IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 Crl.Rev.Pet.No. 3926 of 2008() ------------------------------ CC.15/2007 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER(S): COMPLAINANT -------------------------------- CHERMOLIN ABOOBACKER, S/O.MOOSA, AGED 45 YEARS, ELANKOD DESOM, PANOOR AMSOM. BY ADV. SRI.C.P.PEETHAMBARAN SRI.M.X.ANTONY LIJO RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. SHAHUL HAMEED P.K., S/O.MAMMU, AGED 47 YEARS, BUSINESS, PANOOR AMSOM DESOM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.3926 of 2008 -------------------------------------- Dated this the 25th ` day of May, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which will not prejudice him. Public Prosecutor takes notice for respondent No.2. 2. Challenge in this revision is to the order of discharge under Section 245(1) of the Code of Criminal procedure. Case of petitioner is that in the year 1999, himself and respondent No.1 had entered into an agreement as per which respondent No1 agreed to pay him Rs.5,000/- pr year as share of profits of the business conducted by him provided, petitioner invested Rs.5,20,000/- in the business. Accordingly petitioner invested Rs.5,20,000/-. Respondent No.1 then gave three cheques and a demand promissory note. Respondent No.1 gave the petitioner share of profits as agreed upon till January, 2004 but, thereafter there was no payment for about one year. After one year, respondent No.1 gave cheque for Rs.1,00,000/-. On presentation the cheque was dishonoured for the reason that 'signature differes'. Thereon alleging that respondent No.1 purposely put a different signature in the cheque to cheat him, petitioner preferred a private complaint alleging offence punishable under Section 420 of the Indian Penal Code (for short, “the Code”). Pre-charge evidence was recorded by the learned magistrate. PWs 1 to 3 were examined and Exts.P1 to Crl.R.P.No.3926/2008 2 P7 were marked. Learned magistrate after consideration of the materials found that petitioner has no case that at the time of first transaction, there was any intention on the part of respondent No.1 to cheat him, profits as agreed upon was paid till January, 2004 and that there was no allegation of cheating at that point of time also. Only allegation is that by putting a different signature in the cheque issued for the share of profits due for one year after January, 2004, respondent No.1 cheated the petitioner. Learned magistrate observed that at the time when the disputed cheque was issued, indisputably there was no delivery of property and hence the offence as defined under Section 415 of the Code made punishable under Section 420 of the Code is not made out. Learned counsel contended that it is not specifically stated that the cheque in dispute is the one issued for the amount due for the period after January, 2004, it could be one of the cheques entrusted with the petitioner at the time of original transaction. It is also contended that the finding that no offence is made out is erroneous. 3. I am afraid these contentions cannot be accepted for, it is the case of petitioner that the cheque was issued for share of profits due for a period of one year after January, 2004. That cheque necessarily cannot relate to one of the three cheques issued in 1999 at the time of original transaction. Necessarily, the cheque must relate to the share of profits after January, 2004. Crl.R.P.No.3926/2008 3 4. To attract the offence defined under Section 415 of the Code there must be a fraudulent or dishonest inducement to deliver any property or to do any other act (which ofcourse do not apply to the facts of this case). There is no case for the petitioner that there was delivery of any kind of property at the time the cheque in question was allegedly issued with a different signature. The Madras High Court in Ramadoss v. Muniammal (AIR 1965 Madras 452) has held that only where a fraudulent representation leads to delivery of property which is dishonestly retained that ingredients of Section 415 of the Code are established and that otherwise, every debtor who repudiates his civil liability on some false pretext or other, would be guilty of cheating. That decision applies to the facts of the case on hand. Learned magistrate therefore, is factually and legally right in holding that no case if unrebutted would warrant conviction of respondent No.1 is made out. Therefore, there is no reason to interfere with the order under challenge. Revision petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks