Kerala High Court
M.S.Sumathi vs P.T.Antony on 21 January, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941
Crl.Rev.Pet.No.4513 OF 2006
AGAINST THE JUDGMENT IN CRA 999/2005 DATED 21-08-2006 OF
ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM
AGAINST THE JUDGMENT IN CC 1257/2003 DATED 08-11-2005 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOCHI
REVISION PETITIONER/APPELLANT/ACCUSED:
M.S.SUMATHI, PROPRIETOR
BHARGAVI INDUSTRIES,
NADAKKAVU P.O.,, UDAYAMPEROOR.
BY ADV. SRI.C.R.SIVAKUMAR
RESPONDENTS/RESPONDENTS/COMPLAINANTS:
1 P.T.ANTONY,
PROPRIETOR, SAVITHA PRINTERS,
KAREETHARA P.O., KOCHI-16.
2 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
R1 BY ADV. SMT.K.INDU POURNAMI
R1 BY ADV. SRI.M.P.JAYAKUMAR
R1 BY ADV. SRI.SAJAN MANNALI
SMT. M.N. MAYA, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 21.01.2020, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.R.P.No.4513 OF 2006
..2..
ORDER
The revision petitioner is the accused in C.C.No.1257/2003 before the Judicial First Class Magistrate Court-I, Kochi and the appellant in Crl.A.No.999/2005 before the Additional Sessions Court, Ad hoc-II, Ernakulam. The 1 st respondent is the complainant before the Judicial First Class Magistrate Court-I, Kochi. The offence alleged against the petitioner is punishable both under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code.
2. The case of the complainant is that the accused borrowed an amount of Rs.50,000/- from the complainant and issued cheque dated 30.8.2002 for an amount of Rs.50,000/- drawn on the State Bank of Travancore, Udhayamperur Branch for a legally enforceable debt. When it was presented for collection, it was dishonoured for the reason 'signature incomplete'. Statutory notice was issued to the accused calling upon her to pay the amount within 15 days from the date of receipt of the statutory notice. Even though the accused Crl.R.P.No.4513 OF 2006 ..3..
received the alleged notice, she failed to repay the amount as promised. It is alleged that the accused deceived the complainant fraudulently and induced the complainant to part with the cheque to the accused and thereby the accused caused wrongful loss to the complainant. Thus, the accused has committed the offences both under Section 138 of the N.I.Act and Section 420 of the IPC.
3. By judgment dated 08.11.2005, the learned Magistrate convicted and sentenced the accused to undergo simple imprisonment for six months and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for one month for the offence punishable under Section 418 of IPC. The accused was acquitted for the offence punishable under Section 420 of IPC. Challenging the conviction and sentence, the accused preferred Crl.A.No.999/2005 before the Additional Sessions Court, Ad hoc-II, Ernakulam. By judgment dated 21.8.2006 the learned Sessions Judge confirmed the conviction and sentence imposed by the trial court under Section 418 of the IPC and dismissed the appeal. Feeling Crl.R.P.No.4513 OF 2006 ..4..
aggrieved the accused preferred this revision.
4. Before the trial court, PWs.1 to 3 were examined and marked Exts.P1 to P6 on the side of the complainant. DWs.1 to 3 were examined on the side of the accused.
5. Heard Sri.C.R.Sivakumar, learned counsel for the revision petitioner and Smt.M.N.Maya, learned Public Prosecutor for the 2nd respondent.
6. Going by the proceedings of this Court, it is seen that the learned counsel for the 1st respondent submitted on 01.8.2018 that the 1st respondent is no more. Hence, this Court issued direction to take necessary steps, if any. Despite several postings, no steps are seen taken.
7. PW1 stated that he received two cheques from the accused and he was very much aware that seal and signature were absolutely essential for encashing the cheque. There is no case for PW1 that Ext.P1 cheque was signed before him.
8. On a perusal of the oral evidence adduced by PW1, PW1 has no case that Ext.P1 cheque was issued for a legally enforceable debt and that statutory notice was issued to the Crl.R.P.No.4513 OF 2006 ..5..
accused calling upon her to pay the amount covered under Ext.P1 within 15 days from the date of receipt of notice. Though Section 138 of the N.I.Act was incorporated in the complaint, the complaint was filed essentially for the offence under Section 420 of IPC. It was not a complaint filed under Section 138 of the N.I.Act presumably for the reason that in view of the law in force then, a cheque dishonoured for the reason 'signature incomplete', an offence under Section 138 of the N.I.Act would not be attracted. Unless and until positive evidence was adduced by the complainant to take cognizance of the offence under Section 138 of the N.I.Act, the court below refused to take cognizance of the offence under 138 of the N.I.Act. Instead the trial court below had taken cognizance under Section 420 of the IPC and proceeded with the complaint as if the complaint was lodged by the complainant for cheating as defined under Section 420 of the IPC. It goes without saying that there was an implied dismissal of the complaint under Section 138 of the N.I.Act. The implied dismissal was not challenged in accordance with Crl.R.P.No.4513 OF 2006 ..6..
law. Instead the complainant proceeded with the complaint as if it was a complaint instituted under Section 420 of the IPC. After the trial, the learned Magistrate convicted and sentenced the accused for the offence under Section 418 of IPC and acquitted the accused for the offence punishable under Section 420 of the IPC. In fact, after the trial, the learned Magistrate was of the view that the offence under Section 420 of IPC was not attracted against the accused.
9. Going by the oral evidence of PW1, there is nothing on record to show that the accused deceived the complainant fraudulently or dishonestly to deliver any property to him or intentionally induced the complainant to do or omit to do anything which he would not do or omit if he were not so deceived as contemplated under Section 415 of IPC. In the absence of necessary ingredients to prove an offence of cheating as defined under Section 415 of IPC, the trial court went wrong in convicting the accused for the offence punishable under Section 418 of IPC. The element of cheating is absolutely lacking in this case. PW1 has no case that the Crl.R.P.No.4513 OF 2006 ..7..
offence under Section 138 of the N.I.Act is also applicable if an offence under Section 420 of IPC or 418 of IPC is not made out. Under the circumstances, the conviction and sentence imposed by the trial court under Section 418 of IPC as confirmed by the appellate court in appeal are liable to be interfered in revision.
In the result, this Crl.R.P. stands allowed. The conviction and sentence imposed by the Judicial First Class Magistrate Court-I, Kochi dated 08.11.2005 in C.C.No.1257/2003 as confirmed by the Additional Sessions Court, Ad hoc-II, Ernakulam in Crl.A.No.999/2005 dated 21.8.2006 stand set aside. The revision petitioner/accused is acquitted of the offence under Section 418 of IPC. Cancelling her bail bond, this Court directs that she be set at liberty.
Sd/-
N.ANIL KUMAR, JUDGE skj