Shantilal vs State

Samvatsar, J.—This is a criminal revision filed by one Shantilal son of Nathulal Jain who has been convicted u/s 420 Indian Penal Code and sentenced to rigorous imprisonment for 6 months and a fine of Rs. 30.

The fact of the prosecution case are as follows:

On 13-7-1952 the Petitioner purchased from one Shrikishan Dinkar a radio for Rs. 475. He paid Rs. 50 forthwith and for the balance gave a post-dated cheque dated the August 3, 1952.

On 24-7-1952 the accused pledged the radio with one Vithaldas P.W.2 and raised a loan of Rs. 200 and immediately thereafter left Indore on the pretext that he was going to attend to his ailing mother. The cheque was presented to the Bank by Shrikishan but it was not honoured and was returned with the endorsement "refer to drawer".

On 5-8-1952 Shrikishan Dinkar lodged a report of this occurrence at Sarafa Police Station, whereupon the necessary investigation was made by the Police and the accused was put up for trial. He was found guilty u/s 420, Indian Penal Code by the Additional City Magistrate, Indore and sentenced to suffer rigorous imprisonment and fines as stated above.

The accused preferred an appeal to the Sessions Judge, Indore against his conviction and sentence but met with no success. Hence he has filed this revision application to the High Court.

The material facts of the prosecution case are no longer in dispute and the only point raised this appeal is whether conviction u/s 420, Indian Penal Code can be supported, thereon. Mr. S.R. Verma the Counsel for the Petitioner contended that the failure of the accused to prove funds for this post-dated cheque only amounted to a breach of the promise to pay and created a civil liability but it did not constitute an offence u/s 420, Indian Penal Code.

In support of his arguments Mr. Verma relied on- ''R.S. Ratra v. Ganeshdas'' AIR 1940 Lah 93 (A) and - ''Chidambaram Chettiar v. Shanmug-(sic) AIR 1938 Mad 129 (B). The learned Government Advocate on the contrary urged that the accused was in the habit of issuing cheques without providing for balance to meet them and has been properly convicted.

There is one important fact brought in the prosecution evidence which deserves to be noted before discussing the question of law. It has transpired in the evidence of P.W. Govind Maratha, the Assistant Accountant in the Cloth Market Branch of the Bank of Indore, that as many as 14 cheques issued by the Petitioner were dishonoured between 6-6-1952 to 11-9-1952, and that the Bank had on 31-7-1952 served a notice P/8, to the Petitioner and had asked him to close his account with the Bank. The present case will have to be examined in the back ground, of these events.

Before proceeding further I may state that the authorities cited by Mr. Verma have no application to the facts of this case, in - ''AIR 1938 Mad 129 (JJ)'', the accused was being prosecuted for having failed to honour a post-dated cheque, which was issued by him in payment of the price of the goods already received. The High Court of Madras therefore held that there was only a breach of contract and no criminal offence was committed by the accused.

The Lahore case of - ''AIR 1940 Lah 93 (A)'', was also a case where the accused received some money from the complainant and when pressed for repayment issued a post-dated cheque, which he failed, to meet. There was in both these cases no delivery of goods or property at the time when the cheque was given. The present case is not a case of any existing liability which was sought to be wiped out by a post-dated cheque. Here the radio was given on the assurance and representation that the cheque for its price would be honoured on the due date.

A distinction must be drawn between a case, where a post dated cheque is given to discharge an existing liability and a case where it is issued against delivery of goods, property or cash with an assurance that it will be met on being presented to the Bank on the due date and in due course. In the first case the failure to provide the balance is merely a breach of promise whereas in the latter it may have different consequences. Intention of the drawer at the time the cheque is issued is a material test and if it appears from the circumstances of the drawer that he did not expect that the cheque would be cashed in normal course it would be prima facie proof of the intention to cheat.

Illustration (f) to Section 415, Indian Penal Code, gives a clue to the mind of the Legislature in such matters. The said illustration is as follows:

A intentionally deceives Z into a belief that means to repay any money that Z may lend him and thereby dishonestly induces Z to lend him money, not intending to repay it. A cheats.

It is clear from this illustration that what is material is the intention of the drawer at the time the cheque is issued. This intention has to be gathered from the facts on record and if from them it is established that the failure to meet the cheque was not accidental but was a consequence expected by the accused, the presumption would be that the accused intended to cheat. The High Court of Bombay had dealt with a similar case in - Emperor Vs. Keshavji Madhavji, .

That was a case where the accused induced the complainant to advance a loan to them and gave a post-dated cheque representing to him that the cheque would be cashed on the due date. The High Court held that the accused were guilty and upheld their conviction. The learned Judge summed up the position at page 181 as follows:

What the prosecution has to do, I take it, in a case of this kind is to establish facts which point prima facie'' to the conclusion that the failure to meet the cheque was not accidental but was a consequence expected and therefore intended by the accused. It will then be for the accused to establish any facts there may be in his favour which are specially within his Knowledge and as to which the prosecution could not be expected to have any information.

In the present case it does not appear that the accused expected, that the cheque given to Shrikishan would be cashed in due course and it cannot be said that it was accidently dishonoured. The accused had given several cheques which were due to be cashed, between 6-6-1952 to 11-9-1952 and the Bank itself was so much tired that it had to request the accused to close his account. Under the circumstances it could not be said that the accused expected that the cheque would be cashed in clue course and intended to meet it when it became due on 3-8-l952.

There is then the further fact that oh 24-7-1952, even before the price was paid, the radio was pledged by the accused with one Vithaldas and borrowed Rs. 200-0-0 from him. This amount was also not given to the complainant or deposited in Bank but was used otherwise. It is clear from the conduct of the accused and the circumstances of the case that the accused gave the cheque to the complainant without intending to meet it. In my opinion representation of the accused that the cheque would be cashed was dishonest and fraudulent.

The complainant Shrikishan had delivered the radio, believing that the cheque would be honoured on the due date. I am satisfied that the accused is guilty of an offence u/s 420, Indian Penal Code and has been rightly convicted.

There are no grounds to interfere in revision and the application is hereby dismissed.