SURENDRAN Vs. RAMACHANDRAN NAIR
HIGH COURT OF KERALA
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(1.) The revision petitioner is the accused in C. C. No. 351/66 on the file of the Sub Magistrate's Court, Quilon-1. The complaint against the accused was that he committed an offence punishable under S.417 of the I. P. C. in that he issued a cheque and that the cheque when presented for payment in the Bank concerned was dishonoured. The learned Magistrate finding that there was a prima facie case has issued process to the accused under S.204 of the Crl. P. C. According to the accused the Magistrate should not have taken cognizance of the offence by issuing process to the accused under S.204 of the Crl. P. C. as he should have found that the allegations in the complaint do not make out an offence. He filed a revision (Crl. R. P. 6 /1966) before the District Magistrate (Judl.), Quilon, to quash the proceedings of the Sub Magistrate. That was dismissed. Hence this revision.
(2.) To decide the question whether the commission of any offence is disclosed by the allegations in the complaint it is necessary to advert to a few facts. The complainant had joined the service of the United Traders (Regd)., Thiruvalla. On his joining the service he had deposited Rs. 500/- as security with the petitioner. The amount was refundable to the complainant after the termination of his services and after adjustment of accounts. On the expiry of the period of service, the complainant's services were terminated. The complainant then demanded the deposit amount he had given as security from the accused. The accused told him that he had no cash with him, but he, however, gave the complainant a cheque for Rs. 500/- drawn on the Marthandom Commercial Bank Ltd., Thiruvalla. When the cheque was presented in the Bank it was dishonoured as there were no funds of the accused in his account.
(3.) The contention of the accused is that these allegations, even if proved, would not make out the offence of cheating. S.415 says:
"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 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 body, mind, reputation or property is said to 'cheat'."
The first part of the section will not apply for the reason that the complainant has not delivered any property or consented that any person shall retain any property even if it be assumed that he has been deceived by the accused. As regards the second part, it is clear that in order that that part may come into operation, it must be made out that the person deceived did or omitted to do something which he would not have done or omitted to do if he were not so deceived, and which act or omission caused or was likely to cause damage or harm to that person in body, mind, reputation or property. In this case the cheque was issued to the complainant on the basis of an antecedent liability because the accused was bound to pay over to the complainant the amount of the security deposited by him when he was appointed to the service. Although there was an implied representation by the accused when he issued the cheque that he would have sufficient funds in the bank for honouring the cheque when presented, the only act done by the complainant on the faith of the representation was to take the cheque and present it to the bank. Can it be said that this act has caused any damage to the complainant's body, mind, reputation or property I think not. His position after taking the cheque and its dishonour was the same as it was before. The liability of the accused to the complainant for the amount remained the same after and before the dishonour of the cheque. It cannot, therefore, be said that by taking the cheque the complainant sustained any damage to his body, mind, reputation or property. There are no allegations in the complaint that by taking the cheque on the faith of the implied representation of the accused the complainant sustained any damage in his mind, body, reputation or property. If that be so, the complaint does not disclose the elements necessary to constitute the offence of cheating. In the circumstances, therefore, it has to be held that the order passed by the District Magistrate must be set aside and the complaint dismissed, and I do so.
The revision petition is allowed.;
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