KALYANAKUMAR V Vs. STATE OF KERALA

JUDGEMENT

(1.) THE revision petitioner is the accused in CC No. 889 of 1996 on the file of the Chief Judicial Magistrate, Ernakulam. The second respondent herein prosecuted the revision petitioner alleging offence under S.406 of the Indian Penal Code. It is alleged that the revision petitioner and the second respondent had business dealings, out of which, as per two bills, a total sum of Rs.1,52,851.50 was due. The second respondent offered to pay the amount by cheque. Since it is an outstation cheque, the revision petitioner requested for cash payment or by demand draft for which the second respondent was not amenable. Ultimately, they resolved the dispute and the amount was entrusted to the revision petitioner with condition that the revision petitioner shall deposit the same in the account of the second respondent with the local bank at Erode where the revision petitioner was doing business and thereafter to withdraw the same by presenting two cheques. The revision petitioner deposited Rs.80,000/- and one cheque was got encashed. The balance amount was not deposited. According to the respondent, the conduct of the revision petitioner would amount to commission of offence under S.406 IPC.

(2.) RESPONDING to the process, the revision petitioner entered appearance. After furnishing the copy of the complaint, evidence was recorded under S.244 CrPC. On the side of the second respondent, three witnesses were examined and Exts. P1 to P8 were marked. After hearing the parties, a charge for offence under S.406 was framed. When it was read over and explained, the revision petitioner pleaded not guilty. Hence, he was sent for trial. No further oral evidence was recorded. Exts. P9 and P9(a) were marked. PWs. 1 to 3 were cross - examined. When questioned under S.313 CrPC, the revision petitioner denied the incriminating evidence. On his side, two documents were marked as Exts. D1 and D2. The learned Magistrate, on appraisal of the evidence, arrived a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for six months and a fine of Rs.12,000/- with a default sentence of simple imprisonment for another six months. The fine amount, if realized, was ordered to be paid to the second respondent as compensation under S.357(1) CrPC.

(3.) ASSAILING the legality, correctness and propriety of the above conviction and sentence, as confirmed in appeal, this revision petition was filed. The fact that out of the business transaction, a sum of Rs.1,52,851.50 was due to the revision petitioner is admitted. The averments in the complaint itself would show that the amount was entrusted to the revision petitioner to be remitted in Federal Bank at Erode so as to enable the revision petitioner to withdraw the amount after deposit. According to the learned counsel for the revision petitioner, it being the facts, the money entrusted to the revision petitioner is actually the property of the revision petitioner and that the understanding to deposit the amount in bank and then to withdraw by cheque was only to make record of the transaction. It was also argued that, Ext. D1, the decree in OS No. 335 of 1996 on the file of the Sub Court, Erode would show that the second respondent owed a further sum of Rs.4,92,025/- to the revision petitioner and in that circumstance, no offence under S.406 IPC would be established. At the most it could be said that there is breach of promise and not trust.