- (1.) THIS is an application by Pukhraj against his conviction under s. 420 of the Indian Penal Code. He was sentenced to rigorous imprisonment for two months and a fine of Rs. 1800/- in default of payment of fine to undergo further rigorous imprisonment for a period of two months by the First Class Magistrate, Jalore. His appeal before the learned Additional Sessions Judge, Jalore also failed. Hence this revision,
(2.) THE facts material for the purpose of this revision are that on 22nd September, 1957 houses of Sawa (P. W. 3) and Rikhba (P. W. 5) residents of village Jivana were searched in connection with the smuggling of gold from Pakistan into India. Nothing was recovered from the house of Rikhba. From Sawa's house some cartridges and a 12 bore gun was recovered. At the time of search the applicant who is said to be the informant was present along with the officers of the police and the Land Customs Department. THEse officers left Jivana for village Sanghana. On the night between 22nd and 23rd September,1957, it is said that the applicant collected an amount of Rs. 1800/-from some persons for the purpose of paying it as bribe to some officers promising them that they would not be harassed and the cases against them would be hushed up. He is said to have collected Rs. 1000/- from Rikhba, Rs. 500/- from Sawa for his own case and another amount of Rs. 300/- from him for releasing Adrim, Dina and Saiba of village Sanghana and Rs. 50/- from one Bansi. On 23rd September, 1957, when Sukhram Circle Inspector Police was proceeding to Babtra Police Station in the pick-up car along with some other persons including the applicant and Sawa, he came to know from some source that the applicant had collected Rs. 1850/- for paying it to officers as bribe. On reaching Babtra he asked all the occupants of the pick-up car to keep sitting in their place and then informed the Superintendent of Police, Jalore of what had come to his knowledge about the conduct of the applicant. A search of Pukhraj applicant was taken and currency notes worth Rs. 1800/-were recovered from inside his shoes while Rs, 50/- were recovered from the pocket of his shirt. After investigation the accused was challaned to take his trial under sec. 420 of the Indian Penal Code. On behalf of the prosecution, Sawa, Siremal, Rikhba, Bansi and Saiba were examined to prove the payment of various amounts to the accused. Rikhba denied having himself paid any money to the accused and stated that he was not present in the village on that date. Siremal Stated that when Rikhba's house was searched some members of the staff who had accompanied the officers told him to pay Rs. 1000/- otherwise the ladies of Rikhba's house would be taken to Jalore. At that time Sawa who was present there also asked him to pay Rs. 1000/- and thereupon he paid Rs. 1000/- to Sawa. He does not depose to have given any amount to the accused. Sawa stated about the search of his house, recovery of a gun and cartridges and that the accused had asked him to pay Rs. 500/- to be paid to some officers so that the case against him might be hushed up. He accordingly paid Rs. 500/- to the accused. He also stated that he paid Rs. 300/- to the accused on behalf of Adrim, Saiba and Dina of village Sanghana so that they may be released from their cases. He denied having received any amount from Siremal. Bansi did not support the prosecution case. He denied having made any payment to the accused. Saiba only stated that he was told that Sawa had paid Rs. 300/- to some one on his behalf. He did not name the accused as the person to whom the money was paid. The courts below have believed the statements of Sawa, Siremal and came to the conclusion that Rs. 1800/- were paid by them to the accused and the said amount was recovered from the possession of the accused when he was searched at Babtra. The accused denied having taken any amount from the prosecution witnesses. He admitted that Rs. 1850/- were recovered on his search but stated that the amount belonged to him. The finding is that the accused has dishonestly realised Rs. 1800/- from Sawa and Siremal to get them released by offering bribe to police officers. In my opinion on this finding the conviction of the accused cannot be sustained. In order to bring the case within the offence of cheating it is necessary to prove that at the time the accused made the representation, he knew that it was false and it was made in order to deceive the person paying the money. In the present case it is not established that at the time the accused took money from Sawa and Rikhba he had made a false representation to them and that he had no intention to pay that money to the officers for whom he had taken it. The prosecution evidence on the point as to for whom the money was collected is quite vague. The evidence is that the petitioner had said that it would be paid to some officers. The money was taken on the night between 22nd and 23rd September, 1957 and on the next day when the officers of the police and the Land Customs Department came back from Sanghana the accused was taken to Babtra along with other persons. The money was still with the accused and it cannot be said that he had the opportunity to carry out his intention before he was arrested. Merely taking money for the purpose of paying it as illegal gratification to a public servant without any intention to deceive, however reprehensible it may be would not amount to the offence of cheating punishable under sec. 420 of the Indian Penal Code. Reference in this connection may be made to Public Prosecutor Vs. Bhimeswara Rao (1), where the accused who was an auditor of the firm of the complainants represented to them that he wanted Rs. 1000/- to be offered as bribe to the Income Tax officer for avoiding assessment of excess profits tax on the income of the firm and they agreed and paid the amount for that purpose to the accused. The firm was not assessed to excess profits tax but some time later it was found that the accused had not paid the amount to the Income-Tax Officer. The accused was prosecuted for cheating in respect of this amount. It was held that: "it might be that the amount was not really paid to the Income-Tax Officer but since it had not been proved that at the time the accused made the alleged representation he made it falsely and with the intention to deceive the complainants, which was. . . . . . . . . an essential ingredient of the offence of cheating, the accused could not be convicted under sec. 420. Learned counsel for the applicant also invited my attention to the statement of Sawa and Siremal and urged that their evidence is not satisfactory. Since the courts below have accepted the statement of Sawa so far as the amount paid by him to the accused is concerned there is no ground to disagree with that finding. In view of the fact that the ingredient of the offence of cheating has not been proved, the accused cannot be convicted. This revision application succeeds on a point of law and is hereby allowed. The conviction and sentence of the accused is set aside. He is on bail and need not surrender to it. Learned Deputy Government Advocate prays for leave to appeal to the Supreme Court. I find no sufficient grounds to grant such leave. The prayer is rejected. . ;