IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 570 of 2000()
1. JNANASEKHARAN
... Petitioner
Vs
1. CHELLAMMAL
... Respondent
For Petitioner :SRI.K.A.JALEEL
For Respondent :SRI.B.S.SURAJ KRISHNA
The Hon'ble MR. Justice V.K.MOHANAN
Dated :28/10/2008
O R D E R
V.K.MOHANAN, J.
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Crl.A.No. 570 of 2000
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Dated this the 28th day of October, 2008
J U D G M E N T
This is an appeal preferred by the complainant challenging the
order of acquittal passed by the lower appellate court in favour of first
respondent herein/accused by setting aside the conviction and sentence
passed against the appellant under Section 420 I.P.C.
2. Originally, the appellant herein preferred a complaint before
the Judicial First Class Magistrate Court-II, Kochi against the first
respondent/accused for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 and Section 420 of the Indian Penal
Code. The case of the complainant is that the accused borrowed a sum of
Rs.13,000/- from the complainant for the purpose of purchasing a property
and when the money was demanded back, the accused issued a cheque
for Rs.13,000/- of Account No.14028 of Canara Bank, Thoppumpadi
Branch dated 11.5.1995. Accordingly, the complainant presented the
cheque for collection to the State Bank of Travancore, Panayappally
branch, but the same was bounced with the endorsement ‘account closed’.
Thus, the cheque was returned with Ext.P2 Memo on 13.5.1995. The
complainant caused to send a notice through lawyer on 26.5.1995 to the
accused intimating her the bouncing of the cheque and demanding the
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payment of the amount. According to the complainant, the accused did
not accept the said notice and it was returned. Thus, the accused made
to believe the complainant that there is money in her account and when
the cheque was presented, it would be encashed and it had been done
by the accused with an ulterior motive for cheating the complainant.
Hence, according to the complainant, the accused has committed the
offences punishable under Section 138 of the N.I.Act and Section 420 of
the I.P.C. On filing the complaint and on recording the sworn statement
of the complainant, the case was taken on file as C.C.No.725 of 1995
for the said offence. When the accused appeared in pursuance of the
processes issued from the trial court based upon the allegation in the
complaint, a charge under Section 420 of I.P.C. was framed and read
over and explained to her to which she pleaded not guilty. The accused
took a stand of total denial. During the trial, Pws.1 to 4 were examined
and Exts.P1 to P4 documents were marked as documentary evidence.
From the side of the defence, Dws.1 and 2 were examined and Exts.D1
and D2 were marked. It is the case of the accused that she had lost
her cheques and the fact was intimated to her bank and the account
was accordingly closed. Thus, according to the accused, she had no
transaction with the complainant and no cheque was issued to the
complainant.
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3. Based upon the rival contentions and pleadings, the trial court
framed three issues for its consideration. Finally, the court below found
that though the cheque in question was dishonoured on 13.5.1995,
Ext.P3 lawyer notice was sent only on 2.6.1995 and therefore, the notice
was sent after the expiry of the statutory period of 15 days. So, it was
found by the trial court that the ingredients of Section 138 of the N.I.Act
are not attracted and therefore, the accused was found not guilty under
Section 138 of the N.I.Act. But, on the basis of the evidence adduced
during the trial, the trial court had found that, especially on the basis of
oral evidence of Pws.1 to 4, the accused borrowed the money from the
complainant and when claimed back, the accused issued Ext.P1 cheque
to the complainant making him believe that the said cheque would be
encashed. The trial court found that Ext.P1 cheque is dated 11.5.1995,
but the account maintained by the accused was closed on 14.7.1994.
Thus, according to the trial court, Ext.P1 cheque was issued on
11.5.1995 and at that time, the accused was fully aware that the account
to which Ext.P1 cheque is related has already been closed and further,
the complainant was made believe that the said cheque would be
honoured on presentation. Thus, on the basis of the above facts, the
trial court came into a conclusion that the issuance of cheque after
closing the account was enough to prove the deceitful act of the
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accused and her intention for wrongful gain by making loss to the
complainant. Thus, accordingly, it was held that the accused was guilty
under Section 420 of I.P.C. and after hearing her on the question of
sentence, she was sentenced to undergo rigorous imprisonment for one
year and also to pay a fine of Rs.5000/- and in default to undergo simple
imprisonment for six months. It was also ordered that if the fine amount
was realised, it would be paid as compensation to the complainant
under Section 357 of the Code of Criminal Procedure.
4. Though the accused was acquitted of the offence under
Section 138 of the N.I.Act., the complainant did not file any appeal
against the acquittal challenging the order passed by the trial court.
5. Aggrieved by the order of conviction and sentence of the
trial court, the accused preferred Crl.A.No.103 of 1998 before the
Sessions Court, Ernakulam. By judgment dated 28.2.2000 in
Crl.A.No.103 of 1998, the IInd Additional Sessions Court acquitted the
accused of the charge under Section 420 of I.P.C. It is the above order
of acquittal, challenged in this appeal.
6. I have heard learned counsel for the appellant as well as
first respondent/accused.
7. Though counsel for the appellant submits that even though
the cheque is dishonoured for the reason ‘account closed’, the offence
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under Section 138 of the N.I.Act will lie. I need not go into the
correctness or legality of the finding arrived on by the trial court in favour
of the accused acquitting her of the offence under Section 138 of the
N.I.Act since the complainant has not filed any appeal against such
acquittal.
8. Against the order of acquittal passed by the lower appellate
court acquitting the accused of the offence under Section 420 I.P.C., the
counsel submits that Ext.P1 cheque was issued by the accused on
11.5.1995 and at the time of issuance of cheque, she was aware of the
fact that the account maintained by her to which the cheque in question
connected, was closed and therefore, the cheque in question was
issued with dishonest intention and therefore, the trial court had rightly
found the accused was guilty of the offence under Section 420 I.P.C.,
but the lower appellate court interfered with such order of conviction
without any valid reason.
9. On the other hand, learned counsel for the first respondent
submits that the transaction itself was not based upon Ext.P1 cheque.
Ext.P1 cheque was issued subsequently and even if the allegation of the
complainant is accepted as true regarding the borrowal by the accused,
no offence under Section 420 will be attracted. In support of the above
contention, the learned counsel invited my attention to the decisions of
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this Court reported in Surendran v. Ramachandran Nair [1967 KLT
804], Sreethara Kamath v. Jawala Prasad Gupta [1970 KLT 45],
Shadili v. Uthaman [1988(2) KLT 191] and Rama Gupta v.
Bakeman’s Home Products [1992(1) KLT 765].
10. I have carefully considered the contentions advanced by
both counsel and also perused the records.
11. Section 415 of I.P.C. deals with cheating. Section 415
reads that “the person, 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 so or omit to do
anything which he would not do or commit if he were not so deceived and
which act or commission causes or is likely to cause damage or harm to
that person in body, mind, reputation or property is said to ‘cheat’ “. In
the present case, even according to the complainant, if such allegation
is admitted as true for the sake of argument, the borrowal was much
prior to the issuance of Ext.P1 cheque and it cannot be said that an
amount of Rs.13,000/- was paid by the complainant on representation
made by the accused by giving Ext.P1 cheque. Admittedly, even
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according to the complainant, the cheque in question was issued by the
accused on persistent demand made by the complainant for repayment
of the amount borrowed and it was that the cheque was dishonoured for
the reason ‘account closed’. From the averments and going by the case
of the complainant, it can be seen that there is no wrongful gain by the
accused by issuing such cheque. Thus, the lower appellate court had
rightly observed that in order to attract Section 420 of I.P.C., mens rea
was there and it was necessary to show that by issuing Ext.P1, the
appellant obtained wrongful gain and complainant/PW1 sustained
wrongful loss. The above finding of the lower appellate court is
absolutely correct and legal and therefore, no interference of this Court
is warranted and consequently, the appeal fails and is liable to be
dismissed.
In the result, there is no merit in the appeal and the same is
dismissed. There is no order as to costs.
V.K.Mohanan,
MBS/ Judge
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V.K.MOHANAN, J.
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Crl.A.NO. 570 OF 2000
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J U D G M E N T
DATED: 28-10-2008
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