Sukumaran vs State Of Kerala

Johnson John, J

This appeal is filed against the judgment dated 05.01.2008 in C.C. No. 482 of 2006 on the file of the Judicial First Class Magistrate-I,

Perinthalmanna challenging the acquittal of the accused persons of the offence under Section 417 r/w 34 IPC .

The appellant is the complainant and the complaint was filed on the allegation that the 1st accused borrowed Rs.80,000/- from the complainant for

her personal needs on 10.01.2006 agreeing to repay the same within 3 months. The 1st accused failed to repay the amount as agreed and after

repeated demands, the 1st accused on 27.4.2006 issued a cheque for Rs.80,000/- to the complainant and thereafter, when the complainant presented

the cheque for collection, the same was dishonoured for the reason ‘signature differs’ and also due to insufficiency of funds. On enquiry, the

complainant learnt that the 1st accused is not holding an account and that the said cheque was issued to accused No.2, who is the husband of the 1st

accused in an account maintained by him with Aliparamba Service Co-operative Bank limited. It is stated that accused Nos. 1 and 2 cheated the

complainant in furtherance of their conspiracy and they made the complainant to believe that the cheque is drawn from an account maintained by the

1st accused and they are thereby, alleged to have committed the offence as aforesaid.

Heard Smt. Sakeena Beegum, the learned counsel representing the learned counsel for the appellant on record, Sri. Rupesh Ravindran, the learned

counsel for respondents 1 and 2 and Sri. Sanal P. Raj, the learned Public Prosecutor appearing for the 3rd respondentâ€"State of Kerala.

In the trial court, PWs 1 and 2 were examined and Exhibits P1 to P8 were marked from the side of the complainant and no evidence adduced from

the side of the accused.

After considering the evidence on record and hearing both sides, the trial court found that the complainant has not succeeded in proving any

dishonest intention on the part of the accused at the time of borrowing the amount and that the cheque in question was issued only after 3 months from

the date of advancing money to the accused and since the complainant has no case that the accused persons made any dishonest inducement for

delivery of property as on the date of issuance of the cheque, the offence of cheating under Section 417 IPC is not attracted.

The learned counsel for the appellant argued that the evidence of PW1 regarding the subsequent conduct of accused Nos. 1 and 2 would show that

the accused were having fraudulent and dishonest intention at the time of borrowing the money and therefore, the impugned judgment is liable to be

set aside.

But, the learned counsel for respondents 1 and 2 pointed out that there is no averment in the complaint regarding any deception or dishonest

inducement from the side of the 1st accused at the time of borrowing the amount and there is also no averment in the complaint regarding the

presence of the 2nd accused at the time when the 1st accused borrowed money from the complainant and therefore, in the absence of any allegation

in the complaint regarding the essential ingredients of the offence of cheating as defined under Section 415 IPC, from the mere failure on the part of

the 1st accused to repay the amount as promised, it cannot be held that the offence under Section 417 IPC is attracted.

PW1 is the complainant and he deposed that on 10.01.2006, the accused persons borrowed Rs.80,000/- agreeing to repay the same within 3 months

and thereafter, they failed to repay the amount as agreed. Subsequently, the first accused issued Exhibit P1 cheque on 27.4.2006 and when he

presented the cheque for collection, the same was dishonoured for the reason ‘signature differs and insufficiency of funds’.

In cross examination, PW1 admitted that it was the 1st accused who borrowed the money and issued the cheque. However, he would say that the

2nd accused was also present at that time. PW1 admitted that it is not stated in the complaint that both the accused were present at the time of

borrowing the money and issuing the cheque. A perusal of the definition of ‘cheating' under Section 415 IPC shows that essential ingredients of

cheating are deception of a person and fraudulent or dishonest inducement to deliver any property or intentional inducement of a person to do or omit

to do anything which he would not do or omit if he were not so deceived, and the act or omission causes or is likely to cause damage or harm to that

person in body, mind, reputation or property.

In Hridaya Ranjan Prasad Verma vs. State of Bihar [(2000) 4 SCC 168], the Honourable Supreme Court held as under:

“15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends

upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test.

Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the

transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of

cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise

subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.â€​

In this case, there is no averment in the complaint to indicate any deception on the part of the 1st accused or that the 1st accused made any

fraudulent or dishonest inducement to deceive the complainant when she borrowed Rs.80,000/- on 10.01.2006. Admittedly, Exhibit P1 cheque was

issued only on 27.04.2006 and on that day, the complainant has not paid any amount to the accused persons.

It is well settled that in order to make out an offence under ‘cheating’, the complainant has to establish intention on the part of the accused

persons to cheat right from the beginning and as noticed earlier, in this case, the amount was borrowed on 10.01.2006 and the cheque was issued only

on 24.07.2006 and on the date of issuance of the cheque, there was no financial transaction between the accused and the complainant and therefore,

on a careful, re-appreciation of the entire evidence, this Court finds no reason to interfere with the finding in the impugned judgment that the

complainant has not succeeded in proving the offence under Section 417 IPC against the accused persons and in that circumstance, I find that this

appeal which is devoid of merit, is liable to be dismissed.

In the result, this appeal is dismissed. Interlocutory applications, if any pending, shall stand closed.