P C CHERIYAN Vs. KURVILLA
HIGH COURT OF KERALA
Click here to view full judgement.
(1.) THE revision petitioner was the accused in C. C. 108 of 1966 on the file of the Sub Divisional Magistrate, Chengannur. He was hauled up before the court on a complaint by one Kuruvila on a charge of cheating. THE case is that on 17-2-66 at 5 p.m. the accused went over to the complainant's house and demanded a loan of Rs. 2500/-. THE complainant was made to believe that the accused had sufficient funds in the Eraviperoor branch of the Thiruvalla East Co-operative Bank Ltd., but he could not withdraw any money since the working time of the bank was over. He was, however, ready with a signed cheque which was handed over to the complainant and the necessary entries were asked to be made by the complainant himself and accordingly the cheque was prepared for Rs. 2500/- and given over to the complainant. On presentation of the cheque to the bank on 23-2-66 the cheque was dishonored on the ground that he had no sufficient funds in the bank. It is on those allegations that the complaint was made under S.420 IPC. THE accused's plea was one of complete denial. According to him no amount was borrowed from the complainant and no cheque was issued by him. He had, however, lost two cheque leaves and that fact was then and there intimated to the bank by a registered letter. THE cheque produced by the complainant is one of the two cheque leaves lost by him. His case, therefore, is that in the cheque leaf that came into the hands of the complainant, the cheque was forged by him. THE learned Magistrate accepting the complainant's case has convicted the accused under S.420 IPC; but instead of passing a sentence he was released under S.4(1) of the Probation of Offenders Act on his entering into a bond for Rs. 200/- with two solvent sureties. On appeal the learned Additional Sessions Judge of Mavelikara having confirmed the above conviction and sentence, the accused has come up in revision.
(2.) I do not propose in this revision to go into the merits of the contentions of the parties, because any finding entered thereon will prejudice the complainant in his suit for recovery of money which be may file in the civil court. The conviction, T do not think, can be sustained, because the elements of cheating have not been brought out in the case. "The drawing up of a cheque does not imply any representation that the drawer has money in the bank to the amount shown in the cheque, for he may either have authority to overdraw, or have an honest intention of paying-in the necessary money before the cheque can be presented". (Vide Kunwar Singh v. The Crown ILR. 19 Lah. 662). A post-dated cheque is a mere promise to pay on a future date and the fact that the cheque is dishonoured, which amounts only to a broken promise, is not a criminal offence. "Giving of a cheque in lieu of money already due, with the knowledge that the drawer has no funds in the bank does not amount to an offence but is only a civil wrong", (vide Ratra v. Ganesh Dass 41 Cr. LJ. 394). But if a person gives a cheque which is dishonoured and from the circumstances it could be presumed that he must have been aware that the cheque would be dishonoured, he would be guilty under S.420. In the present case, there is no evidence to show that he was already aware of the fact that he bad no sufficient money in the bank and it was with that knowledge that he issued the cheque. On that ground, therefore, the conviction must go even granting that the cheque was issued by him. The requisite fraudulent or dishonest inducement to part with money has not been proved in the case. The remedy open to the complainant, in the circumstances, is by way of a civil suit for damages.
The revision petition is, therefore, allowed and the conviction and sentence arc set aside. Allowed.;
Copyright © Regent Computronics Pvt.Ltd.