P D SUGUTHAN Vs. O K MURALEEDHARAN NAIR

JUDGEMENT

(1.) THE challenge in this appeal is against the judgment dated 31.5.2008 in C.C.No.1023 of 2002 of the court of Judicial First Class Magistrate-Thiruvalla, by which the learned Magistrate acquitted the accused under section 248 of Cr.P.C. who faced the prosecution for the offence punishable under section 420 of IPC at the instance of the appellant, who is the complainant thereunder.

(2.) THE case of the complainant is that the accused borrowed a sum of Rs.1,90,000/- from the complainant on 6.5.1998, agreeing that the said amount with interest will be repaid within 11 months and accordingly an agreement was executed to that effect. It is the further case of the complainant that as the amount was not paid in time, mediators were intervened at the instance of the complainant and accordingly on 29.7.1999, the accused issued Ext.P2 cheque for an amount of Rs.2,38,450/- which when presented for encashment, dishonoured stating that the account was closed as early as on 20.1.1992. Thus according to the complainant, the accused has committed the offence under section 420 of IPC.

(3.) IN the light of the contention advanced by the counsel for the appellant, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of his challenge against the judgment of the trial court and also against the order of acquittal recorded in favour of the accused. Going by the arguments of the learned counsel and the findings of the court below, it can be seen that, the undisputed case of the complainant is that he had paid an amount of Rs.1,90,000/- to the accused on 6.5.1998, on the assurance of the accused that the same will be returned with interest within 11 months. It is also the case of the complainant that, an agreement was also executed on 6.5.1998 stating the terms and conditions of the transaction. It is the further case of the complainant that, inspite of the written agreement and borrowal of the amount, and contrary to the terms of the agreement, the amount was not repaid within the stipulated time and therefore at the intervention of the mediators at the instance of the complainant, the accused issued a cheque on 29.7.1999 for an amount of Rs.2,38,450/-. According to the complainant, when the said cheque was issued for the said amount, there was no account in the name of the accused, since the cheque in question pertains to an account which was closed as early as on 20.1.1992. Therefore, it is the further case of the complainant that at the time of issuing the cheque in question, the accused was fully aware of the fact that the cheque is not going to be honoured as there was no such account. On a reading of section 420 of IPC keeping in mind the evidence and materials in the present case, one can easily come into a conclusion that, the complainant has miserably failed to establish that, at the time of the alleged borrowal of the amount, the accused has dishonestly induced the complainant, as there is no materials and evidence to attribute fraudulent inducement and intention on the accused, at the time of entering into the transaction. The complainant has no case that he had parted that much amount on receiving Ext.P2 cheque. It is beyond dispute that Ext.P2 cheque was given on a later stage and therefore, it cannot be said that the complainant was induced to part a sum of Rs.1,90,000/- to the accused.