IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 10TH DAY OF NOVEMBER 2011/19TH KARTHIKA 1933 CRA.No. 604 of 2002 ( ) ----------------------- CC.795/1998 of J.M.F.C.,VADAKARA APPELLANT/COMPLAINANT:: --------------------------------------- T.P. MD HANEEFA, AGED 42 YEARS, S/O. IBRAI, NASMATH MAHAL, BADAGARA AMSOM DESOM. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENT/ACCUSED:: --------------------------------- 1. BALAKURUP P.K. AGED 63 YEARS, S/O. KOMAPPAN NAMBIAR, PUTHIYEDATHU KANDIYIL HOUSE ERAMALA P.O., ERAMALA DESOM. 2. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R1 BY SRI.C.VALSALAN R1 BY SRI.K.RAKESH ROSHAN R1 BY SMT.THUSHARA.V BY PUBLIC PROSECUTOR, SRI.REJI JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: smm P.S.GOPINATHAN. J --------------------------------- Crl. Appeal No. 604 OF 2002 --------------------------------- Dated this the 10 th day of November , 2011 J U D G M E N T The appellant is the complainant in CC.No.795/88 on the file of the Judicial Magistrate of the First class, Vadakara.. He prosecuted the first respondent alleging offences under section 406 and 420 of the Indian Penal Code. On conclusion of trial, the learned Magistrate arrived at a finding against the appellant. Consequently, the first respondent was acquitted under Section 248(1) of the Code of Criminal Procedure. Assailing the above judgment of acquittal, this appeal is preferred after obtaining the leave. 2. Heard the learned counsel appearing on the either side and perused the judgment impugned. 3. The very case of the appellant is that on 04-05-1998, the first respondent borrowed a sum of Rs. 36,000/-, on promise to repay the same within one month. But the promise was not kept. After repeated demands on 18-06-1998, a cheque drawn from the account of the son of Crl. Appeal No. 604 OF 2002 2 the first respondent was issued with a statement that there was sufficient amount in Syndicate Bank, Vadakara branch, and that on presentation of the cheque, the appellant could collect the money. But when presented, the cheque was dishonoured for insufficient funds. The appellant approached the first respondent and insisted for cash payment . Some of the neighbours intervened and from them, it was understood that the son of the first respondent expired 3 years ago. According to the appellant, the cheque was issued suppressing the true facts, with an intention to deceive. With these pleadings complaint alleging offence under Section 406 and 420 Indian Penal Code was filed. 4. On a plain reading of the complaint it is seen that the cheque was issued in discharge of an existing debt. Therefore, in the given set of pleadings even if the cheque was drawn in the name of a dead person, no offence under Section 420 of the Indian Penal Code, would be made out. Because there was no inducement at the time of issuing cheque to deliver any property to any person or to see that Crl. Appeal No. 604 OF 2002 3 any person shall retain any property or intentionally induced a person so deceived to do, or omit to do anything which he did not omit , if he were not deceived and which act or omission caused or likely to cause damage or harm to that person in body, mind, reputation or property and no property was delivered or the appellant had done or omitted to do any thing but for the inducement. Therefore, the averments in the complaint would not make out an offence under Section 420 also. There is no whisper regarding entrustment of any property or breach therein. Therefore, no offence under Section 406 of the Indian Penal Code is also made out. 5. The Learned Magistrate was right in acquitting the first respondent . The appeal is devoid of merits. In the result, the appeal is dismissed. P.S.GOPINATHAN MM JUDGE Crl. Appeal No. 604 OF 2002 4 Crl. Appeal No. 604 OF 2002 5