PRAKASHAN Vs. VASUDEVAN

JUDGEMENT

(1.) Challenge in the revision is against the concurrent verdict of guilt rendered against the petitioner/accused for the offence under Section 417 of the I.P.C. He was prosecuted on a complaint filed by the first respondent (hereinafter referred to as 'the complainant'). The accused had pleaded not guilty to the offence. Negativing his plea of not guilty, after trial, the learned Magistrate found him guilty of the offence under Section 417 I.P.C,and convicting him thereunder he was sentenced to undergo simple imprisonment for six months. In appeal preferred by the accused, the learned Additional Sessions 262 Judge confirmed the conviction and upheld the sentence without any modification. Against the concurrent finding of guilt and ... conviction and sentence imposed, the accused has preferred this revision impeaching its legality, propriety and correctness.

(2.) Short facts involved in the revision can be summed up thus: The case of the complainant is that towards discharge of a loan availed, the accused issued Ext, P1 cheque for a sum of Rs.60,000 promising its encashment on presentation in due course. The cheque presented was, however, dishonoured with endorsement account closed. After issuing a statutory notice intimating dishonour and demanding the sum covered by the instrument which was responded to with a reply denying the liability, the complainant launched prosecution against the accused filing a complaint imputing the offences punishable under Sectionl38 of the Negotiable Instruments Act (for short 'the NI Act') and Section 420 of the I.P.C.

(3.) The learned Magistrate, after an enquiry under Section 200 of the Cr.P.C,took cognizance of the offence under Section 138 of the N.I. Act and ordered summons to the accused. Accused, on appearance, pleaded not guilty. On behalf of the complainant including himself two witnesses were examined as PWs 1 and 2, and Exs. P1 to P7 were exhibited. The accused questioned under Section 313 Cr.P.C. denying the prosecution evidence reiterated his plea of innocence. He had no defence evidence. The case was adjourned for arguments. The learned Magistrate, thereafter altered the charge to Section 417 I.P.C. which was read over and explained to the accused, to which also he pleaded not guilty other than recalling of PW1, the complainant, and his further examination, no further evidence was adduced. Accused was again questioned under Section 313 Cr.P.C. He maintained his innocence and adduced no defence evidence. Learned Magistrate, after examining the materials and hearing the counsel on both sides, found the accused guilty of the offence under Section 417 I.P.C. and he was thereupon convicted and sentenced as indicated, which was confirmed in appeal without modification by the learned Additional Sessions Judge. 4.1 heard the learned counsel for the accused and also the complainant. The allegation set out in the complaint and the materials tendered in the case do not constitute an offence under Section 417 of the I.P.C. and as such the conviction founded and sentence imposed against the accused are unsustainable under law and facts, is the submission of the learned counsel for the accused. A dishonour of cheque by itself cannot attract a charge under Section 420I.P.C. nor even under Section 417I.P.C. in the absence of material to show that a false representation was made and the complainant was persuaded to do or omit to do something on the basis of such false representation, according to the learned counsel for the accused. There is total paucity of evidence . in the case as to any false representation made by the accused and, further, issue of Ex. P1 cheque was alleged as in discharge of a loan availed much earlier and so much so, no offence under Section 417 I.P.C. was attracted to the case and, thus, the conviction for that offence against him cannot be sustained is the submission of the counsel. The learned counsel relied on M.S. Muraleedharan v. P.S. Vijaya-kumar1 to contend that in order to constitute an offence under Section 420 I.P.C. there must be some inducement by the accused to the complainant at the initial stage. 5. The learned counsel for the accused was called upon to enlighten this Court whether in the given facts of the case, even if conviction is found not sustainable under Section 417 I.P.C,if the materials produced establish an offence under Section 138 of the N.I. Act why the conviction and sentence against the accused should not be modified for such offence in exercise of the revisional jurisdiction vested with this Court to correct the infirmity, if it is so found, in the impugned judgments passed by the two inferior Courts. The learned counsel for the accused relying on Sohan Lal v. State of Rajasthan2, and Edward v. Victor Immanue3,rendered with respect to ambit and scope of Section 216 of the Cr.P.C. con fended that this Court in exercise of the revisional jurisdiction cannot alter the charge and convict the accused for a different offence and sentence him thereunder. Learned counsel for the accused vehemently urged that once the conviction of the accused founded on Section 417 I.P.C. is found unsustainable, he is entitled to an order of acquittal and he cannot be convicted for a different offence. It was also contended by the learned counsel placing reliance on Nagaraja Upadhya v. M. Sanjeevan,that no offence under Section 138 would lie on dishonour of a cheque returned unpaid with endorsement 'account closed'. Even if the materials produced in the case disclose commission of an offence under Section 138 of the N.I. Act by the accused in view of his conviction and sentence under Section 417I.P.C. concurrently by the two inferior Courts which cannot be sustained under law this Court cannot in exercise of revisional jurisdiction modify/alter the conviction to Section 138 of the N.I. Act and convict him thereunder, according to the learned counsel for the accused. Reliance is placed on Bhaskaran Nair v. Abdul Kareem5,and Salajan v. Krishnankutty6, by the learned counsel to contend in exercise of revisional jurisdiction such alteration or modification of the conviction for a different offence is not permissible. According to the learned counsel, as the two inferior Courts have not convicted him under Section 138 of it the N.I. Act, it has the effect of an acquittal and it cannot be reversed, and so much there cannot be any conviction for such offence by the revisional Court. Reliance is placed on State of Andhra Pradesh v. Thadi Narayana1, to contend that where several offences are charged against an accused person and he is acquitted of some offences and convicted of others in further proceedings against the conviction, the Court cannot order his retrial for the offences in respect of which he was acquitted earlier. 6. Before examining the merit of the submissions made by the learned counsel for the accused that no alteration of the offence and conviction thereunder is permissible it is appropriate to refer to a few aspects involved in the case. The accused prosecuted solely for the offence under Sectionl38 of the N.I. Act on a complaint imputing such offence, from the complainant, was given sufficient opportunity to meet the accusation made. After the entire prosecution evidence was over and also questioning of Section 313 Cr.P.C, with the accused further stating he has no defence evidence, the case was adjourned for arguments. The order sheet of the case would show that the counsel for the accused reported that there was no defence evidence on 31.12. 1998. After eleven adjournments for arguments, on 20.5.1999, the learned Magistrate passed an order, after perusing the records, that the charge has to be altered to Section 417I.P.C Accordingly, the charge against the accused was altered on 20.5.1999, which was read over and explained to him to which he pleaded not guilty. The complainant examined as PW1 was then recalled and further examined. The accused was again questioned under Section 313 of the Cr.P.C. He ' reiterated his innocence and submitted that he has no defence evidence. The learned Magistrate, thereafter, hearing the counsel on both sides, arriving at the conclusion that he was guilty of the offence under Section 417I.P.C.convicted him of that offence and imposed the sentence as indicated earlier. 7. The learned Magistrate had formed a conclusion on the materials tendered that as the account was closed before the cheque was handedover to the accused, and presented for encashment later with the result of its dishonour for the reason of the account closed, offence under Sectionl38 of the N.I. Act would not lie, but only the offence under Section 417of the I.P.C. Inevitably the view so formed by the learned Magistrate led to alteration of the charge and proceeding against the accused under Section 417 of the I.P.C. leading to his conviction and sentence thereunder. Learned Counsel for the accused is justified and fully correct in contending that the allegations made out in the complaint and as well as the materials produced do not constitute an offence under Section 417 I.P.C. and his conviction and . sentence thereunder by the learned Magistrate which was confirmed by the Additional Sessions Judge in appeal cannot be legally sustained. The larger question, however, remains whether the accused proceeded under Sectionl38 of the N.I. Act on a complaint filed by the first respondent for such offence can get himself absolved of such offence if the materials tendered in the case have established his guilt for such offence for the sole reason the Trial Court had proceeded against him after recording of the entire evidence in the case for a different offence and convicted and sentenced him for that offence and it was so confirmed by the Appellate Court. In examining that question, first of all, it has to be noted that the learned Magistrate at all justified in altering the charge from Section 138 of the N.I. Act to Section 417 of the I.P.C. after the entire evidence was recorded and questioning of the accused under Section 313 Cr.P.C, with the accused further submitting that he has no further evidence, for the reason that the cheque involved in the case was issued to the complainant by the accused in an account already closed. Whatever doubts persisting on the question whether a cheque issued in an account closed would come within the sweep of Section 138 of the N.I. Act had been settled by the Supreme Court in NEPC Micon Ltd. v. Magna Leasing Ltd.8 much earlier to the order passed by the learned Magistrate for altering the charge against the accused in the present case from Section 138 of the N.I. Act to Section 417 of the I.P.C. which, in fact, was ordered by him only on 12.1.2000. In the decision referred to above, the Apex Court has held thus: