C. Ramanathan vs State

P. D. Dhinakaran, J.

Heard both the parties.

The above revision is directed against the order dated 28.8.94 in C.A.No.90 of 1994 on the file of the learned Additional Sessions Judge,

Madurai, confirming the order of conviction and sentence dated 9.6.94 in C.C.No.1023 of 1994 on the file of the learned Judicial Magistrate,

Madurai, convicting the petitioner u/s 417, I.P.C and sentencing him for six months rigorous imprisonment with a fine of Rs. 1,000 in default of

which, one month rigorous imprisonment in addition.

The petitioner; who was A1, was facing a trial in C.C.No.1023 of 1992 before the learned Judicial Magistrate No.1, Madurai, along with four

other accused namely, A2 to A5, with regard to an alleged occurrence said to have taken place on 5.3.90, wherein, the petitioner, namely, A1,

borrowed a sum of Rs.57,000 agreeing to repay the same after one year with an interest of Rs.17,000 for the purpose of his film distribution

business and issued a cheque dated 22.6.93 for the entire amount, namely Rs.74,000.

According to the prosecution, the petitioner A1 was not having sufficient funds at the time of issuing the post-dated cheque dated 22.6.93 on

5.3.90. It is also relevant to mention that other accused, namely A2 to A5 were discharged by the learned Judicial Magistrate No.1, Madurai, by

his order dated 23.6.93. However, in the light of the evidence of PW1 to PW5 and Ex.P1 to P4, the learned Judicial Magistrate No.1, Madurai,

by his order dated 9.6.94, in C.C.No.1023 of 1994 convicted the petitioner for the offence punishable u/s 417, I.P.C. and sentenced him for six

months rigorous imprisonment with a fine of Rs.1,000 in default of which, one month rigorous imprisonment in addition.

On appeal in C.A.No.90 of 1994, the learned Additional Sessions Judge, Madurai, by his order dated 28.2.94, confirmed the said order of the

learned Judicial Magistrate, Madurai dated 9.6.94 in C.C.No.1023 of 1994. Hence the above revision.

Mr. Ashok Kumar, learned counsel for the petitioner, placing reliance on the decision in Thiruganam v. G. Chandrasekaran1989 L.W. (Crl.)

370 contends that the order of conviction and sentence of the Courts below are erroneous and illegal. The learned counsel for the petitioner

contends that the mere want of sufficient funds at the time of issuing the post-dated cheque on 22.6.91, namely, on 8.3.90, shall not constitute an

offence punishable u/s 417 I.P.C.

In this connection, it is relevant to refer the decision in Thiruganam v. G. Chandrasekaran1989 L.W. (Crl.) 370 wherein, it is held as follows:

In this case, the failure of the petitioner to make funds available in the bank for the post-dated cheques to be honoured, can, by no stretch of

imagination, be construed as a dishonest intention on his part to deceive the respondent and if at all, it will amount to a failure of the promises to

pay on a future date to give rise to a civil action. As such, the prosecution launched by the respondent before the Court below is liable to be

quashed.

The learned Government Advocate, appearing for the respondent, is not in a position to argue contra to the above well-settled principles laid

down by this Court.

Applying the rules laid down by this Court, in Thiruganam v. G. Chandrasekaran 1989 L.W. (Crl.) 370 I set aside the order of the Courts

below.

In the result, the revision is allowed. Consequently the fine already paid by the revision petitioners/accused is directed to be refunded to the

revision petitioners/accused and the bond executed by the revision petitioners/accused shall stand cancelled. However, there will be no orders as

to costs.