Revision petition challenging the concurrent findings of the courts below that the revision petitioner is guilty under Section 420 of the Indian Penal Code. 2. Heard the learned Senior counsel appearing for the revision petitioner, learned counsel for the 1st respondent and the learned Public Prosecutor.
3. Short facts necessary for disposal of the case are as follows :
P.W.1 filed a private complaint before the learned Magistrate alleging the said offence against the revision petitioner. It was forwarded to Police under Section 156 (3) of the Code of Criminal Procedure. Thereafter, Police registered a case and investigated the matter. A charge sheet was filed. After completing the formalities, the learned Magistrate tried the revision petitioner by examining 11 witnesses and marking 8 documents on the side of the prosecution. There was no defence evidence.
4. The gist of allegations in the complaint are as follows : On 03.02.1992, the revision petitioner/accused approached P.W.1 along with her husband and borrowed Rs.50,000/-. It was assured at that time that, she would return the money after one month. At the time of borrowing, the revision petitioner issued a cheque dated 15.03.1992. When the cheque was presented for collection, it was dishonored due to difference in the signature on the cheque and that on the specimen signature card provided to the Bank. When the cheque was dishonored, it was understood that the revision petitioner signed on a cheque, issued to the account maintained by her husband. Therefore, it is alleged that, at the inception of the transaction itself the revision petitioner was intending to cheat the respondent/complainant. I have carefully perused the oral evidence and the judgments of the courts below.
5. The impugned judgment shows that the learned Additional Sessions Judge had re-appreciated the entire evidence. P.W.1, the complainant testified that on 03.02.1992 the revision petitioner with her husband and child came to his house and borrowed Rs.50,000/- for purchasing a property. It is his version that, the revision petitioner agreed to re-pay the amount within one month. P.W.1 had enough money with him at that time, as he had proximately sold his wife's property. Ext.P2 is the cheque issued by the revision petitioner in discharge of that liability. It was found that, the revision petitioner/accused had no account with the Bank. Ext.P2 was drawn on the account of her husband. The cheque was returned for two reasons: (i) insufficiency of funds and (ii) the signature differed. It has come out in evidence that, P.W.1 was having acquaintance with the revision petitioner and her husband even prior to the transaction. P.W.1 emphatically deposed that the accused had entertained an intention to cheat him by evading re-payment.
6.P.W.2 is yet another witness, who supported the testimony of P.W.1. In spite of cross examination on these witnesses, I find no material brought out to discredit their versions.
7.P.W.3 is the Assistant Director (Documents) FSL, Thiruvananthapuram. The questioned cheque was sent for examination by a handwriting expert. The divergence between the signature on the questioned document and the admitted signatures were clearly spelt out in the report. The courts below considered the oral evidence, in the correct perspective and found that the revision petitioner executed the cheque at the time when money was borrowed from P.W.1 and it was handed over with a promise to pay after one month. It is also borne out from the evidence that, she had an intention not to re-pay money even at the time of borrowal.
8. The learned senior counsel appearing for the revision petitioner contended that, even in the complaint there was no case for P.W.1 that the Ext.P2 cheque was issued in discharge of a liability. What is mentioned in the complaint is only that, the cheque was issued for evidencing the borrowal of amount. Merely for that reason, it cannot be said that ingredients of cheating as defined under Section 415 of IPC were not pleaded.
9. On going through the complaint and also the testimony of P.Ws.1 and 2, I am of the definite view that the ingredients of cheating have been established. The learned senior counsel placed reliance on Ismail Pillai v.
Meera Sahib Abdul Jaleel [2010 (3) KLT SN 13 (C.No.16)] wherein a learned single Judge of this Court considered a case with similar allegation and decided as follows :
Here, in this case, the summary of the allegation is that the first respondent drew a cheque on an account maintained by the 2nd respondent and delivered it to the revision petitioner in discharge of an existing liability. Giving regard to the ingredients to constitute offence under S.420 I.P.C., assuming that the first respondent suppressed that the cheque in dispute was drawn by the first respondent on an account maintained by the second respondent, it would not amount to an offence under S.420 I.P.C., because there are no pleadings at all to the effect that at the time when the cheque was delivered, any property was parted or that there was any inducement to part with the property; or made, altered, destroyed the whole or any part of a valuable security, or anything which is signed or sealed and which is capable of being converted into a valuable security so as to cheat the revision petitioner. Probably, with the pleadings on record, in the process of issuing cheque in discharge of existing liability, it can be assumed that the first respondent might have played fraud. Such fraud would not establish an offence under S.420 I.P.C.
10. The facts in the above case and facts in this case are different. That apart, in this case there are ample pleadings in the complaint regarding the intention to cheat at the time of inception itself. Further the allegations have been proved by the oral evidence. Therefore, I find no application for the said decision to this case.
11. I find no reason to interfere with the concurrent findings of facts by the courts below and there is no illegality or impropriety in the conviction of the petitioner.
12. The learned senior counsel submitted that, the petitioner was a heart patient even at the time of filing this Crl.Revision petition. Documents are also produced to show that she was suffering from Rheumatic Heart Disease - Mitral Stenosis. Considering the entire facts and circumstances, I find that the sentence can be modified in this matter.
In the result, the conviction of the revision petitioner under Section 420 IPC is confirmed. The imprisonment imposed on her is modified to fine. She shall pay a fine of Rs.65,000/-. In default of payment of fine, she shall undergo simple imprisonment for a period of one month. If fine is recovered, it shall be paid as compensation to the complainant under Section 357 (1) of Cr.P.C.
AMV/03/12/ Sd/- A.HARIPRASAD, JUDGE.
/TRUE COPY/ P.A.TO JUDGE