RAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER is the accused in Crime 276 of 2001 of pandalam Police Station registered under S. 420 of the Indian Penal Code. The above crime was registered on the basis of a complaint given by the 5th respondent in the Court of the Judicial Magistrate of the First Class, Adoor and which was forwarded to the police for investigation under S. 156 (3) of the criminal Procedure Code. The petitioner was the Managing Director of a U. A. E. based company by name 'best Home Contracting Company'. The company was under the absolute control and management of the petitioner and the business done by the company was to engage in building contracts. Sabah Engineering and Marine services had business transactions with the petitioner and he had awarded many subcontract works to Sabah Engineering and Marine Services for fabricating and erecting various industrial sheds, canteens, labour camps etc. in various places in U. A. E. According to the 5th respondent, the complainant, Sabah Engineering and Marine Services completed the entire projects awarded by the petitioner and handed over the same to him. The 5th respondent is the Works-cum-Legal Manager of Sabah Engineering and Marine Services.

(2.) ACCORDING to the 5th respondent, U. A. E. Dirhams of 10,90,866 was due from the petitioner to the 5th respondent and in partial discharge of the liability petitioner issued seven post-dated cheques and another cheque for a total amount of U. A. E. Dirhams of 6,38,069 in favour of sabah Engineering and Marine Services. All the above cheques were drawn in the account maintained by the petitioner with Commercial Bank International, Main branch, Dubai, U. A. E. All the above cheques were dishonoured by the bank for the reason that there was no sufficient amount in the account of the petitioner. Even though dishonour of the cheque was informed to the petitioner, he did not make any payment.

(3.) IN Ali v. Mammutty (1988 (2) KLT 880) it was held that the dishonest intention has to be there even at the time of making the promise. IN the above decision it was held that a mere deceit will not be sufficient to constitute the offence. It was said in the above decision that mere fraudulent or dishonest inducement alone will not be sufficient to constitute the offence. The Court went on to say that the deceit with the requisite mental element must precede the dishonest or fraudulent inducement. What can be understood from the above decision is that for the purpose of cheating there must be deception which should precede the fraudulent or dishonest inducement and it must be established that the intention of the accused was dishonest even at the time of making the promise. The submission made is that there is no averment in Ext. P-5 complaint that there was dishonest intention on the part of the petitioner even at the time when the cheques were issued. It is true that there is no statement in so many words that there was dishonest intention at the time when the post-dated cheques were issued. But in the complaint there is statement that the act of the accused in not arranging the funds to honour the aforesaid cheques and also removing his properties from U. A. E. in cash as well as by other means, amounts to the commission of offence of cheating as defined under s. 420 of the INdian Penal Code. There is also statement that when the cheques began to get dishonoured the accused absconded and fled from U. A. E. with the entire amount due to the complainant's establishment as well as many others amounting to crores of rupees. The question to be considered is whether on a reading of the entire statements in Ext. P-5 it could be said that the complaint is bad for the absence of specific averment that even at the time of issuing the cheques the petitioner was having the dishonest intention not to pay the amount,