LAWS(KER)-2012-9-343

A.RAHIM Vs. HAKIM SHA

Decided On September 25, 2012
A.RAHIM Appellant
V/S
HAKIM SHA Respondents

JUDGEMENT

(1.) PETITIONERS are the accused in C.C. No. 760 of 2007. A private complaint was filed by the first respondent alleging offence under Sec. 420 read with Sec. 34 I.P.C. The complainant inter alia contended that the petitioners had borrowed Rs. 15 lakhs from the complainant and an agreement was entered into with regard to the same. They have promised to repay the amount for which they also issued three cheques for Rs. 10,00,000/- each. Those three cheques were dishonoured when presented for encashment. Notices were issued intimating the factum of dishonour. The amount was not paid. A complaint was filed by the complainant alleging offence under Section 138 of the Negotiable Instruments Act, 1881 ("N.I.Act for short"). That was taken on file by the learned Magistrate as S.T. Case No. 299 of 2006.

(2.) LEARNED counsel for the petitioner submits that in respect of the very same subject matter, complainant filed a complaint before the Magistrate alleging offence under Sec. 420 I.P.C. The same was forwarded to the Police under Sec. 156 (3) Cr.P.C. After investigation, police filed a refer report. Pursuant thereto, a protest complaint was filed. Learned counsel for the petitioners submits that the learned Magistrate took cognizance ignoring the fact that the police, after a detailed investigation, referred the case on the ground that the dispute is of a civil nature. It is also pointed out that it is in respect of the very same transaction the complainant filed complaint against the petitioners alleging offence under Sec. 138 of the N.I. Act. Though the learned Magistrate, in that case, convicted the petitioners in the appeal filed by them, the conviction and sentence passed against them were set aside. Copy of the judgment in that appeal was also produced before this Court (Crl.A. 9 of 2008 - judgment was rendered only on 17-7-2012) .

(3.) THE subsequent conduct may not be of much relevance. To find whether the accused had the dishonest intention to cheat the complainant, the promise or inducement should have been made by the accused at the very inception and it should have been made with the dishonest intention and the complainant should have been induced by that representation or inducement to part with the money or to do or omitting to do anything.