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2017 (8) TMI 1703 - SUPREME COURTApplication for discharge alleging that neither sufficient allegations are made nor evidence to prosecute the Appellant Under Section 420 Indian Penal Code was produced - application was filed by the Appellant seeking discharge on the ground that there are no evidence to frame charge Under Section 420 Indian Penal Code - HELD THAT:- It is clear that ingredients of Section 420 Indian Penal Code are not made out in the present case, either from the First Information Report or from any other material. From the First Information Report as extracted above only allegation made against the Appellant was that he accompanied his father Major P.C. Sahay (Retd.) when he assured that the money of the applicants will not be lost and it shall be the responsibility of his father (late P.C. Sahay). In the First Information Report even allegation of making assurance was not made against the Appellant but was made against Major P.C. Sahay (Retd.), father of the Appellant. There was no allegation that the Appellant fraudulently or dishonestly induced the complainant to deposit money - This Court in Arun Bhandari v. State of Uttar Pradesh and Ors. [2013 (1) TMI 1049 - SUPREME COURT], has held that it is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. The Chief Judicial Magistrate while rejecting the application of the Appellant for seeking discharge has not even referred to any allegation or evidence on the basis of which it can be said that ingredients of Section 420 Indian Penal Code were made out in the facts of the present case - in the present case ingredients of Section 420 Indian Penal Code were not made out so as to frame any charge Under Section 420 Indian Penal Code against the Appellant. The order of the Chief Judicial Magistrate dated 28.02.2007 and the judgment of the High Court dated 21.10.2016 are set aside. The Appellant shall stand discharged from the charges Under Section 420 Indian Penal Code - Appeal allowed.
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