Calcutta High Court (Appellete Side)
Narayan @ Ghanashyam Mondal vs The State on 25 March, 2026
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Prasenjit Biswas
C.R.A. 107 of 1993
Narayan @ Ghanashyam Mondal
-Versus-
The State
For the Appellant : Mr. Rajib Ray.
For the State : Mr. Avishek Sinha,
Mr. Abhishek Verma.
Hearing concluded on : 06.03.2026
Judgment On : 25.03.2026
Prasenjit Biswas, J:-
1.This appeal is directed against the impugned judgment and order of conviction dated 21.04.1993 passed by the Additional Sessions Judge, Contai, Midnapore in connection with Sessions Trial Case No. VI/May/1992 arising out of Bhupatinagar P.S. Case No. 45 of 1990, dated 29.05.1990, whereby and where under this appellant was found guilty for commission of offence punishable under Section 417 of the Indian Penal Code and was 2 C.R.A. 107 of 1993 sentenced to suffer rigorous imprisonment for one year along with fine of Rs. 500/- and in default of payment of fine to undergo further simple imprisonment for two months.
2. Being aggrieved by and dissatisfied with the said impugned judgment and order of conviction and sentence, this appellant has preferred the present appeal.
3. The prosecution case, in brief, as unfolded from the written complaint and the materials collected during the course of investigation, is that-
"the criminal law was set into motion on the basis of a written complaint lodged by the de-facto complainant/victim against the present appellant. In the said complaint, it was alleged that the appellant had developed an intimate relationship with the victim on the pretext and assurance of marriage, and by holding out such promise, he induced her to repose trust in him, which ultimately resulted in her being deceived. It has been specifically alleged in the written complaint that on one occasion, when the victim was on her way to watch a cinema show, the appellant followed her and, taking advantage of a secluded and lonely place, gagged her mouth and forcibly took her to a 3 C.R.A. 107 of 1993 mud house where he committed sexual intercourse with her against her will. It is further alleged that at the time of such occurrence, the appellant assured the victim that he would marry her, and such assurance was held out as a means to secure her silence and submission. The prosecution case further proceeds to state that after the said incident, the appellant continued to maintain physical relations with the victim on subsequent occasions, again on the assurance that he would marry her. It is alleged that such cohabitation took place on two or three occasions, during which the appellant and the victim lived together and engaged in sexual relations as if they were husband and wife, the victim having reposed faith in the promise of marriage extended by the appellant. It has also been alleged that thereafter, following the demise of the appellant's father, the victim requested the appellant to fulfil his promise and solemnise the marriage, and to take her to his matrimonial home. However, at that stage, the appellant is said to have resiled from his earlier assurance and categorically refused to marry the 4 C.R.A. 107 of 1993 victim. A further allegation made in the written complaint is that the appellant had suppressed a material fact from the very inception, namely, that he was already a married person. According to the victim, this fact came to her knowledge only a few days prior to the lodging of the complaint, and it is contended that such concealment constituted a fraudulent act on the part of the appellant, thereby vitiating the consent, if any, given by the victim. It has also been stated in the complaint that as a result of the physical relationship with the appellant, the victim had conceived and was carrying the child of the appellant in her womb at the time of filing of the complaint. On the basis of the aforesaid allegations, the police machinery was set in motion, and upon completion of investigation, charge-sheet was submitted against the appellant under Sections 376 and 417 of the Indian Penal Code, alleging commission of rape and cheating, respectively."
4. The learned Trial Court framed charge against the appellant under Sections 376/417 of the Indian Penal Code which was 5 C.R.A. 107 of 1993 read over and explained to the accused, in which he pleaded not guilty and claimed to he tried.
5. Ultimately, upon appreciation of the materials available on record and the evidences cited by the side of the prosecution, the learned Trial Court found the appellant guilty of the offence of cheating and convicted him under Section 417 of the Indian Penal Code.
6. Mr. Rajib Ray, learned Advocate appearing on behalf of the appellant, has assiduously contended that the impugned judgment of conviction suffers from patent illegality and is wholly unsustainable in the eye of law. It is submitted that there exists no cogent, reliable or legally admissible evidence on record to bring home the charge under Section 417 of the Indian Penal Code against the appellant, and the learned Trial Court gravely erred in recording the conviction merely on the basis of surmises and conjectures, without there being any substantive proof of the essential ingredients of the offence of cheating.
7. Elaborating his submissions, learned Advocate for the appellant has argued that the very foundation of the prosecution case stands vitiated inasmuch as the victim girl, who was the de- facto complainant and the maker of the First Information Report, expired after lodging of the complaint and prior to trial, 6 C.R.A. 107 of 1993 and consequently, she could not be examined as a witness. It is urged that in the absence of her testimony, the allegations contained in the First Information Report remained unproved, and the same could not have been treated as substantive evidence to sustain the conviction. According to him, the learned Trial Court fell into serious error in placing reliance upon such unproved allegations, thereby rendering the conviction legally untenable.
8. It is further contended that even from the evidence of the prosecution witnesses, taken at its face value, it would appear that the victim was herself inclined to marry the appellant, and there is nothing on record to demonstrate that the appellant had made any false promise of marriage with a dishonest intention from the inception so as to induce the victim to enter into a physical relationship. In the absence of proof of a fraudulent or dishonest inducement at the very inception, the essential ingredients of the offence of cheating, as contemplated under Section 417 of the Indian Penal Code, remain conspicuously absent.
9. The learned Advocate has also emphasised that the victim, at the relevant point of time, was admittedly above 18 years of age and was, therefore, a major, fully capable of understanding the nature and consequences of her actions. It is submitted 7 C.R.A. 107 of 1993 that the materials on record clearly suggest that any relationship, if at all, between the parties was consensual in nature, and such consensual acts between two adults cannot, in the absence of deception or coercion, be brought within the ambit of a criminal offence under Section 417 of the Indian Penal Code.
10. Drawing further attention to the inconsistencies in the prosecution case, learned Advocate for the appellant has pointed out that there are material contradictions between the contents of the First Information Report and the statement of the victim recorded under Section 164 of the Code of Criminal Procedure. It is argued that such inconsistencies go to the root of the prosecution case and seriously undermine its credibility. In the absence of any independent corroborative evidence, reliance upon such contradictory versions to base a conviction is wholly impermissible in law.
11. It is also contended that apart from the allegations contained in the First Information Report and the statement under Section 164 of the Code of Criminal Procedure, there is no substantive evidence on record to establish that the appellant had either forcibly committed sexual intercourse or had induced the victim to do so on a false promise of marriage. In such circumstances, 8 C.R.A. 107 of 1993 the very application of Section 417 of the Indian Penal Code is misconceived and amounts to a misnomer.
12. The learned Advocate has further advanced the argument that the appellant having been acquitted of the charge under Section 376 of the Indian Penal Code, the conviction under Section 417 of the Indian Penal Code cannot be sustained, as both the charges are intrinsically connected and arise out of the same set of allegations. It is submitted that once the more serious charge has failed for want of evidence, the lesser charge based on the same factual matrix cannot independently survive.
13. In support of his submissions, learned Advocate has drawn the attention of this Court to the evidence of PW10, the Investigating Officer, who in his cross-examination categorically stated that PW1, the father of the victim, did not disclose before him that the victim had narrated any incident of forcible rape or that the appellant had established physical relations with her on the assurance of marriage. The Investigating Officer further admitted that no such statements, as later deposed by PW1 before the Trial Court, were made during the course of investigation. It is thus contended that the testimony of PW1 is an afterthought and is based on suspicion rather than on direct knowledge, and as such, cannot be relied upon. 9
C.R.A. 107 of 1993
14. Reference has also been made to the evidence of PW9, the Medical Officer, who opined that the victim was more than 18 years of age, approximately 19 years old, at the relevant time, thereby reinforcing the submission that she was a consenting adult.
15. On the cumulative assessment of the aforesaid facts and circumstances, learned Advocate for the appellant has strenuously urged that the prosecution has miserably failed to establish the charge against the appellant beyond reasonable doubt. The findings of the learned Trial Court, being based on insufficient and unreliable evidence, are liable to be set aside. Accordingly, it is prayed that the impugned judgment and order of conviction be set aside and the appeal be allowed in favour of the appellant.
16. Mr. Avishek Sinha, learned Advocate appearing for the State, has strenuously opposed the appeal and contended that the impugned judgment of conviction does not suffer from any infirmity, either on facts or in law, warranting interference by this Court. It is submitted that the learned Trial Court has meticulously appreciated the evidence on record and has arrived at its findings upon proper evaluation thereof, and as such, the same ought not to be disturbed in the absence of any perversity or patent illegality.
10
C.R.A. 107 of 1993
17. Addressing the principal contention of the appellant regarding the non-examination of the victim, learned Advocate for the State has submitted that although the victim expired after lodging of the complaint and could not be examined during trial, the prosecution case does not fail on that score alone. It is argued that the contents of the written complaint are admissible and stand proved in accordance with law, particularly in view of the provisions of Section 47 of the Indian Evidence Act, as contended by him. He has further submitted that both the written complaint lodged by the de facto complainant and her statement recorded under Section 164 of the Code of Criminal Procedure were duly exhibited during trial, and therefore, the absence of the victim as a witness is not fatal to the prosecution case.
18. Inviting the attention of this Court to Exhibit-1, being the written complaint, learned Advocate for the State has submitted that the same clearly delineates the sequence of events leading to the commission of the offence. It is pointed out that as per the complaint, within a few days of the initial acquaintance, when the victim was on her way to watch a cinema, the appellant allegedly took her to a secluded place, gagged her mouth, and forcibly took her to a mud house where he committed sexual intercourse upon her on the assurance 11 C.R.A. 107 of 1993 that he would marry her. It is further submitted that the complaint also reveals that on subsequent occasions, the appellant continued to cohabit with the victim on the same promise of marriage, thereby establishing a pattern of conduct amounting to deception and inducement.
19. The learned Advocate has next drawn attention to the evidence of PW1, the father of the victim, who deposed that he came to learn about the relationship between his daughter and the appellant when the victim herself lodged the complaint at the police station on 28.05.1990. It is further highlighted that PW1 categorically stated that his daughter was subsequently murdered on the night of 28.05.1992 while returning from the market by unknown miscreants, and that prior to the said incident, the appellant along with his brother-in-law had visited their house and threatened him with dire consequences if the case was not withdrawn. Significantly, it is pointed out that this part of the testimony remained unchallenged in cross- examination, thereby lending credence to the prosecution case.
20. Learned Advocate for the State has also relied upon the evidence of PW2, who stated that he had seen the appellant working in his field and observed the victim engaging in intimate conversation with him throughout the day. Though this may indicate acquaintance, it is argued that such evidence, 12 C.R.A. 107 of 1993 when read in conjunction with the victim's complaint, supports the existence of a relationship which was subsequently exploited by the appellant.
21. Further reliance has been placed on the testimony of PW3, who deposed that the victim had personally narrated to him that the appellant had forcibly committed sexual intercourse upon her by gagging her mouth in a deserted room belonging to one Sripada Pradhan, and thereafter assured her of marriage, on the strength of which she later consented to further acts of cohabitation. According to the learned Advocate, this evidence constitutes a vital piece of corroboration to the allegations made in the written complaint and the statement under Section 164 of the Code of Criminal Procedure.
22. It is also contended that the written complaint was duly proved through the evidence of the scribe (PW4) as well as the father of the victim, thereby satisfying the requirement of proof of the document. The learned Advocate has further referred to the evidence of PW5 to submit that the victim was a minor at the time of the occurrence, and therefore, the question of consent assumes significance in the context of the promise of marriage held out by the appellant.
23. Attention has also been drawn to the deposition of PW7, the Sub-Divisional Medical Officer, who examined the victim on 13 C.R.A. 107 of 1993 09.06.1990 in connection with the case and assessed her age to be approximately 17 years at the relevant time. This, according to the learned Advocate, lends further support to the prosecution version regarding the circumstances in which the incident took place.
24. The learned Advocate has emphasised that the statement of the victim recorded under Section 164 of the Code of Criminal Procedure was duly proved and marked as Exhibit-8, wherein the victim consistently reiterated the allegations as made in the written complaint. It is submitted that such statement, being recorded before a Magistrate, carries substantial evidentiary value and reinforces the prosecution case.
25. On the cumulative consideration of the oral and documentary evidence on record, learned Advocate for the State has submitted that the prosecution has successfully established the chain of circumstances pointing towards the guilt of the appellant. It is thus contended that there is no material on record to dislodge the findings of the learned Trial Court, and the conviction recorded against the appellant is fully justified and sustainable in law. Accordingly, it is prayed that the appeal be dismissed.
26. I have anxiously considered the rival submissions advanced on behalf of the parties and have carefully gone through the entire 14 C.R.A. 107 of 1993 materials available on record, including the oral and documentary evidence as well as the impugned judgment passed by the learned Trial Court.
27. The principal question that falls for determination in the present appeal is whether the conviction of the appellant under Section 417 of the Indian Penal Code can be sustained in law in a situation where the de-facto complainant/victim, being the maker of the First Information Report and the most material witness, expired prior to trial and, therefore, could not be examined, and further, whether in such circumstances the written complaint and her previous statement can be said to have been proved in accordance with law so as to form the basis of conviction.
28. At the outset, it is required to be borne in mind that a conviction under Section 417 of the Indian Penal Code, which deals with punishment for cheating, necessarily presupposes the establishment of the offence of "cheating" as defined under Section 415 of the Indian Penal Code. The prosecution, therefore, carries the burden of proving beyond reasonable doubt the essential ingredients of the said offence. These ingredients may be succinctly stated as follows: firstly, there must be deception of a person; secondly, such deception must induce the person so deceived to deliver any property or to 15 C.R.A. 107 of 1993 consent that any person shall retain any property, or intentionally induce that person to do or omit to do anything which he or she would not do or omit if not so deceived; and thirdly, such inducement must be fraudulent or dishonest at the very inception.
29. In the present case, a fundamental infirmity strikes at the very root of the prosecution case. It is an admitted position on record that the victim girl, who was the defacto complainant and the maker of the written complaint, expired during the pendency of the trial and, as such, could not be examined as a prosecution witness. Consequently, the conviction of the appellant rests substantially upon two materials, namely, the written complaint marked as Exhibit-1 and the statement of the victim recorded under Section 164 of the Code of Criminal Procedure, marked as Exhibit-8.
30. The case was initially set into motion on the basis of a written complaint lodged by the defacto complainant alleging that the appellant had induced the victim into a relationship on the false promise of marriage and subsequently failed to fulfil such promise, thereby committing the offence of cheating. Upon receipt of the said complaint, investigation was undertaken and culminated in submission of charge-sheet against the appellant. However, the subsequent demise of the complainant before her 16 C.R.A. 107 of 1993 examination in Court introduces a serious lacuna in the prosecution case which cannot be lightly brushed aside.
31. It is a settled principle of criminal jurisprudence, rooted in the provisions of the Indian Evidence Act, that a written complaint or First Information Report does not, by itself, constitute substantive evidence of the truth of its contents. Such a document can only be used for limited purposes, such as corroboration or contradiction of its maker, provided the maker enters the witness box. Ordinarily, the author of the document must depose before the Court to prove not only its execution but also the veracity of the statements contained therein. It is only upon such proof that the document can be relied upon as evidence against the accused.
32. In the present case, although PW2 (the father of the defacto complainant) and PW4 (the scribe) deposed and the written complaint was formally marked as Exhibit-1, such marking does not ipso-facto establish the truth of its contents. Their evidence could, at best, prove that such a complaint was written or lodged, but they are not competent to depose about the truthfulness of the allegations made therein, which were within the exclusive knowledge of the deceased complainant. The failure of the maker of the complaint to enter the witness 17 C.R.A. 107 of 1993 box, due to her unfortunate demise, renders the contents of the complaint unproved in the eye of law.
33. It is equally well settled that the contents of a document cannot be treated as proved merely because the document has been exhibited. Proof of a document and proof of its contents are distinct and separate legal requirements. In the absence of examination of the maker, the complaint remains a piece of unsubstantiated material and cannot be elevated to the status of substantive evidence.
34. The inevitable legal consequence of this situation is that the very foundation of the prosecution case remains unestablished. When the principal allegations forming the substratum of the case are not proved through legally admissible evidence, it would be wholly unsafe to base a conviction upon such unverified assertions. A criminal Court is bound to adjudicate on the basis of evidence which satisfies the standard of proof beyond reasonable doubt, and not on the basis of untested allegations.
35. It is also pertinent to note that a First Information Report is not a substantive piece of evidence and can only be used to corroborate or contradict its maker. In the absence of the maker, such use is rendered impossible. Therefore, the reliance placed by the learned Trial Court on the allegations contained 18 C.R.A. 107 of 1993 in Exhibit-1, despite the absence of proof of its contents, is legally untenable.
36. So far as the statement under Section 164 of the Code of Criminal Procedure (Exhibit-8) is concerned, the same also does not, by itself, constitute substantive evidence unless the maker is examined in Court. Such a statement can be used only for corroboration or contradiction. In the absence of the victim's deposition before the Court, the statement under Section 164 Cr.P.C. cannot be treated as substantive evidence to sustain a conviction.
37. Thus, the learned Trial Court fell into a manifest error in law in treating the allegations contained in the unproved written complaint, as well as the statement under Section 164 Cr.P.C., as the basis for recording the conviction of the appellant. Acting upon such material amounts to reliance on evidence which has no probative value in the eye of law.
38. In criminal trials, the burden lies squarely upon the prosecution to establish the guilt of the accused beyond reasonable doubt by adducing legally admissible and reliable evidence. When the most material witness, namely the victim herself, was not examined due to her death, and when the primary document forming the basis of the prosecution case remains unproved in 19 C.R.A. 107 of 1993 respect of its contents, the entire edifice of the prosecution case stands seriously undermined.
39. In such circumstances, this Court is of the considered opinion that the allegations contained in the written complaint cannot be treated as proved facts, and the reliance placed upon such unproved material by the learned Trial Court in recording the conviction of the appellant constitutes a grave and manifest error of law, which cannot be sustained and is liable to be set aside.
40. Even if the oral testimonies of the prosecution witnesses are taken at their highest and accepted in their entirety, the materials available on record unmistakably indicate that the victim was a major at the relevant point of time and was fully competent to take independent decisions concerning her personal life, including entering into a consensual relationship.
41. In this context, the evidence of PW9, Dr. H.P. Halder, who medically examined the victim, assumes considerable significance. The said witness, in the course of his cross- examination, categorically opined that the age of the victim was above 18 years and close to 19 years. The opinion of a qualified medical practitioner, based on scientific examination, carries substantial evidentiary weight in determining the approximate age of a person, particularly in the absence of any 20 C.R.A. 107 of 1993 cogent documentary evidence to the contrary. Such medical opinion, when read in conjunction with the surrounding facts and circumstances of the case, clearly establishes that the victim had attained the age of majority and possessed the legal capacity to consent and to make voluntary choices regarding her relationship.
42. The factual matrix emerging from the prosecution evidence further indicates that the relationship between the victim and the appellant was not one arising out of coercion or deception from the very inception, but rather a consensual association. It appears that the victim was inclined to marry the appellant and continued the relationship over a period of time. As per the allegations in the complaint, the appellant had initially established physical relations with the victim on the assurance of marriage and such relations continued on a few subsequent occasions. However, the narrative itself suggests continuity of the relationship, which is indicative of a voluntary and consensual involvement rather than one induced solely by fraud or misconception of fact.
43. Significantly, it is only at a later stage, after the death of the appellant's father, when the victim allegedly pressed for marriage and the appellant declined on the ground that he was already married, that the present complaint came to be lodged. 21
C.R.A. 107 of 1993 This sequence of events, as reflected from the record, suggests that the grievance arose out of the appellant's subsequent refusal to marry, rather than from any initial fraudulent intention. It is well settled that a mere breach of promise to marry, in the absence of evidence to show that such promise was false from the very inception and was made with a dishonest intention to deceive, does not constitute the offence of cheating.
44. Moreover, the testimony of PW10, the Investigating Officer, further weakens the prosecution case. The Investigating Officer categorically deposed that PW1 (father of the victim) did not state before him during investigation that the victim had disclosed to him that the appellant had established physical relations with her on the assurance of marriage on multiple occasions leading to pregnancy, or that the appellant had subsequently refused to marry her on the ground of his prior marriage. These material omissions amount to significant contradictions, as the version sought to be introduced by PW1 before the learned Trial Court appears to be an embellishment and improvement over his earlier statement made during investigation. Such improvements strike at the credibility of the witness and render his testimony unreliable for the purpose of sustaining a conviction.
22
C.R.A. 107 of 1993
45. It is a settled principle of evidence that when a witness makes material improvements in Court which were not stated during investigation, such testimony becomes doubtful and unsafe to rely upon. In the present case, the evidence of PW1, being inconsistent with his prior statement, cannot be accorded much evidentiary value.
46. It is also of considerable relevance that although there were allegations of rape levelled against the appellant, the learned Trial Court did not find sufficient evidence to sustain the charge under Section 376 of the Indian Penal Code and the appellant was acquitted of the said charge. This acquittal necessarily implies that the Court did not accept the prosecution case that the physical relationship was non-consensual or was vitiated by misconception of fact within the meaning of law.
47. Once it is found that the relationship between the parties was consensual and that the victim was a major capable of making her own decisions, the substratum of the allegation that the appellant committed cheating by inducing her into such relationship on a false promise of marriage becomes inherently weak. For an offence under Section 417 of the Indian Penal Code to be made out, it must be established that the accused had a fraudulent or dishonest intention at the very inception of the promise. A subsequent failure or refusal to fulfil a promise, 23 C.R.A. 107 of 1993 howsoever unfortunate, does not by itself give rise to criminal liability for cheating.
48. It is trite law that the gravamen of the offence lies in the intention of the accused at the time of making the representation. In other words, the prosecution must establish that the accused had a dishonest or fraudulent intention at the very inception of the transaction and that the promise or representation made by him was false to his knowledge. A mere breach of promise, howsoever reprehensible in a moral sense, does not ipso-facto constitute the offence of cheating unless it is shown that such promise was made without any intention of being performed from the very beginning.
49. In cases arising out of an alleged promise to marry, there must be clear and cogent evidence to demonstrate that the promise was a mere ruse or a device employed by the accused to obtain consent, and that such promise was false from its inception. If the materials on record indicate that the relationship between the parties was consensual and developed over a period of time, or that the promise could not be fulfilled due to subsequent events or change of circumstances, the same would not attract the penal provisions relating to cheating.
50. Applying the aforesaid settled principles to the facts of the present case, this Court finds that the evidentiary foundation of 24 C.R.A. 107 of 1993 the prosecution case is rendered inherently fragile owing to the non-examination of the victim herself. The victim, being the author of the written complaint and the person who allegedly suffered the deception, was the best and most competent witness to depose as to the nature of the alleged promise, the circumstances under which such promise was made, and the state of mind of the appellant at the relevant point of time. Her untimely death before trial has undoubtedly deprived the prosecution of its most vital witness.
51. In such a situation, the Court is required to exercise greater caution in appreciating the remaining evidence on record. The written complaint, though brought on record and marked as an exhibit, cannot by itself be treated as substantive evidence of the truth of its contents unless duly proved in accordance with law and tested through cross-examination, which, in the present case, was rendered impossible due to the death of the maker. Similarly, the statement recorded under Section 164 of the Code of Criminal Procedure, though relevant for limited purposes, cannot assume the character of substantive evidence in the absence of the maker being examined in Court.
52. Consequently, the prosecution was under an obligation to establish the ingredients of the offence through independent and reliable evidence. However, upon a careful scrutiny of the 25 C.R.A. 107 of 1993 testimonies of the prosecution witnesses, it does not appear that there is any direct or cogent evidence to prove that the appellant had made a false promise of marriage with a dishonest intention from the very inception. The evidence, at best, suggests the existence of a relationship between the parties, but falls short of establishing the essential element of deception coupled with fraudulent inducement.
53. In the absence of clear proof that the appellant never intended to marry the victim at the time when the alleged promise was made, and in the absence of substantive evidence establishing that the consent, if any, was obtained on account of such false promise, it would be unsafe to uphold the conviction under Section 417 of the Indian Penal Code.
54. It is well settled that suspicion, however strong, cannot take the place of proof, and where two views are possible on the basis of the evidence on record, the one favourable to the accused must be adopted. The standard of proof required in a criminal case being that of proof beyond reasonable doubt, any lacuna in establishing the foundational facts must necessarily enure to the benefit of the accused.
55. In the present case, there is no cogent or convincing evidence to show that the appellant never intended to marry the victim from the very beginning or that the promise was a mere device 26 C.R.A. 107 of 1993 to obtain consent. On the contrary, the materials on record suggest a consensual relationship which subsequently did not culminate in marriage, leading to the filing of the complaint.
56. In view of the above circumstances, this Court is of the considered opinion that even upon a comprehensive evaluation of the oral evidence adduced by the prosecution; no case of cheating is made out against the appellant. The conviction under Section 417 of the Indian Penal Code, being founded on insufficient and unreliable evidence and in the absence of proof of dishonest intention at the inception, is legally unsustainable and liable to be set aside.
57. In view of the above facts and circumstances and discussion made above I am of the opinion that the impugned judgment and order of conviction passed by the learned Trial Court is liable to be set aside.
58. Thus, the instant appeal be and the same is hereby allowed.
59. Accordingly, the impugned judgment and order of conviction dated 21.04.1993 passed by the learned Trial Court in connection with Sessions Trial Case No. VI/May/1992 arising out of Bhupatinagar P.S. Case No. 45 of 1990, dated 29.05.1990 is hereby set aside.
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C.R.A. 107 of 1993
60. The appellant is on bail. He is to be discharged from his respective bail bond and be set at liberty if he is not wanted in connection with other case.
61. In accordance with the mandate of Section 437A of the Code of Criminal Procedure (Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023), it is incumbent upon the appellant to furnish bail bonds, accompanied by suitable sureties. Such bonds, once executed, shall remain in full force and effect for a period of six months, ensuring the presence of the appellant as required by law and securing the due administration of justice.
62. Let a copy of this judgment along with the Trial Court record be sent down to the Trial Court immediately.
63. Urgent Photostat certified copy of this order, if applied for, be given to the parties on payment of requisite fees.
(Prasenjit Biswas, J.)