C.A. Vaidialingam, J.

1. The short point that arises for consideration in this appeal, by special leave, is whether the conviction of the appellant for an offence under Section 420, I.P.C. is justified.

2. The appellant, who was the first-accused and one Gopaldas were tried for offences punishable under Sections 420, 466, 468, 471 and 477-A all read with Section 120-B of the Indian Penal Code. The charges against both the accused were as follows :

"1. That between 21st October, 1959 and 25th May, 1961 you accused No. 1 Hiralal was working as Petition writer in Collectors Office compound at Pali, Rajasthan and you accused No. Gopaldas was working as a miscellaneous clerk in the office of the Superintendent of Police, Pali who was the motor driving licensing authority at Pali, Rajasthan, both of you in conspiracy agreed to do illegal acts, namely to forge motor driving licences and to pass them as genuine one and by such illegal means to cheat various persons by inducing them to pay you various sums of money.

2. That in pursuance of the above said agreement to do illegal acts and during the said period, you accused No. 1 came to Ahmedabad and cheated the 21 persons mentioned herein (names of the 21 persons referred to omitted) by dishonestly inducing them to pay you sums of money ranging from Rs. 100/- to 150/- on false representation to the effect that you were in a position to get valid driving licences from Pali, Rajasthan without giving any driving test or without even going to Pali or without giving medical examination.

3. That in pursuance of the agreement, namely, to do illegal acts, stated above, and during the above said period, you accused No. 2 at Pali forged 21 above-mentioned motor driving licences, purporting to be made by a public servant and purporting to bear the signature of Shri G. P. Pillania, intending to use them as genuine documents for the purpose of cheating.

4. That you both during the above said period and in pursuance of the said agreement to do illegal acts, used the above-mentioned 21 forged driving licences as genuine which both of you knew at the time of so using them to be forged documents.

5. And, in pursuance of the said agreement to do illegal acts and during the above said period you accused No. 2 being a clerk in the office of the Superintendent of Police, Pali, wilfully and with intent to defraud, altered and mutilated motor driving register of your office, namely, office of the Superintendent of Police, Pali, which was in your possession as a clerk in the said office.

6. Thereby you both committed offence punishable under Sections 420, 466, 468, 471 and 477-A all read with Section 120-B of the India Penal Code".

Both the accused denied the allegations made against them. The Sessions Court, by its judgment dated June 12, 1964 acquitted both the accused of the offences under Sections 466, 468 and 477-A, but convicted them under Sections 420 and 471 read with Section 120-B, IPC.

3. Both of accused filed appeals before the High Court. The High Court acquitted Gopaldas, the second accused, of all charges; it also set aside the conviction of the appellant of the offence under Section 471, IPC, but sustained his conviction under Section 420, IPC. The High Court has also held that the charge of conspiracy has not been established against both the accused and therefore Section 120-B does not come into the picture. For the offence under Section 420, IPC, the High Court has sentenced the appellant to undergo rigorous imprisonment for three months and to pay a fine of Rs. 200/- or in default to suffer further rigorous imprisonment for three months. The conviction of the appellant and sentence passed against him by the Sessions Court for the offence under Section 471 read with Section 120-B, IPC was set aside, as already noted, and he was acquitted of the said offence. The conviction of the appellant under Section 420, IPC is the subject of this appeal.

4. Mr. Keshwani, learned counsel for the appellant, urged that the High Courts reasoning for convicting the appellant under Section 420, IPC, is inconsistent with his acquittal under Section 471, IPC. The counsel has pointed out that the charge of conspiracy has been held in favour of the appellant. The High Court has also held that on the evidence it is difficult to come to the conclusion that the appellant knew or even had reason to believe that the licence in question bore a forged signature of the officer one Pillania. It is on this basis that the High Court held that the appellant has not committed the offence under Section 471, IPC. The counsel further urged that when once it had been held that the appellant had no reason to believe that the licence, Exhibit 48, given to the witness Rajaji is forged, there can be no question of the appellant being guilty of the offence of cheating under Section 420, IPC. One of the essential ingredients of the offence of cheating is the making of a false representation and that not having been established, conviction under Section 420 is illegal.

5. We have gone through the reasoning of the High Court in this regard. It has acquitted the appellant of the offence under Section 471, IPC on the specific finding that on the evidence it is difficult to come to the conclusion that the appellant knew or even had reason to believe that the licence in question, Exhibit 48, bore a forged signature of the officer Mr. Pillania. The High Court also is of the view that the appellants guilt or otherwise under Section 420, IPC will have to be considered only with reference to the licence Ex. 48 given to the witness Rajaji. Prima facie, we are inclined to accept the contention of the learned counsel for the appellant that when once the conviction of the appellant under Section 471, IPC has been set aside, the High Court was not justified in convicting him under Section 420, IPC. We have also gone through the evidence of Rajaji, Ex. 47 and his evidence does not establish any false representation having been made by the appellant. On the other hand, it is clear that Rajaji must have been well aware that he will not get a valid licence for driving motor vehicles. He has not gone to Pali and he has also failed in the driving test at Ahmedabad. Therefore, there is no question of the appellant having cheated Rajaji so as to be liable under Section 420, IPC.

6. Realising this difficulty, Mr. Dholkia, learned counsel for the respondent State, urged that the acquittal of the appellant by the High Court of the offence under Section 471, IPC is erroneous. It may be so, but, in the absence of an appeal by the State against the acquittal of the appellant of the offence under Section 471, IPC, we do not think we can permit the respondent to raise this ground of attack.

7. Mr. Dholkia next attempted to make out from the evidence of Rajaji that there has been a false representation by the appellant in the matter of obtaining a licence for him. We have already mentioned that the evidence of Rajaji does not make out any such false representation having been made by the appellant.

8. It follows that the conviction of the appellant by the High Court for the offence under Section 420, IPC is not correct. The appeal is allowed and the order of the High Court convicting the appellant under Section 420, IPC is set aside.