Venkatachalam vs State

This Revision case has been filed by the revision petitioner who was accused in C.C. No. 400 of 1990 on the file of the Judicial Magistrate No.

II, Chengalpattu and appellant in C.A. No. 53 of 1994 on the file of the Sessions Judge Chengalpattu challenging the findings of conviction passed

by both the Courts below.

The Inspector of Police, District Crime Branch, Kancheppuram has filed a charge-sheet against the accused who is the revision petitioner herein

alleging that on 4/9/1984, he passed a cheque for Rs. 7,500/- dated 1-9-1984 to one T. Ashok Kumar and that on 15-8-1985 he passed another

cheque for Rs. 10,000/- to the said Ashok Kumar and both the cheques have been bounced and thereby the accused was liable u/s 430(ii), IPC.

The Trial Court on the culmination of trial found the accused guilty u/s 430, IPC convicted and sentence to undergo RI for three months and to

pay of fine of Rs. 500/- for each count of said offence. On appeal, the learned Sessions Judge, Changalpattu confirmed the conviction and

sentence and dismissed the appeal.

The learned counsel appearing for the petitioner has argued that the cheque dated 1-9-1984 for a sum of Rs. 7,500/- was passed on 4-9-84

and the cheque dated 15-8-1985 for Rs. 10,000/- was passed on 15-8-85 and both of them were drawn in the name of T. Ashok Kumar for the

amount which the revision petitioner owed in the business transaction. It is not in dispute that T. Ashok Kumar and the revision petitioner herein

had business transactions and both the cheques marked as Exs. P1 of P2 have been issued in favour of T. Ashok Kumar in respect of the said

transactions. The learned counsel for the revision petitioner has argued that no ingredients are made out to make out an offence u/s 120, IPC

against the revision petitioner and to substantiate that contention, he has submitted a catena of decisions. In P. C. Cheriyan v. Kuruvilla reported in

1966 MLJ (Cri) 273 the Kerala High Court held as follows :

The conviction, do not think can be sustained because the elements of cheating have not been brought out in the case. The drawing up of a cheque

does not imply in the cheque for he may either have authority to overdraw or have an honest intention of paying in the necessary money before the

cheque can be presented"". (Vide Kanwa Singh v. The Crown) A post dated cheque is a mere promise to pay on future date and the fact that the

cheque is dishonoured which amounts only to broken promise is not a ""criminal offence"". ""Giving of a cheque in lieu of money already due with the

knowledge that the drawer has no funds in the bank does not amount to an offence but is only a civil wrong"". (vide Ratna v. Ganesh Das. But if a

person gives a cheque which is dishonoured and from the circumstances could be presumed that he must have been aware that the cheque would

be dishonoured, he would be guilty u/s 420.

This decision, is aptly applicable to the instant case, as the cheques have been issued for a debt which was in existence even prior to the issuance

of the cheques and as such the accused had no intention to cheat the said Ashok Kumar and thereby dishonestly induced him to deliver the

property.

In M. S. Natarajan v. Ramasis Shaw, reported in 1995 CLJ 2011 the Calcutta High Court held as follows :

So during the time of the transaction there was no inducement. If there was no inducement at the initial stage, subsequent inducement will not

constitute the offence u/s 430 of the Indian Penal Code. As there was no initial inducement in this case, the case u/s 430, I.P.C. is not

maintainable"".

In the instant case also there was no inducement at the time of the business transaction and as such, the act of the accused will not constitute an

offence u/s 420, IPC.

In State of Kerala Vs. A. Pareed Pillai and Another, the Apex Court held as follows (at page 1247; of Cri LJ) :

To hold a person guilty of the offence of cheating. It has to be shown that his intention was dishonest at the time of making the promise. Such a

dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise"".

In the instant case, the cheques were issued by the revision petitioner for the money due to one Ashok Kumar, the complainant and there is no

evidence on record that at the time, the revision petitioner had an intention to cheat the said Ashok Kumar and since the cheques have been

bounced, it cannot be inferred that he had cheated the said Ashok Kumar and thereby inducted him to deliver the property.

This Court in Samuel Raj v. The Inspector of Police (Crime) Alliyur reported in 1992 LW (Cri) 429 held that :

According to the learned counsel, in order to attract Section 420, IPC, the complainant should have been deceived and thereby dishonestly

induced to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed

or sealed, and which is capable of being converted into a valuable security. The cheque was given to discharge an existing debt. By receiving the

cheque, the complainant has not parted with any valuable security. Receiving useless security for an existing debt cannot form the basis for an

offence punishable u/s 420, I.P.C. I entirely agree with the reasoning adopted by the learned counsel for the petitioner and as such, I find that the

receipt of the cheque for an existing debt will not form the basis for an offence punishable u/s 420, IPC in the event of the cheque bouncing back

for want of funds.

This decision will also confirm the view that for the existing dues, if any cheque was issued at a later point of time and the cheque is returned, the

dishonest intention cannot be inferred from such circumstances. When the above decisions are applied to the instant case, it is clear that as the

cheques have been issued by the revision petitioner for the existing dues, the said act will not fall u/s 420, IPC and as such the conviction and

sentence passed by the trial Court and upheld by the appellate Court have to be set aside.

In the result, the revision petition is allowed and the conviction and sentence passed by the trial Court and confirmed by the appellate Court are

set aside and the accused (revision petitioner) is acquitted of the offence charged.

Petition allowed.