Jnanasekharan v. Chellammal & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 28TH OCTOBER, 2008 / 6TH KARTHIKA, 1930 **CRL.A.No. 570 of 2000** ( CRA.103/1998 of II ADDL.SESSIONS COURT, ERNAKULAM CC.725/1995 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI) .................... ## APPELLANT/2ND RESPONDENT/COMPLAINANT: ---------------------------------------------------------- JNANASEKHARAN, S/O.SHANMUGHAM, PARAYAPPALLY HOUSE 18/1881, THARA BHAGAM, PALLURUTHY VILLAGE. BY ADV. SRI.K.A.JALEEL SRI.C.ANILKUMAR (KALLESSERIL) RESPONDENT/APPELLANT/ACCUSED & STATE: -------------------------------------------------------- 1. CHELLAMMAL, W/O.VANAMALA.S.MONY, LEKSHMI NIVAS 16/41, SEELATHUPARAMBU, KARUVELIPADI,KOCHI – 5. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.B.S.SURAJ KRISHNA FOR R1 SRI.S.RAJEEV FOR R1 BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **--------------------------------------------Crl.A.No. 570 of 2000 --------------------------------------------Dated this the 28[th] day of October, 2008** ## **J U D G M E N T** This is an appeal preferred by the complainant challenging the order of acquittal passed by the lower appellate court in favour of first respondent herein/accused by setting aside the conviction and sentence passed against the appellant under Section 420 I.P.C. 2. Originally, the appellant herein preferred a complaint before the Judicial First Class Magistrate Court-II, Kochi against the first respondent/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and Section 420 of the Indian Penal Code. The case of the complainant is that the accused borrowed a sum of Rs.13,000/- from the complainant for the purpose of purchasing a property and when the money was demanded back, the accused issued a cheque for Rs.13,000/- of Account No.14028 of Canara Bank, Thoppumpadi Branch dated 11.5.1995. Accordingly, the complainant presented the cheque for collection to the State Bank of Travancore, Panayappally branch, but the same was bounced with the endorsement 'account closed'. Thus, the cheque was returned with Ext.P2 Memo on 13.5.1995. The complainant caused to send a notice through lawyer on 26.5.1995 to the accused intimating her the bouncing of the cheque and demanding the ## **CRL.A. NO.570 of 2000** ## **:-2-:** payment of the amount. According to the complainant, the accused did not accept the said notice and it was returned. Thus, the accused made to believe the complainant that there is money in her account and when the cheque was presented, it would be encashed and it had been done by the accused with an ulterior motive for cheating the complainant. Hence, according to the complainant, the accused has committed the offences punishable under Section 138 of the N.I.Act and Section 420 of the I.P.C. On filing the complaint and on recording the sworn statement of the complainant, the case was taken on file as C.C.No.725 of 1995 for the said offence. When the accused appeared in pursuance of the processes issued from the trial court based upon the allegation in the complaint, a charge under Section 420 of I.P.C. was framed and read over and explained to her to which she pleaded not guilty. The accused took a stand of total denial. During the trial, Pws.1 to 4 were examined and Exts.P1 to P4 documents were marked as documentary evidence. From the side of the defence, Dws.1 and 2 were examined and Exts.D1 and D2 were marked. It is the case of the accused that she had lost her cheques and the fact was intimated to her bank and the account was accordingly closed. Thus, according to the accused, she had no transaction with the complainant and no cheque was issued to the complainant. ## **CRL.A. NO.570 of 2000** ## **:-3-:** 3. Based upon the rival contentions and pleadings, the trial court framed three issues for its consideration. Finally, the court below found that though the cheque in question was dishonoured on 13.5.1995, Ext.P3 lawyer notice was sent only on 2.6.1995 and therefore, the notice was sent after the expiry of the statutory period of 15 days. So, it was found by the trial court that the ingredients of Section 138 of the N.I.Act are not attracted and therefore, the accused was found not guilty under Section 138 of the N.I.Act. But, on the basis of the evidence adduced during the trial, the trial court had found that, especially on the basis of oral evidence of Pws.1 to 4, the accused borrowed the money from the complainant and when claimed back, the accused issued Ext.P1 cheque to the complainant making him believe that the said cheque would be encashed. The trial court found that Ext.P1 cheque is dated 11.5.1995, but the account maintained by the accused was closed on 14.7.1994. Thus, according to the trial court, Ext.P1 cheque was issued on 11.5.1995 and at that time, the accused was fully aware that the account to which Ext.P1 cheque is related has already been closed and further, the complainant was made believe that the said cheque would be honoured on presentation. Thus, on the basis of the above facts, the trial court came into a conclusion that the issuance of cheque after closing the account was enough to prove the deceitful act of the ## **CRL.A. NO.570 of 2000** ## **:-4-:** accused and her intention for wrongful gain by making loss to the complainant. Thus, accordingly, it was held that the accused was guilty under Section 420 of I.P.C. and after hearing her on the question of sentence, she was sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs.5000/- and in default to undergo simple imprisonment for six months. It was also ordered that if the fine amount was realised, it would be paid as compensation to the complainant under Section 357 of the Code of Criminal Procedure. 4. Though the accused was acquitted of the offence under Section 138 of the N.I.Act., the complainant did not file any appeal against the acquittal challenging the order passed by the trial court. 5. Aggrieved by the order of conviction and sentence of the trial court, the accused preferred Crl.A.No.103 of 1998 before the Sessions Court, Ernakulam. By judgment dated 28.2.2000 in Crl.A.No.103 of 1998, the IInd Additional Sessions Court acquitted the accused of the charge under Section 420 of I.P.C. It is the above order of acquittal, challenged in this appeal. 6. I have heard learned counsel for the appellant as well as first respondent/accused. 7. Though counsel for the appellant submits that even though the cheque is dishonoured for the reason 'account closed', the offence ## **CRL.A. NO.570 of 2000** ## **:-5-:** under Section 138 of the N.I.Act will lie. I need not go into the correctness or legality of the finding arrived on by the trial court in favour of the accused acquitting her of the offence under Section 138 of the N.I.Act since the complainant has not filed any appeal against such acquittal. 8. Against the order of acquittal passed by the lower appellate court acquitting the accused of the offence under Section 420 I.P.C., the counsel submits that Ext.P1 cheque was issued by the accused on 11.5.1995 and at the time of issuance of cheque, she was aware of the fact that the account maintained by her to which the cheque in question connected, was closed and therefore, the cheque in question was issued with dishonest intention and therefore, the trial court had rightly found the accused was guilty of the offence under Section 420 I.P.C., but the lower appellate court interfered with such order of conviction without any valid reason. 9. On the other hand, learned counsel for the first respondent submits that the transaction itself was not based upon Ext.P1 cheque. Ext.P1 cheque was issued subsequently and even if the allegation of the complainant is accepted as true regarding the borrowal by the accused, no offence under Section 420 will be attracted. In support of the above contention, the learned counsel invited my attention to the decisions of ## **CRL.A. NO.570 of 2000** ## **:-6-:** this Court reported in **Surendran** v. **Ramachandran Nair** [1967 KLT 804], **Sreethara Kamath** v. **Jawala Prasad Gupta** [1970 KLT 45], **Shadili** v. **Uthaman** [1988(2) KLT 191] and **Rama Gupta** v. **Bakeman's Home Products** [1992(1) KLT 765]. 10. I have carefully considered the contentions advanced by both counsel and also perused the records. 11. Section 415 of I.P.C. deals with cheating. Section 415 reads that “the person, whoever by deceiving any person, fraudulently or dishonestly 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 so or omit to do anything which he would not do or commit if he were not so deceived and which act or commission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to 'cheat' ”. In the present case, even according to the complainant, if such allegation is admitted as true for the sake of argument, the borrowal was much prior to the issuance of Ext.P1 cheque and it cannot be said that an amount of Rs.13,000/- was paid by the complainant on representation made by the accused by giving Ext.P1 cheque. Admittedly, even ## **CRL.A. NO.570 of 2000** ## **:-7-:** according to the complainant, the cheque in question was issued by the accused on persistent demand made by the complainant for repayment of the amount borrowed and it was that the cheque was dishonoured for the reason 'account closed'. From the averments and going by the case of the complainant, it can be seen that there is no wrongful gain by the accused by issuing such cheque. Thus, the lower appellate court had rightly observed that in order to attract Section 420 of I.P.C., mens rea was there and it was necessary to show that by issuing Ext.P1, the appellant obtained wrongful gain and complainant/PW1 sustained wrongful loss. The above finding of the lower appellate court is absolutely correct and legal and therefore, no interference of this Court is warranted and consequently, the appeal fails and is liable to be dismissed. In the result, there is no merit in the appeal and the same is dismissed. There is no order as to costs. MBS/ **V.K.Mohanan, Judge** ## **CRL.A. NO.570 of 2000** **:-8-: V.K.MOHANAN, J.** -------------------------------------------Crl.A.NO. 570 OF 2000 ------------------------------------------- J U D G M E N T DATED: 28-10-2008 ## **CRL.A. NO.570 of 2000** **:-9-:**