. Jagnar Singh & Anr. AIR 2009 SC 3191 held: “10........................... An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating.” 20. The Hon'ble Apex Court in Iridium India Telecom Ltd. v. Motorola Incorporated & Ors. AIR 2011 SC 20 held: “42. A bare perusal of the aforesaid section would show that it can be conveniently divided into two parts. The first part makes it necessary that the deception by the accused of the person deceived, must be fraudulent or dishonest. Such deception must induce the person deceived to: either (a) deliver property to any person; or (b) consent that any person shall retain any property. The second part also requires that the accused must by deception intentionally induce the person deceived either to do or omit to do anything which he would not do or omit, if he was not so deceived. Furthermore, such act or omission must cause or must be likely to cause damage or harm to that person in body, mind, reputation or property. Thus, it is evident that deception is a necessary ingredient for the offences of cheating under both parts of this section. The complainant, therefore, necessarily needs to prove that the inducement had been caused by the deception exercised by the accused. Such deception must necessarily produce the inducement to part with or deliver property, which the complainant would not have parted with or delivered, but for the inducement resulting from deception. The explanation to the section would clearly indicate that there must be no dishonest concealment of facts. Such deception must necessarily produce the inducement to part with or deliver property, which the complainant would not have parted with or delivered, but for the inducement resulting from deception. The explanation to the section would clearly indicate that there must be no dishonest concealment of facts. In other words, non-disclosure of relevant information would also be treated as a misrepresentation of facts leading to deception. It was, therefore, necessary for the High Court to examine the averments in the complaint in terms of the aforesaid section.” 21. The Hon'ble Apex Court in Vijay Kumar Ghai & Ors. v. State of West Bengal & Ors. 2022 Live Law Supreme Court 305 held: “34. There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by this court in Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr. (2000) 4 SCC 168 , the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by the Respondent No. 2 does not disclose dishonest or fraudulent intention of the appellants.” 22. In view of the critical examination of the evidence on record it is found that the learned trial court as well as the learned appellate court both have passed the judgment of conviction and sentence of the revisionist/convict based on perverse finding by evaluating the evidence on record in wrong perspective. The illegality and material irregularity has been committed by both the court below in holding the conviction and sentence of the revisionist/convict. Accordingly, this criminal revision deserves to be allowed. 23. The criminal revision is hereby allowed and the impugned order of conviction passed by the trial court in G.R. Case No. 520 of 2009 (T.R. No. 910 of 2013) which was affirmed by the appellate court in Criminal Appeal No. 94 of 2013 dated 12.06.2013 & 29.02.2016 respectively are set aside and the revisionist is acquitted from the charge of section 420 of IPC. 24. The bail bonds of revisionist are hereby cancelled and the sureties are discharged from the liability. 25. 24. The bail bonds of revisionist are hereby cancelled and the sureties are discharged from the liability. 25. Let the record of learned court below be sent back alongwith copy of the judgment.