IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 Crl.Rev.Pet.No. 3518 OF 2007() ------------------------------ CC.693/2003 of JUDL.MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ---------------------------- DAVID LUKOSE, AJIBHAVANAM, EDAVANASSERI MURI, MYNAGAPPALLY VILLAGE, KUNNATHOOR TALUK. BY ADV. SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.MOHANAN PILLAI, JAYAVIHAR, THEKKAN MYNAGAPPALLY MURI, MYNAGAPPALLY VILLAGE, KUNNATHOOR TALUK. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R1 SRI.B.S.SWATHIKUMAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP 3518/2007 ORDER ON CRL.M.A. 13040/07 IN CRRP 3518 OF 2007 DISMISSED 10.11.2008 SD/- M. SASIDHARAN NAMBIAR, JUDGE. Okb/- /TRUE COPY/ P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3518 OF 2007 ------------------------------------------ Dated this the 10th day of November, 2008 O R D E R Revision petitioner is the accused and second respondent the complainant in C.C.693 of 2003 on the file of Judicial First Class Magistrate, Sasthamcotta. Revision is filed challenging the order passed by learned Magistrate rejecting the case of the revision petitioner for discharge on the ground that ingredients of the offence is not made out, holding that there are sufficient materials to frame charge for the offence under section 420 of Indian Penal Code. Case of the second respondent in the complaint was that Rs.2,00,000/- was borrowed by Jayamohanan, his son, from the revision petitioner and when revision petitioner demanded the money with interest second respondent paid Rs.2,80,000/- on 24.12.1995 and obtained a receipt. Even though Jayamohanan had handed over a blank cheque to the revision petitioner while receiving the money and revision petitioner promised to return the cheque he did not return the cheque under the pretext that cheque was not with him and was in the possession of his daughter, who is not in station and CRRP 3518/07 2 promised to hand it over after return of the daughter. It was contended that subsequently revision petitioner handed over the cheque to another person and that person filed a complaint against Jayamohanan, the son of the second respondent alleging an offence under section 138 of Negotiable Instruments Act and revision petitioner thereby committed the offence under section 420 of Indian Penal Code. Learned Magistrate recorded the evidence of the second respondent and a witness and thereafter heard the second respondent and the revision petitioner. Rejecting the contentions of the revision petitioner that ingredients of an offence under section 420 IPC was not made out it was held that prima facie case of commission of offence under section 420 of IPC is made out. Case was posted for framing charge. Revision is filed challenging the order contending that when the ingredients of offence under section 420 of Indian Penal Code is not made out, finding of the learned Magistrate that a prima facie case is made out is illegal and is to be set aside. 2. Learned counsel appearing for revision petitioner and learned senior counsel appearing for second respondent were heard. CRRP 3518/07 3 3. Learned counsel appearing for revision petitioner argued that neither in the complaint nor when PWs 1 and 2 were examined there was a case that revision petitioner had an intention to cheat when second respondent parted with the money as alleged and therefore the essential ingredient of an offence under section 420 of Indian Penal Code is absent and therefore the order is not sustainable. 4. Learned senior counsel appearing for second respondent argued that complaint is to be read as a whole and if so read along with statements of PWs 1 and 2, it is clear that second respondent paid the money on the promise of the revision petitioner that he will return the cheque and when the cheque was asked for, under the pretext that it is with the daughter, it was not returned and that cheque was later handed over to another person, who filed a complaint alleging an offence under section 138 of N.I. Act against Jayamohanan and hence it is clear that there was an intention to cheat when second respondent was induced to part with the money and therefore finding of learned Magistrate that prima facie case is shown is perfectly correct and no interference is warranted. 5. Section 245(1) of Code of Criminal Procedure CRRP 3518/07 4 provides that on taking all the evidences as provided under section 244, if the Magistrate considers that no case as against the accused is made out, which if unrebutted would warrant his conviction, Magistrate shall discharge the accused recording reasons. Only if the Magistrate is of the opinion that there is ground for presuming that accused has committed the offences charge as provided under section 246(1) of Code of Criminal Procedure would be framed. Therefore if the evidence as recorded under section 244 and the averments in the complaint are insufficient for presuming that accused committed the offence, charge cannot be framed and accused shall be discharged. If on the averments in the complaint and the evidence of PWs 1 and 2, ingredients of an offence is not made out, Magistrate cannot frame a charge and revision petitioner is entitled to an order of discharge. 6. Section 420 of IPC provides that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to the 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, shall be punished for the sentence provided therein. CRRP 3518/07 5 The ingredients of the offence are (1) There should be fraudulent or dishonest inducement of a person by deceiving him (2) The person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property or (3) The person so deceived should be intentionally induced 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 should be one causes or is likely to cause damage or harm to the person induced. If the case of the second respondent as pleaded in the complaint and spoken to as PW1 is accepted as such the case is that son of the second respondent borrowed Rs.2,00,000/- from revision petitioner agreeing to repay the same with interest. He left for United States of America. When the amount due from the son was demanded with interest it was paid by second respondent. At that time a receipt, which was produced and marked as Ext.P1, was issued by the revision petitioner admitting that the amount borrowed by the son of the second respondent by issuing a cheque is received from revision petitioner, his father. There is no promise in Ext.P1 receipt that a cheque was handed over by the son was blank or it was missing or that it will be given back. CRRP 3518/07 6 Receipt also do not disclose that the cheque was not returned. The amount paid by the second respondent is the amount borrowed by his son, with its interest. Unless there is a case for the second respondent that but for the promise made by the revision petitioner that if the amount due from the son was paid by the father, the cheque handed over by the son will be returned, he would not have parted with the money and he paid the amount on that inducement and that inducement was made with the intention to cheat, by making use of the cheque through another person, it cannot be said that the essential ingredients of an offence under section 420 IPC was made out. There is absolutely no allegation in the complaint or even when second respondent was examined as PW1 that when he paid Rs.2,80,000/- evidenced by Ext.P1receipt there was an inducement by the revision petitioner that he will hand over the cheque issued by the son. If we are to believe the complaint and his evidence, after paying the money and revision petitioner issued Ext.P1 receipt, second respondent asked for return of the cheque. At that stage revision petitioner stated that the cheque is with his daughter and it will be given later. If that be the case, it cannot be said that second respondent parted with the CRRP 3518/07 7 money on the inducement made by revision petitioner that on receipt of the money due from the son the cheque issued by the son will be returned. Moreover, there is no allegation whatsoever that at that time revision petitioner had an intention to cheat. If at all the allegation is accepted the case is only that on the pretext that the cheque was with his daughter, revision petitioner did not return the cheque and later the cheque was handed over to another person. These facts even if accepted will not constitute the essential ingredients of an offence under section 420 of IPC. In the absence of a case of an intention to cheat at the inception when inducement was made and money was parted there cannot be a cheating as provided under section 415 of Indian Penal Code. If there was no such cheating, there cannot be an offence under section 420 of Indian Penal Code. Revision is allowed. The order of Judicial First Class Magistrate in C.C.693 of 2003 is quashed. Revision petitioner is discharged under section 245(1) of Code of Criminal Procedure. M. SASIDHARAN NAMBIAR, JUDGE Okb/-