Siddiq v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 Crl.Rev.Pet.No. 2604 OF 2007() -----------------------------CRA.305/2006 of SESSIONS COURT, KOLLAM CC.978/2003 OF JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... REVN. PETITIONER/ APPELLANT/ACCUSED NO.1: ---------------------- SIDDIQ, AGED 42 YEARS, S/O. CHELLAPPAN, BUNGLAVU, KARIYARA, PUNALUR. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESH KUMAR RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MURALEEDHARAN PILLAI, S/O. VASUDEVAN PILLAI, RESIDING AT NILAVU, ARAMPUNNA MURI, ELAMPAL, PUNALUR. - BY PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R1 SRI.B.MOHANLAL FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **M. SASIDHARAN NAMBIAR, J.** -----------------------------------------CRL.R.P. NO. 2604 OF 2007 -----------------------------------------Dated this the 23[rd] day of September, 2008 ## **O R D E R** Petitioner was concurrently convicted and sentenced for the offence under section 420 of Indian Penal Code. Second respondent originally filed a complaint, which was taken cognizance by Judicial First Class Magistrate, Thiruvananthapuram-V as C.C.258 of 2001 alleging that petitioner committed offence under section 138 of Negotiable Instruments Act. Petitioner defended the case contending that the dishonoured cheque does not relate to the account maintained by him. On the failure of the second respondent to prove that cheque was issued in the account maintained by petitioner, petitioner was acquitted for the offence under section 138 of Negotiable Instruments Act under Ext.D2 judgment. Second respondent thereafter filed a complaint which was taken cognizance by the Judicial First Class Magistrate, Punalur as C.C.978 of 2003 against the petitioner as first accused and second accused contending that in furtherance of their common 2 CRRP2604/07 intention they committed the offence under section 420 of Indian Penal Code. As against the original case, in C.C. 258 of 2001, second respondent contended that both the accused approached him and borrowed Rs.1,00,000/- making him believe that the cheque relate to the account maintained by petitioner, though in fact it relates to the account maintained in the account of the second accused, and induced him to part with Rs.1,00,000/- and it was done with the intention to cheat him and both the accused thereby committed the offence under section 420 of Indian Penal Code. Both the accused pleaded not guilty. 2. Learned Magistrate on the evidence of PWs 1 to 3 and Exts.P1 to P9 on the side of the prosecution and Ext.D1 and D2 on the side of defence found second accused not guilty and acquitted him. Petitioner was found guilty and was convicted and sentenced to undergo simple imprisonment for six months and to pay a compensation of Rs.1,00,000/- for the offence under section 420 of Indian Penal Code. Petitioner challenged the conviction and sentence before Sessions Court, Kollam in Criminal Appeal 305 of 2006. Learned Sessions Judge on reappreciation of the evidence confirmed the conviction, but 3 CRRP2604/07 reduced the substantive sentence to simple imprisonment for three months and also provided a default sentence for the compensation awarded by the learned Magistrate. It is challenged in this petition filed under section 397 and 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner argued that conviction of the petitioner is not sustainable on the facts and evidence. It was argued that the Courts below should have acquitted the petitioner as the second complainant amounts to double Jeopardy barred under section 300 of Code of Criminal Procedure, as on the same facts petitioner was tried for the offence under section 138 of Negotiable Instruments Act earlier and on that sole ground the conviction is to be set aside. The learned counsel also argued that ingredients of an offence under section 420 of Indian Penal Code is not made out in the complaint and a reading of the complaint does not disclose who induced the petitioner to part with the money and who issued the cheque and as it could be by the second accused also petitioner cannot be convicted. 4. Learned counsel appearing for second respondent submitted that ingredients of an offence under section 138 of 4 CRRP2604/07 Negotiable Instruments Act is entirely different from the ingredients of an offence under section 420 of Indian Penal Code and the bar provided against a second trial is only for the same offence or the same facts and trial of the petitioner for the offence under section 138 of Negotiable Instruments Act does not amount to double Jeopardy barred under section 300 of Code of Criminal Procedure. Reliance was placed on the decision of this Court in **Anto v. Union of India (1991 (2) KLT 341)** . Learned counsel also argued that even in the first complaint it was the specific case of second respondent that petitioner borrowed the amount and issued the dishonoured cheque and though in the complaint it was not specifically stated that petitioner induced second respondent or he issued the cheque, a reading of the complaint shows that the case was that petitioner along with second accused came to his house and induced second respondent to part with Rs.1,00,000/- making him believe that Ext.P1 cheque is being issued from the account maintained by petitioner, when in fact it was a cheque in the account of the second accused and therefore conviction of the petitioner under section 420 of Indian Penal Code is perfectly legal and correct and warrants no interference. 5 CRRP2604/07 5. Section 300 of Code of Criminal Procedure provides that a person, who has once been tried by a Court of competent jurisdiction for an offence and either convicted or acquitted of such offence, shall not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof, so long as the conviction or acquittal remains in force. Section 221 of Code of Criminal Procedure provides the procedure to be adopted where it is doubtful what offence has been committed. Under sub-section (1), if a single act or series of acts is of such a nature that it is doubtful which of several offences, the facts which can be proved to constitute, all or any of such offences, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences. An offence under section 138 of Negotiable Instruments Act is the failure of the drawer of the cheque, to pay the amount covered by the dishonoured cheque, on receipt of the notice within fifteen days. 6 CRRP2604/07 The facts necessary for constituting the offence are issuance of a cheque from the account maintained by the drawer for the discharge of an existing lawful debt, its dishonour for want of sufficient funds, issuance of notice, receipt or refusal of the notice and failure to pay the amount as demanded in the notice. Therefore the main ingredient is the failure to pay the amount covered by the dishonoured cheque, when demanded in writing within the statutory period on the dishonour of the cheque for insufficient funds. But the main ingredient of an offence under section 420 relates to the parting of money by the complainant on the inducement made by the accused with an intention to cheat him. It relates to the original transaction. Therefore when an offence under section 420 of Indian Penal Code mainly relates to the original transaction, by which money is parted by the complainant on the inducement of the accused with the intention to cheat, an offence under section 138 relates to his failure to repay the said amount consequent to the dishonour of the cheque, after receipt of the notice demanding the same. Therefore it cannot be said that trial of the petitioner in C.C.258 of 2001, was either for the same offence or on the same facts which constitute the offence. Therefore section 300 of Code of 7 CRRP2604/07 Criminal Procedure is not a bar for trying petitioner for the offence under section 420 of Indian Penal Code, for the reason that he was acquitted of the offence under section 138 of Negotiable Instruments Act under Ext.D2 judgment. This is the same position taken by the Court in Anto’s case (supra). 6. It is true that in the earlier complaint second respondent specifically contended that petitioner borrowed the amount and issued Ext.P1 cheque, which was subsequently dishonoured when presented for encashment, and in the second complaint he did not specifically mention which of the two accused induced him to part with the money and instead the pleading was that both the accused induced him with an intention to cheat and second respondent parted with the money. But a reading of the complaint along with evidence of PW1 establish that there was no change in the case projected by second respondent, even though he modified the case stating that second accused also approached him and induced him along with petitioner making him believe that the cheque relates to the account maintained by petitioner. It is clear from the evidence that second respondent was made to believe that the cheque relate to the account maintained by the petitioner and it could CRRP2604/07 8 be realised by encashing Ext.P1 cheque. It is proved that Ext.P1 cheque, though issued by petitioner, relates to the account maintained by second accused. Therefore it is proved by the evidence that second respondent was made to part with money, by the inducement of the petitioner that it is a cheque issued in the account maintained by petitioner and it is consequent to that inducement the money was parted. In such circumstances, I do not find any reason to interfere with the finding of the Courts below that petitioner committed the offence under section 420 of Indian Penal Code. 7. Then the question is with regard to the sentence. Section 420 of Indian Penal Code provides for a sentence of imprisonment for a term which may extend to seven years and fine. Therefore a substantive sentence in addition to the fine is mandatory. Learned Sessions Judge reduced the sentence to simple imprisonment for one month in addition to maintaining the compensation for Rs.1,00,000/- awarded by the learned Magistrate. Considering the facts and circumstances of the case, interest of justice will be met if the sentence is modified to imprisonment till rising of the Court, in addition to the compensation awarded by the learned Sessions Judge. But as 9 CRRP2604/07 declared by the Apex Court, a default sentence cannot be part of the sentence for compensation under section 357(3) of the Code of Criminal Procedure. Therefore the default sentence is set aside. The revision is partly allowed. While confirming conviction for the offence under section 420 of Indian Penal Code, the sentence is modified to imprisonment till rising of the Court and a compensation of Rs.1,00,000/- to be paid to second respondent within two months from today. Petitioner is directed to appear before learned Magistrate on 25.11.2008. ## **M. SASIDHARAN NAMBIAR, JUDGE** Okb/-