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2014 DIGILAW 4562 (MAD)

R. Selvaraj v. Murugesan

2014-12-10

R.S.RAMANATHAN

body2014
JUDGMENT R.S. RAMANATHAN, J. 1. The complainant in C.C. No. 334 of 2004 on the file of the Judicial Magistrate, Kangayam is the appellant. He filed a private complaint against the respondent stating that the respondent has committed an offence punishable under Section 138 of the Negotiable Instruments Act (for short N.I. Act). 2. During trial, he filed a Petition for alteration of charge from Section 138 of the N.I. Act to Sections 417, 420 and 422 of the IPC and that was allowed and the accused/respondent herein was questioned under Section 313 Cr. P.C. in respect of charges under Sections 417, 420 and 422 of the IPC and he denied the same. The trial Court acquitted the respondent under Sections 417, 420 and 422 of the IPC. Aggrieved by the same, this Appeal is filed by the complainant/appellant. 3. Mr. N. Manokaran, learned counsel for the appellant submitted that the trial Court without properly appreciating the fact that even though the offences under Sections 417, 420 and 422 of the IPC were not made out, having regard to the evidence adduced, the appellant has proved the charge under Section 138 of the N.I. Act and therefore, the trial Court ought to have convicted the respondent for the offence under Section 138 of the N.I. Act by invoking the provisions of Sections 221 and 222 of the Cr. P.C. and therefore, the Appeal has to be allowed by convicting the respondent for having committed the offence under Section 138 of the N.I. Act. He submitted that the signature in the cheque was admitted and the appellant also proved that the respondent had no funds and with an intention to cheat the appellant, he had given a different signature in the cheque and therefore, the cheque was returned with an endorsement signature differs. As it is also proved that, on the relevant date, the respondent had no sufficient funds in his account, the appellant has proved the ingredients of Section 138 of the N.I. Act and therefore, the trial Court ought to have convicted the respondent for the said offence. As it is also proved that, on the relevant date, the respondent had no sufficient funds in his account, the appellant has proved the ingredients of Section 138 of the N.I. Act and therefore, the trial Court ought to have convicted the respondent for the said offence. He further submitted that the defence of the respondent that the cheque was lost and he gave a complaint was not proved and admittedly, the complaint was given after the cheque was presented for collection and only to defeat the right of the appellant, the complaint was said to have been given and that was not spoken to by the respondent and DW.1 was not a competent person to give evidence regarding the complaint given by the respondent and therefore, under Section 118 and 139 of the N.I. Act, the trial Court ought to have drawn presumption in favour of the appellant and convicted the respondent for offence under Section 138 of the N.I. Act even though the offences under Section 417, 420 and 422 of the IPC were not made out. 4. On the other hand, the learned counsel for the respondent submitted that though initially, a case was filed under Section 138 of the N.I. Act and the evidence of the complainant was given for that offence, thereafter, at the instance of the complainant, the charge was altered from Section 138 of the N.I. Act to Sections 417, 420 and 422 of the IPC. Thereafter, the respondent was questioned under Section 313 of the Cr. P.C. with regard to those offences, and he denied the guilt of the offences. The trial Court rightly held that the complainant/appellant failed to prove the ingredients regarding those offences and acquitted the respondent. Therefore, it is not open to the complainant/ appellant to contend now that the trial Court ought to have convicted the respondent for offence under Section 138 of the N.I. Act. He also submitted that the same cannot be done by invoking Sections 221 and 222 of the Cr. P.C. 5. Heard the learned counsel for the appellant as well as respondent and perused the materials available on record. 6. He also submitted that the same cannot be done by invoking Sections 221 and 222 of the Cr. P.C. 5. Heard the learned counsel for the appellant as well as respondent and perused the materials available on record. 6. On the basis of the above submissions, we will have to see whether the respondent could have been convicted for the offence under Section 138 of the N.I. Act by the trial court by invoking the provisions of Sections 221 and 222 of the Cr. P.C. on the basis of the evidence let in against the respondent. 7. As stated supra, initially, the complaint was filed by the appellant under Section 138 of the N.I. Act and while giving copies under Section 207 of the Cr. P.C. the respondent was questioned with regard to Section 138 of the N.I. Act. It is also submitted that PW.1 and PW.2 were examined and they let in evidence in respect of offence under Section 138 of the N.I. Act, and after the prosecution was closed, a Petition was filed by the appellant for alteration of charge from Section 138 of the N.I. Act to Sections 417, 420 and 422 of the IPC and that was allowed and the defence was called upon to examine witness and thereafter, the respondent/accused was questioned under Section 313 of the Cr. P.C. with regard to the charges under Sections 417, 420 and 422 of the IPC and he was acquitted by the trial Court. 8. Therefore, in these circumstances, it has to be seen whether by resorting to Sections 221 and 222 of the Cr. P.C. the trial court ought to have convicted the respondent for the offence under Section 138 of the N.I. Act. 9. To appreciate the contention of the learned counsel for the appellant, we will have to see Sections 221 and 222 of the Cr. P.C. which are as follows:- 221. Where it is doubtful what offence has been committed – (1) A single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once, or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. 222. When offence proved included in offence charged – (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. 10. In the judgment State of West Bengal and Another vs. Laisal Haque and Others, (1989) 3 SCC 166 , it has been held as follows:- “Section 221 is an exception to Section 218 of the Code viz. that for every distinct offence there should be a separate charge and every charge should be tried separately. Section 221 applies to a case only when from the evidence led by the prosecution it is doubtful which of several offences has been committed by the accused person. There must not be any doubt as to a single act or series of acts which constitutes the transaction, that is to say, there must not be any doubt as to the facts. The doubt must be as to the inference to be deduced from these facts, thus making it doubtful which of several offences the facts which can be proved will constitute.” 11. In the judgment Shamnsaheb M. Multtani vs. State of Karnataka, (2001) 2 SCC 577 , the scope of Section 221 of the Cr. P.C. was considered as follows:- “14. The doubt must be as to the inference to be deduced from these facts, thus making it doubtful which of several offences the facts which can be proved will constitute.” 11. In the judgment Shamnsaheb M. Multtani vs. State of Karnataka, (2001) 2 SCC 577 , the scope of Section 221 of the Cr. P.C. was considered as follows:- “14. Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal court to convict the accused of an offence which is not included in the charge. The primary condition for application of section 221 of the Code is that the court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits to convict the accused of the offence of which he is shown to have committed though he was not charged with it.” 12. Therefore, to invoke Section 221 of the Cr. P.C. the Court must have entertained a doubt at the time of framing of charge as to the nature of the offence committed by the accused having regard to the act or series of acts alleged against the accused. Further, as per Section 221 of the Cr. P.C. if a single act of series of acts is of such a nature giving raise to any doubt regarding the nature of offence committed by such individual act or series of acts, the accused will be charged of having committed all or any of such offences or he may be charged with the alternative of having committed some one of the offences. 13. According to me, Section 221 of the Cr. P.C. cannot be applied to the facts of this case. According to the appellant, the respondent borrowed a sum of Rs. 1,00,000/- from the complainant on 5.4.2003 for his urgent family purpose and executed a promissory note on that date on 5.6.2003, he issued a cheque towards that liability. 13. According to me, Section 221 of the Cr. P.C. cannot be applied to the facts of this case. According to the appellant, the respondent borrowed a sum of Rs. 1,00,000/- from the complainant on 5.4.2003 for his urgent family purpose and executed a promissory note on that date on 5.6.2003, he issued a cheque towards that liability. Therefore, there is no doubt regarding the nature of transaction and even as per the complaint, the cheque was dishonoured and therefore, the accused committed the offence under Section 138 of the N.I. Act and the complaint was filed after completing the formalities prescribed under Section 138 of the N.I. Act and initially, charge was also framed for the offence under section 138 of the N.I. Act. Therefore, neither the complainant nor the Court was in doubt at the time of framing charge regarding the offence with which the accused can be charged. As a matter of act, evidence was also let in by the appellant with regard to Section 138 of the N.I. Act. However, later for reasons best known to him, he filed a complaint to alter the charge from Section 138 of the N.I. Act to Sections 417, 420 and 422 of the IPC and that was allowed. Therefore, in such circumstances, having regard to the principles of law laid down by the Hon'ble Supreme Court by the above judgments, Section 221 of the Cr. P.C. cannot be invoked and it cannot be contended that the accused/respondent can be convicted for the offence under Section 138 of the N.I. Act though he was not charged with it. 14. Similarly, Section 222 of the Cr. P.C. cannot also be invoked by the appellant to convict the respondent for the offence under Section 138 of the N.I. Act. The scope of Section 222 of the Cr. P.C. is dealt with in the judgment reported in (2001) 2 SCC 577 supra, wherein it has been held as follows:- “16. What is meant by a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence.” 15. In the judgment Sukhram vs. State of Maharashtra, (2007) 7 SCC 502 it is held that when the ingredients of the two offences are vastly different, Section 222 of the Cr. P.C. cannot be applied and where two offences involved different elements and questions of facts, one of the offences cannot be said to be minor to the other. 16. Admittedly, the respondent was questioned after the evidence was let in under Section 313 of the Cr. P.C. with reference to the offences under Sections 417, 420 and 422 of the IPC, and he was acquitted. Admittedly, the ingredients of Section 138 of the N.I. Act and the ingredients of Section 420 are entirely different and therefore, when a person is charged for offences under Sections 417, 420 and 422 of the IPC and when the prosecution was not able to prove the charges for those offences, the accused cannot be convicted for the offence under Section 138 of the N.I. Act and the offence under Section 138 of the N.I. Act cannot be said to be minor offence for offences under Section 417, 420 and 422 of the IPC as the ingredients are different. Therefore, Section 222 of the Cr. P.C. cannot also be applied to the facts of the present case. 17. When the appellant was not able to bring out his case under Sections 221 and 222 of the Cr. P.C. the contention of the appellant that though the respondent cannot be convicted for offence under Sections 417, 420 and 422 of the IPC, he could have been convicted under Section 138 of the N.I. Act by invoking under Sections 221 and 222 of the Cr. P.C. cannot be accepted. I do not find any merit in the Appeal. 18. In the result, the judgment of the trial Court is sustained and the Criminal Appeal is dismissed.