Research › Search › Judgment

Kerala High Court · body

2010 DIGILAW 205 (KER)

Ismail Pillai v. Meera Sahib Abdul Jaleel

2010-03-09

P.S.GOPINATHAN

body2010
Judgment : The revision petitioner is the complainant in CMP.No.3508/1998 on the file of the Judicial Magistrate of the First Class-II, Nedumangad. It is a complaint filed against the respondents 1 and 2 alleging offence under Sec.420 IPC. It was alleged that on 24.10.1993, the first respondent approached the revision petitioner and borrowed a sum of Rs.8,50,000/- and that on 1.11.1993, a cheque for the said amount was issued. When the cheque was presented for collection it was returned bounced for two reasons; (1) insufficient funds and (2) drawer’s signature differed. Though a notice demanding discharge was caused, no payment was paid. Consequently, the first respondent was prosecuted alleging offence under Section 138 of the Negotiable Instruments Act in ST.No.105/1994 on the file of the Addl. Chief Judicial Magistrate, Thiruvananthapuram. During the course of trial, when the Manager of the Bank was examined, it was revealed that the cheque delivered to the revision petitioner was drawn on an account maintained by the second respondent. But it was signed by the first respondent. Ultimately, the first respondent was acquitted. 2. Thereupon, the revision petitioner preferred the complaint on hand before the Judicial Magistrate of the First Class, Nedumangad. The learned Magistrate recorded the statement of the power of attorney holder and three witnesses. Ext.C1 was also marked. The learned Magistrate, going by the pleadings and the materials disclosed in the statement of the witnesses arrived at a finding that no offence was disclosed. Consequently, the complaint was dismissed under Sec.203 of the Code of Criminal Procedure. Assailing the legality, correctness and propriety of that order, this revision petition was filed. 3. The materials disclosed by the pleadings in the complaint and the statement of the witnesses would show that the first respondent borrowed Rs.8,50,000/- to meet the marriage expenses of her daughter. At the time when the loan was availed it was promised that he would discharge the liability after selling his property. According to the revision petitioner, after one week, the cheque in dispute was issued with dishonest intention to deceive the revision petitioner. From the facts on record, it is not disputed that the cheque in dispute was issued for the discharge of the existing liability. According to the revision petitioner, after one week, the cheque in dispute was issued with dishonest intention to deceive the revision petitioner. From the facts on record, it is not disputed that the cheque in dispute was issued for the discharge of the existing liability. In that circumstance, even if the allegation that the cheque was drawn on an account maintained by the second respondent and that it was signed by the first respondent, no offence under Sec.420 IPC would be attracted. 4. For a correct understanding, it could be appropriate to read Section 415 IPC which defines cheating and Section 420, the penal provision for which the prosecution was launched. “Sec.415. Cheating:- 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”. “Sec.420. Cheating and dishonestly inducing delivery of property:- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted 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.” Here, in this case, the summary of the allegation is that the first respondent drew a cheque on an account maintained by the 2nd respondent and delivered it to the revision petitioner in discharge of an existing liability. Giving regard to the ingredients to constitute offence under Sec.420 IPC, assuming that the first respondent suppressed that the cheque in dispute was drawn by the first respondent on an account maintained by the second respondent, it would not amount to an offence under Sec.420 IPC, because there is no pleadings at all to the effect that at the time when the cheque was delivered, any property was parted or that there was any inducement to part with the property; or made, altered, destroyed the whole or any part of a valuable security, or anything which is signed or sealed and which is capable of being converted into a valuable security so as to cheat the revision petitioner. Probably, with the pleadings on record, in the process of issuing cheque in discharge of existing liability, it can be assumed that the first respondent might have played fraud. Such fraud would not establish an offence under Sec.420 IPC. In the above circumstance, I find that the learned Magistrate was correct in dismissing the complaint. There is no error or illegality or impropriety so as to rectify in exercise of the revisional powers. The revision petition is devoid of merit. It is accordingly dismissed.