IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 CRL.A.No. 1116 of 2003 ------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.66/2003 Dated 11/06/2003 CC.382/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA ........................................ APPELLANT(S): COMPLAINANT ---------------------------------------------- SAJEEV K.S., S/O. SUKUMARAN, KOTHAPARAMBIL HOUSE, ELAMKULAM CHEMMATHU ROAD, KOCHI. BY ADV. SRI.C.AJITH KUMAR (KALLESSERIL) SRI.C.ANILKUMAR (KALLESSERIL) RESPONDENT(S): ACCUSED & STATE ---------------------------------------------------- 1. SOPHIYA ANTONY, E.W.S.630, GANDHI NAGAR, KOCHI. 2. STATE OF KERALA, REPESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1116 OF 2003 = = = = = = = = = = = = = = = Dated this the 15th day of June, 2009. J U D G M E N T This appeal is preferred against the order of acquittal in C.C.382/00 of the Judicial First Class Magistrate-II, Aluva. It was a case taken cognizance of u/s 420 IPC and the Court held that the evidence is not sufficient to satisfy the ingredients u/s 420 IPC and therefore acquitted the accused. It is against that decision the complainant has come up in appeal. The learned counsel would contend that materials are sufficient for the reason that at the time of issuance of the cheque the accused was totally aware of the fact that her account has been closed when she issued the cheque. It is the case of the complainant that the accused had borrowed a sum of Rs.1,25,000/- on 19.12.99 and on the same day had issued a cheque towards the discharge of the liability which when presented for encashment returned with the endorsement that the account is closed. In order to attract an offence u/s 420 IPC the ingredients necessary are that the accused had Crl.A. 1116 OF 2003 -:2:- cheated the complainant that too with the dishonest intention and thereby induced the complainant to deliver some property to the accused or to some other person. It is true so far as this case is concerned the cheque is issued on the very same date. Neither in the complaint nor in the evidence there is any averment or in the deposition of PW1 to the effect that it was on the basis of the issuance of a cheque the amount was advanced. In order to constitute an offence of cheating it is a necessary ingredient. Just because a cheque is issued towards the discharge of the liability which when presented for encashment returned on some other grounds does not straight away constitute the offence of cheating. In order to constitute the offence of cheating it has to be established that the complainant parted with the money on account of the fraudulent representation of the accused and that the cheque is given. Unfortunately, here the averment is in the reverse direction that the amount is given towards the discharge of a liability a and a cheque is issued. In such cases the offence u/s 420 is not attracted and therefore I cannot hold that the Crl.A. 1116 OF 2003 -:3:- Court below has gone wrong in acquitting the accused for the offence punishable u/s 420 IPC. Therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-