IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 Crl.Rev.Pet.No. 284 of 2005(A) ------------------------------ CRA.212/2003 of SESSIONS COURT, KOZHIKOE CC.106/1999 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- P.G. KRISHNAN, S/O. GANAPATHY IYER, EKADANATHA HOUSE, NEAR GOVT.GANAPATH GIRLS SCHOOL, CHALAPPURAM, CALICUT-2. BY ADV. SMT.T.RESMI DAMODARAN RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. E.P. GEORGE, S/O. A.J. POULOSE, EDASSERY HOUSE, CHEMBAKA HOUSING COLONY, CHEVAYUR AMSOM DESOM, KOZHIKODE DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R1 R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.2019/05 IN CRRP 284/05 DISMISSED 4/6/2010 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. =========================== CRL.R.P.No. 284 OF 2005 =========================== Dated this the 4th day of June,2010 ORDER Petitioner was convicted and sentenced for the offence under section 420 of Indian Penal Code on a complaint filed by the first respondent. Case of the first respondent is that petitioner, a partner of a firm engaged in private banking made a representation to the first respondent that if Rs.60,000/- is deposited it will be repaid with interest and believing the representation first respondent deposited Rs.60,000/- with the petitioner and when the amount was not repaid as promised, first respondent approached him and then petitioner issued Ext.P1 cheque dated 30.12.1998 drawn in Kozhikode Branch of South Indian Bank Limited for Rs.67,440/- including the interest. The cheque when presented for Crl.R.P.284/2005 2 encashment it was dishonoured as the account was closed as early as 17.6.1998. Inspite of notice demanding the amount, it was not repaid. Petitioner thereby committed the offences under section 138 and 420 of Indian Penal Code. Learned Magistrate had taken cognizance only for the offence under section 420 of Indian Penal Code. Petitioner pleaded not guilty. First respondent was examined as PW1. Exts.P1 to P6 were marked. On the side of the petitioner Exts.D1 to D4 were marked. Learned Magistrate on the evidence found the petitioner guilty and convicted and sentenced him to simple imprisonment for three years. Though petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.212/2003, learned Sessions Judge dismissed the appeal confirming the conviction and sentence. The revision is filed challenging the concurrent conviction contending that when ingredients of an offence under section 420 of Indian Penal Code is not established, the conviction is not legal and it Crl.R.P.284/2005 3 is sustainable. 2. Learned counsel appearing for the petitioner relying on the decision of the High Court of Allahabad in Geeta v. State of U.P.(2007 Crl.L.J.2222) and this court in Chary v. Martin (1982 K.L.T 427) and in Joseph v. State of Kerala (2003 KLT SN 48) argued that there is no allegation in the complaint or in the evidence of PW1 that petitioner had a dishonest intention to cheat the first respondent, when he was made to deposit Rs.60,000/- in 1997 and the conviction was based only on the ground that Ext.P1 cheque was issued after the account was closed and therefore the conviction is unsustainable. 3. Learned counsel appearing for the first respondent argued that but for the inducement made by the petitioner that the amount deposited with interest will be repaid, first respondent would not have deposited the amount and as the petitioner failed to pay that amount, first respondent approached him and then he issued Ext.P1 cheque Crl.R.P.284/2005 4 drawn in a closed account and it was done only with the intention to cheat and therefore the conviction is perfectly sustainable. 4. Section 420 of Indian Penal Code provides that whoever cheats and thereby dishonestly induces the person deceived, 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 shall be punished for the sentence as provided therein. Section 415 provides cheating. Under the Section, whoever, by deceiving any person, fraudulently or dishonestly and induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in Crl.R.P.284/2005 5 body, mind, reputation or property, is said to “cheat”. Therefore the essential ingredients of cheating as provided under section 420 of Indian Penal Code is the fradulent or dishonest inducement, to the person so deceived to deliver any property to that person or to consent that any person shall retain a property or to do or omit to do anything which he would not do or omit if he were not so deceived. Therefore as the case of the first respondent is that petitioner cheated him, to attract an offence under section 420, what is to be proved is that petitioner induced him to deliver money, which he delivered to the petitioner in 1997 and he would not have delivered it but for the deception. The case is that petitioner induced first respondent to make a deposit of Rs.60,000/- with a promise that it will be repaid with interest later. There is no allegation in the complaint or in the evidence of PW1 that at the time when petitioner induced first respondent to part with Rs.60,000/-petitioner had a dishonest intention to Crl.R.P.284/2005 6 cheat. The dishonest intention provided under section 420 and 415 of Indian Penal Code is not a dishonest intention, subsequent to the delivery of the money, but at the very inception in 1997. But first respondent has no case that petitioner had a dishonest intention to cheat, at the time when first respondent deposited Rs.60,000/- with the petitioner in 1997. The only allegation is that, later in 1998 when petitioner did not pay back the amount as promised, first respondent demanded the money and the petitioner issued a cheque in an account closed, with the intention to cheat. When first respondent has no case that there was a dishonest intention to cheat either when the amount was deposited or when first respondent was induced by the petitioner to make the deposit, an offence under section 420 of Indian Penal Code will not lie. The conviction of the petitioner for the offence under section 420 of Indian Penal Code is therefore illegal and it can only be set aside. Crl.R.P.284/2005 7 Revision is allowed. The conviction of the petitioner for the offence under section 420 of Indian Penal Code in C.C.106/1999 by the Chief Judicial Magistrate, as confirmed by Sessions Judge in Crl.A.212/2003, is set aside. Petitioner is found not guilty of the offence. He is acquitted. Bail bond executed by the petitioner stands cancelled. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006