Kerala High Court
K..Chandran vs Ponnappa Moothan on 28 September, 2012
Author: P.S.Gopinathan
Bench: P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
FRIDAY, THE 28TH DAY OF SEPTEMBER 2012/6TH ASWINA 1934
Crl.Rev.Pet.No. 650 of 2004 ( )
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CRL.A.393/2001 of II ADDL. SESSIONS COURT,PALAKKAD
CC.55/1999 of J.M.F.C.-II,PALAKKAD
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
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K..CHANDRAN, S/O.VASU EZHUTHASSAN,
PROPRIETOR, GEETHA MATCH INDUSTRIES, CHUNANGAD,
OTTAPALAM, PALAKKAD DISTRICT.
BY ADVS.SRI.PHILIP T.VARGHESE
SMT.SUNITHA M.
RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :
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1. PONNAPPA MOOTHAN, S/O.MADHAVA MOOTHAN,
29/400, ARAPPATHU VEEDU, LAL BAHADUR STREET,
MOOTHANTHARA, KOPPAM, PALAKKAD TALUK.
2. STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.SANTHEEP ANKARATH
R2 BY GOVERNMENT PLEADER SMT. MADHU BEN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 28-09-2012, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
DSV/-
"CR"
P.S.GOPINATHAN, J.
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Crl.R.P.NO. 650 OF 2004
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Dated this the 28th day of September, 2012
O R D E R
The revision petitioner was prosecuted by the first respondent before the Judicial Magistrate of the First Class-II, Palakkad in C.C.No.55/1999 alleging offence under Section 420 of the Indian Penal Code (IPC). By judgment dated 17/9/2001 the learned Magistrate arrived at a finding that offence under Section 415 IPC was established, convicted under Section 417 IPC and sentenced to simple imprisonment for one year and a fine of Rs.5,000/- with a default sentence of simple imprisonment for a period of three months.
2. Aggrieved by the above conviction and sentence, he preferred Crl.A.393/2001 before the Crl.R.P.NO. 650 OF 2004 2 Sessions Judge, Palakkad. The Additional Sessions Judge, Palakkad to whom the appeal was made over, by judgment dated 31/1/2004, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence this revision petitioner is preferred.
3. The allegations against the revision petitioner are that on 25/10/1998 he borrowed a sum of Rs.20,000/- from the first respondent agreeing to pay back on 13/11/1998. When demanded back the amount, the revision petitioner issued Exhibit P1 cheque dated 5/12/1998. Hoping that the 1st respondent could recover the debt, Exhibit P1 cheque was presented for collection. But it was returned dishonoured on 18/12/1998 with a statement that the account was closed long back. Crl.R.P.NO. 650 OF 2004 3 Though notice demanding discharge was caused, no payment was made.
4. The facts stated earlier would show that Exhibit P1 post dated cheque was issued in discharge of an existing liability. There is no mention that when Exhibit P1 cheque was issued, any money or property was parted in pursuance to any inducement. True that there is concealment of the fact that the account was closed when the cheque was delivered. Even if it is assumed that the closing of the account was fraudulently or dishonestly concealed from the first respondent, it would not amount to cheating punishable under Section 417 IPC. Cheating is defined under Section 415 IPC which reads as follows:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to Crl.R.P.NO. 650 OF 2004 4 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".
Explanation.-- A dishonest concealment of facts is a deception within the meaning of this section.
illustrations
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A Cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.
(d) A, by tendering in payment for an Crl.R.P.NO. 650 OF 2004 5 article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pleading as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.
(h) A intentionally deceives Z into a belief that A has performed A's part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats. Crl.R.P.NO. 650 OF 2004 6
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats."
Going by the definition of cheating quoted above with its explanation and illustrations, I find that the essential ingredient is fraudulent or dishonest inducing to deliver any property or money to any person or to consent that any person shall retain any property, or there must be intentional inducement to the person so deceived in 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. The cheating alleged in this case is regarding the issuing of Crl.R.P.NO. 650 OF 2004 7 Exhibit P1 concealing the fact that it was drawn on a closed account. Since Exhibit P1 cheque was issued in discharge of a so called existing debt, the concealing that the account was closed at the time when the cheque was issued would not satisfy the requirement of the definition of cheating under Section 415 IPC because there is no deception following the concealing. No damage or harm to the 1st respondent in body, mind, reputation or property was caused due to the concealing of the fact that the account was closed. There is no evidence to show that the 1st respondent sustained any harm or loss other than the inability to recover the debt which was existing when Exhibit P1 was issued. Neither there is any passing of money or property. It follows that the conviction and sentence under Section 417 IPC are not sustainable in law. Crl.R.P.NO. 650 OF 2004 8 Courts below failed in appreciating the facts and law.
In the result, this revision petition is allowed. While setting aside the conviction and sentence under challenge the revision petitioner would stand acquitted and set at liberty. The bail bond executed by him shall stand cancelled. In the event any amount is deposited towards the fine, that shall be refunded.
Sd/-
P.S.GOPINATHAN JUDGE /True copy/ P.A.To Judge DSV/-
Crl.R.P.NO. 650 OF 2004 9