Arumughan v. Unnirajan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942** ## **CRL.A.No.2199 OF 2005** **AGAINST THE JUDGMENT IN CC 598/2001 DATED 17-04-2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT -II,THRISSUR** **AGAINST THE ORDER/JUDGMENT IN Crl.L.P. 663/2005 DATED 25-11-2005 OF HIGH COURT OF KERALA** ## **APPELLANT/COMPLAINANT:** ## **ARUMUGHAN** **S/O.KOCHU, MAKKATHVEETIL HOUSE, CHAZHUR VILLAGE, VAPPUZHA DESOM, THRISSUR.** ## **BY ADV. SRI.DINESH MATHEW J.MURICKEN** ## **RESPONDENTS/ACCUSED & STATE:** **1 UNNIRAJAN S/O.VALLIYIL BALAN, CHAZHUR VILLAGE, CHAZHUR DESOM, THRISSUR TALUK.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.N.K.SUBRAMANIAN R1 BY ADV. SRI.AJITH MURALI R2 BY PUBLIC PROSECUTOR** ## **SRI. B. JAYASURYA, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2020, THE COURT ON THE SAMEDAY DELIVERED THE FOLLOWING:** Crl.A.No.2199/2005 2 ## **JUDGMENT** ## **Dated this the 18th day of June 2020** The above appeal is filed against the judgment dated 17.4.2004 in C.C.No.598 of 2001 on the file of the Judicial First Class Magistrate Court-II, Thrissur. The above case is filed by the appellant against the first respondent to prosecute him under Section 420 IPC (Hereinafter the parties are mentioned in accordance to their rank before the lower court). 2. The case of the complainant is that in the second week of 1998, the accused approached the complainant and asked for an amount of Rs.50,000/-. He also promised to issue a cheque dated 15.7.1998. He represented that there will be sufficient amount in his Bank account to honour the cheque and hence the complainant can encash the cheque on 15.7.1998. The Crl.A.No.2199/2005 3 representations made by the accused were believed by the complainant and agreed to pay Rs.30,000/- to the accused. As the amount was not ready with the complainant, he asked the accused to come on 14.6.1998. As agreed, the accused came to the house of the complainant on 14.6.1998. The complainant could arrange only an amount of Rs.28,000/- on that day. The said amount was paid. The accused has given a cheque drawn on Chazhur Service Co-operative Bank Ltd. as promised by him earlier. The cheque was dated 15.7.1998. The accused again represented that there will be sufficient funds to honour the cheque in the account on 15.7.1998. Believing the words of the accused, the complainant received the cheque from the accused and paid Rs.28,000/-. When the cheque was presented before the Bank, the same was returned with an endorsement “refer to drawer”. The complainant made enquiries with the Bank regarding the actual reason for dishonouring the Crl.A.No.2199/2005 4 cheque. For this purpose, the complainant issued a notice to the Banker of the accused. In response to this letter, the Banker of the accused informed the complainant that the accused had closed the account as early as on 28.5.1996. It is the further case of the complainant that on getting information regarding the presentation of the cheque, the accused had sent a notice to the complainant on 12.8.1998 demanding to return the cheque to the complainant. According to the complainant, this notice was issued to absolve the liability. The complainant issued a notice demanding the cheque amount on 30.8.1998. The accused accepted the notice, but has not paid any amount. Subsequently, the accused filed O.S.No.2248 of 1998 before the Munsiff Court, Thrissur and the said suit was dismissed. It is the case of the complainant that the accused with the dishonest intention represented that there will be sufficient amount in his account and dishonestly induced the complainant to Crl.A.No.2199/2005 5 accept the cheque to get an amount of Rs.28,000/-. Thus it is alleged that the accused committed the offence under Sections 420 and 415 IPC. Even though a complaint was filed earlier and referred the case by the Court under Section 156(3) Cr.P.C., the police referred the case. Hence the complaint was filed. 3. To substantiate the case, PW1 and PW2 were examined on the side of the complainant. Exts.P1 to P10 are the documents marked on the side of the complainant. DW1 was examined on the defence side. Exts.D1 and D2 are the documents marked on the side of the defence. 4. On going through the evidence and the documents, the trial court found that no offence under Section 420 IPC has made out and the accused was acquitted under Section 248(1) Cr.P.C. Aggrieved by the acquittal order, this Crl.Appeal is filed. 5. Heard the learned counsel for the complainant, Crl.A.No.2199/2005 6 accused and the learned Public Prosecutor. 6. The learned counsel for the complainant submitted that the offence under Section 420 IPC is made out in this case. The accused issued the cheque knowing fully well that the account is already closed. In such circumstances, the ingredients of Section 420 IPC is made out. On the other hand, the accused submitted that no offence under Section 420 IPC is made out. The counsel also relied the judgment of this Court in **K.Chandran v. Ponnappa Moothan and another (2012(4) KLJ 373)** . 7. After hearing both sides, the point for consideration in this appeal is whether the offence under Section 420 IPC is made out. After appreciating the evidence in detail, the trial court acquitted the accused. The trial court found that from the evidence of PW2, it appears that the cheque was given after the payment of the amount by the complainant. The evidence of PW1 and Crl.A.No.2199/2005 7 PW2 is contrary on this aspect. PW1 deposed that he paid the amount on believing the representation that Ext.P1 cheque can be encashed on 15.7.1998. But according to PW2, the cheque was issued only after payment and the promise was made by the accused after the payment of money by the complainant. 8. The learned counsel for the first respondent/ accused points out that in Ext.P10 case, the complainant herein was examined as PW1. In the evidence given before the Munsiff Court, the complainant deposed that he could not say whether the cheque was written and signed by the accused or not. PW2 has no case that he found the accused executing Ext.P1 cheque. PW1 has deposed that the accused brought a written cheque and signed the cheque in front of him. Deposition of PW1 before the Munsiff Court is marked as Ext.D1 and relevant portion is marked as Ext.D1(a). From this the lower court found that the evidence of PW1 that he has Crl.A.No.2199/2005 8 seen the accused executing the cheque is contradictory to his previous statement before the Munsiff Court in Ext.P1 deposition. There is no proper explanation offered by the complainant regarding this contradiction. Hence the evidence of PW1 that the accused executed the cheque in his presence cannot be believed. After appreciating the evidence, the trial court came to the above conclusion. I think that there is nothing to interfere with this finding. 9. Moreover, for proving an offence under Section 420 IPC, the prosecution has to prove that the accused has made out a false representation and induced the complainant to pay the amount on the strength of false representation. The case of the complainant is that the accused induced him to pay the amount by dishonestly representing that by presentation of Ext.P1 cheque, he can get the payment. But the evidence of PW2 on this vital aspect is absolutely contradictory to the evidence of PW1. PW2 has deposed that the cheque was issued by Crl.A.No.2199/2005 9 the accused and the promise was made by the accused subsequent to the payment of the money by the complainant. According to PW2, the representation was made only after payment of the amount. This contradiction in the evidence of PW1 and PW2 was considered by the trial court and found that it create doubts about the prosecution case. This is an appreciation of evidence. The trial court came to definite conclusion after appreciating the evidence of the witnesses. I think there is nothing to interfere with that finding. 10. Moreover, in _K.Chandran_ ’s case (supra), this Court observed like this : _“Going by the definition of cheating quoted above with its explanation and illustrations, I find that the essential ingredient is fraudulent or dishonest inducing to deliver any property or money to any person or to consent that any person shall retain any property, or there must be intentional inducement to the person so deceived in to do or_ Crl.A.No.2199/2005 10 _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 body, mind, reputation or property. The cheating alleged in this case is regarding the issuing of Ext.P1 concealing the fact that it was drawn on a closed account. Since Ext.P1 cheque was issued in discharge of a so called existing debt, the concealing that the account was closed at the time when the cheque was issued would not satisfy the requirement of the definition of cheating under Section 415 IPC because there is no deception following the concealing. No damage or harm to the first respondent in body, mind, reputation or property was caused due to the concealing of the fact that the account was closed. There is no evidence to show that the first respondent sustained any harm or loss other than the inability to recover the debt which was existing when Ext.P1 was issued. Neither there is any passing of money or property. It follows that the conviction and sentence under Section 417 IPC are not sustainable in law. Courts below failed in appreciating the facts and law.”_ In the light of the above dictum laid down by this Court, I think no offence under Section 420 IPC is made Crl.A.No.2199/2005 11 out in this case. Hence, this Crl.Appeal is dismissed confirming the judgment dated 17.4.2004 on the file of the Judicial Magistrate of First Class Court-II, Thrissur. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** **csl**