K CHANDRAN Vs. PONNAPPA MOOTHAN

JUDGEMENT

(1.) The revision petitioner was prosecuted by the first respondent before the Judicial Magistrate of the First Class-II, Palakkad in C.C. No. 55/1999 alleging offence under Section 420 of the Indian Penal Code (IPC). By judgment dated 17/9/2001 the learned Magistrate arrived at a finding that offence under Section 415 IPC was established, convicted under Section 417 IPC and sentenced to simple imprisonment for one year and a fine of Rs. 5,000/- with a default sentence of simple imprisonment for a period of three months. Aggrieved by the above conviction and sentence, he preferred Crl.A. 393/2001 before the Sessions Judge, Palakkad. The Additional Sessions Judge, Palakkad to whom the appeal was made over, by judgment dated 31/1/2004, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence this revision petitioner is preferred.

(2.) The allegations against the revision petitioner are that on 25/10/1998 he borrowed a sum of Rs. 20,000/- from the first respondent agreeing to pay back on 13/11/1998. When demanded back the amount, the revision petitioner issued Exhibit PI cheque dated 5/12/1998. Hoping that the 1st respondent could recover the debt, Exhibit PI cheque was presented for collection. But it was returned dishonoured on 18/12/1998 with a statement that the account was closed long back. Though notice demanding discharge was caused, no payment was made. The facts stated earlier would show that Exhibit P1 post dated cheque was issued in discharge of an existing liability. There is no mention that when Exhibit P1 cheque was issued, any money or property was parted in pursuance to any inducement. True that there is concealment of the fact that the account was closed when the cheque was delivered. Even if it is assumed that the closing of the account was fraudulently or dishonestly concealed from the first respondent, it would not amount to cheating punishable under Section 417 IPC. Cheating is defined under Section 415 IPC which reads as follows: