Research › Search › Judgment

Andhra High Court · body

2001 DIGILAW 1485 (AP)

KANTAMANI SRIHARI RAO v. State Of A. P.

2001-11-19

ELIPE DHARMA RAO

body2001
ELIPE DHARMA RAO, J. ( 1 ) THIS criminal revision case is directed against the judgment in criminal Appeal No. 217 of 1996 on the file of the 1st Additional Sessions Judge, West godavari Division, at Eluru dated 24-2-1998, under which the learned Sessions Judge while setting aside the conviction and sentence imposed by the learned II Additional Judicial magistrate of First Class, Kovvur, against the revision petitioner accused for the offences under Sections 403 and 406 IPC, altered the conviction of the revision petitioner-accused from 420 IPC to 417 IPC and sentenced him to undergo rigorous imprisonment for one year and to pay to pay a fine of Rs. 3000/ -. ( 2 ) THE revision petitioner herein is the accused. ( 3 ) THE case of the prosecution in brief is that on 17-9-1987, while the then Chief minister of Andhra Pradesh late Sri n. T. Rama Rao was addressing a public meeting at Gopalapuram, the revision petitioner-accused with a fraudulent and dishonest intention induced him to believe him as a social worker, Secretary, Treasurer and Correspondent of the Welfare association of India, Kovvur, the object of which was to collect donations from its s members and public and to remit the funds to the Chief Minister s Relief Fund, and that he handed over a post dated cheque dated 30-12-1987 for Rs. 5 lakhs towards the Chief Minister s Relief Fund and that when the said cheque was presented in the bank for encashment it was dishonoured for insufficiency of funds and during the investigation it was revealed that the revision petitioner-accused issued the above cheque not on the account of the welfare Association of India, but on the account of his proprietary concern viz. , sri Radha Krishna Traders, Kowur having only an amount of Rs. 295-70 ps. only to his credit. Hence he was charge-sheeted for the offences punishable under Sections 403,406, 420 and 468 IPC, ( 4 ) DURING trial, to bring home the guilt of the revision petitioner-accused, the prosecution examined as many as six witnesses and got marked Ex. P1 to Ex. P9. No oral or documentary evidence was adduced on the side of revision petitioner-accused. Hence he was charge-sheeted for the offences punishable under Sections 403,406, 420 and 468 IPC, ( 4 ) DURING trial, to bring home the guilt of the revision petitioner-accused, the prosecution examined as many as six witnesses and got marked Ex. P1 to Ex. P9. No oral or documentary evidence was adduced on the side of revision petitioner-accused. ( 5 ) THE learned II Additional Judicial Magistrate of First Class, Kowur upon consideration of the entire material on record found the revision petitioner-accused guilty of the offences under Sections 403, 406 and 420 IPC and accordingly convicted and sentenced him to undergo rigorous imprisonment for one year on each count and further sentenced to pay a fine of rs. 3000/- on each count and in default to undergo simple imprisonment for three months and ordered the sentences to run concurrently. Aggrieved by the said conviction and sentence, the accused preferred appeal in Criminal Appeal No. 217 of 1996 before the Sessions Court, West godavari Division, Eluru. The learned 1st additional Sessions Judge, Eluru by his judgment dated 24-2-1998, while setting aside the conviction and sentence imposed against the revision petitioner-accused for the offences under Sections 403 and 406 ipc, altered the conviction recorded by the learned Magistrate against the revision petitioner-accused to that of 417 IPC from 420 IPC and accordingly sentenced him to undergo one year rigorous imprisonment and to pay a fine of Rs. 3000/ -. Aggrieved thereby, the present revision has been preferred by the accused. ( 6 ) THE contention of the learned Counsel for the petitioner is that there was no fraudulent or dishonest intention on the part of revision petitioner-accused in issuing the cheque and that mere issuing a cheque without there being any amount will not amount to cheating. It is contended that there is no legal evidence on record to show that the petitioner mis-appropriated the amounts received by way of donations to the Welfare Association. It is -contended that the learned Appeal Judge without taking into consideration the said facts has wrongly came to the conclusion that the accused is guilty of the offence of cheating and therefore, the conviction and sentenced recorded by the learned appellate Judge is liable to be set aside and the revision petitioner-accused is entitled for acquittal. ( 7 ) ON the other hand the learned Public Prosecutor supported the judgment of the learned Sessions Judge. ( 7 ) ON the other hand the learned Public Prosecutor supported the judgment of the learned Sessions Judge. ( 8 ) I have gone through the entire material on record. The issuance of the cheque by the revision petitioner-accused and its dishonour is not in dispute. The contention of the learned Counsel for the petitioner is that the revision petitioner- accused issued the cheque towards the chief Minister s Relief Fund and there was no dishonest or fraudulent intention on his part in issuing the said cheque and that mere issuing the cheque without having any amount, does not amount to cheating. He contended that the requisite ingredients that are required to constitute the offence of cheating are not made out in this case. ( 9 ) THE learned Counsel for the petitioner in support of his contention relied on a judgment of this Court in P. Eswara reddy v: State of Andhra Pradesh, 1986 crl. L. J, 207, wherein a learned single judge of this Court Justice M. Jagannadha rao, (as he then was) while dealing with sections 415 and 420 IPC referring to various authorities of the Supreme Court and other High Courts held that the dishonour of a cheque for an antecedent debt does not amount to cheating and thus no offence either under Section 415 or section 420 IPC could be said to be made out. It was further held that mere taking of the cheque by the complainant for encashment does not, in case of its dishonour, amount to any damage to the body, mind, reputation or property of the complainant under the Indian law. ( 10 ) THE facts of the above case are that the accused therein was the buyer and he obtained possession of the vehicle (Ashok Leyland) by paying 10% of the consideration as per terms of the contract with the seller (Complainant) and the complainant issued "f" Form and sale letter on representation by the accused that he could not register the vehicle or arrange for finance for want of these documents. However, the cheque for further sum as given by the accused was dishonoured when presented to the Bank by the complainant. In the facts and circumstances of the case, his Lordship of this Court held the dishonour of a cheque for an antecedent debt does not amount to cheating. However, the cheque for further sum as given by the accused was dishonoured when presented to the Bank by the complainant. In the facts and circumstances of the case, his Lordship of this Court held the dishonour of a cheque for an antecedent debt does not amount to cheating. ( 11 ) HIS Lordships in the above judgment while dealing with Sections 415 and 420 IPC referred to a judgment of the madras High Court in Chidambaram chettiar v. Shanmugham Pillai, 39 Cri. LJ 261, wherein it was pointed out that body , mind, reputation and property are the four cardinal assets of humanity and that before him there was no allegation that by the dishonour of the cheque issued for payment of antecedent debts, the complainant had incurred any harm or damage to his body, mind, reputation and property. ( 12 ) HIS Lordships of this Court also referred to the judgment of Kerala High court in K. Surendran v. P. Ramachandran nair, 1967 Mad LJ (Cri) 793, wherein his lordship K. K. Mathew, (as he then was) had an occasion to consider the question whether the fact that the complainant presented the cheque at the bank and was told that the cheque is dishonoured is, in itself cheating under Section 415 IPC. The question was whether that brought the case within the words "to do or omit to do anything which he would not do or omit if he were not so deceived" and whether it caused damage to the complainant s body, mind or reputation. Negative the plea of the prosecution, the learned Judge observed : "can it be said that this act has caused any damage to the complainant s body, mind reputation or property". I think not. His position after taking the cheque and its dishonour was the same as it was before. The liability of the accused to the complainant for the amount remained the same after and before the dishonour of the cheque. It cannot, therefore, be said that by taking the cheque the complainant sustained any damage to his body, mind reputation or property. There are no allegations in the complaint that by taking the cheque on the faith of the complainant s implied representation of the accused, the complainant sustained any damage in his mind, body, reputation or property. It cannot, therefore, be said that by taking the cheque the complainant sustained any damage to his body, mind reputation or property. There are no allegations in the complaint that by taking the cheque on the faith of the complainant s implied representation of the accused, the complainant sustained any damage in his mind, body, reputation or property. If that be so, the complaint does not disclose the elements necessary to constitute the offence of cheating". ( 13 ) THEREFORE, the learned Judge relying on the above judgment held that mere taking of the cheque by the complainant for encashment does not, in case of its dishonour amount to any damage to the body, mind reputation or property of the complainant under the Indian law. ( 14 ) NOW in the light of the above judgment of this Court, and in view of the contentions of the learned Counsel for the revision petitioner-accused, the only question that has to be considered is whether the act of the revision petitioner-accused in issuing the cheque without there being sufficient amount and its subsequent dishonour when presented in the bank for encashment amounts to cheating as defined under Section 415 IPC. ( 15 ) AT this stage, it is expedient here to extract Sections 415 IPC and 420 IPC, thus : section 415 IPC: "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 or omit to do anything which he would not do or omit, if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat" section 420 IPC: " Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter to destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being covered into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. " ( 16 ) THEREFORE, from the above definitions to constitute the offence of cheating, one must deceive a person, fraudulently and dishonestly induce such person in such a manner 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 or omit to do anything which he would not do or omit, if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. ( 17 ) ADMITTEDLY, in the present case the revision petitioner-accused gave the post dated cheque towards the Chief Minister s relief Fund and when the same was presented in the bank for encashment, it was dishonoured for insufficiency of amount in the account of the revision petitioner-accused. Therefore, in the light of the judgment of this Court in P. Eswara Reddy s case cited supra, the act of issuing the cheque on the part of the petitioner and its dishonour subsequently has not caused any damage or harm to any person in the office of the chief Minister or to the Chief Minister himself to whom it was issued either in body, mind, reputation or property. The observation of the appellate Judge, therefore, that the damage or harm to the office of the chief Minister has to be taken into consideration is in my considered view not correct. ( 18 ) THEREFORE, for the foregoing reasons, and in the light of the judgment of this Court relied on by the learned Counsel for the petitioner in P. Eswara Reddy s case cited supra, and taking into account the facts and circumstances, it must be held that the mere issuance of the cheque by the revision petitioner-accused and its dishonour does not amount to cheating and therefore i find that the accused is not guilty of the offence under Section 417 IPC as recorded by the learned appellate Judge and accordingly he is acquitted of the said offence. ( 19 ) IN the result, the criminal revision case is allowed and the conviction and sentence recorded by the learned 1st additional Sessions Judge, West Godavari at Eluru in Crl. Appeal No. 217 of 1996 dated 24-2-1998 against the revision petitioner is hereby set aside.