SRIRAMULU Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The revision petitioner is the accused in Calendar Case No.83 of 1996 on the file of the Judicial Magistrate, Manaparai and the appellant in C.A.No. 44 of 1998 on the file of the first Additional Sessions Judge-cum-Chief Judicial Magistrate, Trichy. He was charged and tried for an offence falling under Sections 406 and 420 of the Indian Penal Code. The learned trial Magistrate found him guilty for the offence punishable under Section 420 of the Indian Penal Code alone and sentenced him to undergo rigorous imprisonment for six months together with fine of Rs. 1000/- carrying a default sentence. His appeal was also dismissed on merits. Hence, the revision. Heard Mr. A Ramesh, learned Counsel for the revision petitioner and Mr. R. Karthikeyan, learned Government Advocate on the criminal side for the State.

(2.) It is the contention of the learned Counsel for the revision petitioner that on the facts established, no offence of cheating at all is made out and therefore the conviction cannot be legally sustained, though it had been concurrently held by the Courts below that the accused is guilty of the offence of cheating. The learned Government Advocate on the other hand would contend that the materials available on record do show that the accused is guilty of the offence of cheating and therefore no exception could be taken to the finding of guilt arrived at by the Courts below concurrently.

(3.) The revision petitioner was running a chit transaction. P.Ws. 1 to 3 are the subscribers. All the subscribers have remitted the instalments to the credit of their respective chit. The accused did not reimburse the money due to each of the subscriber though they are entitled to get the reimbursement of the same on the maturity of the chit. All these facts are not in dispute. The question is whether all these facts put together can show that the accused is guilty of the offence of cheating as defined under Section 415 of the Indian Penal Code. It is no doubt true that in Ex.P-2, the receipt issued by the accused to the subscribers, namely. P.Ws. 1 to 3, it is stated that the chit company run by the accused is a registered chit company. In the complaint also it is stated that believing that the chit company run by the accused is a registered chit company, the subscribers have started subscribing their money towards that chit. This statement in the complaint, no doubt, would attract the ingredients of Section 415 of the Indian Penal Code. However in oral evidence there is absolutely no whisper at all by any one of the subscribers that at that time when they entered into chit transaction they were made to believe either orally or by any documentary evidence that the chit company run by the accused was a registered one, which alone made the subscribers to join in the chit transaction and subscribe to it. It is the dishonest intention on the part of the accused at the inception which will be the guiding factor to decide whether the conduct of the accused would amount to cheating or not. In other words the mens rea of the accused to cheat should be shown to be in existence at the inception when the parties met. In this case, that evidence is totally lacking. It may be true, as spoken to by the witnesses, that the subsequent conduct of the accused had put them on caution resulting in the complaint being lodged. Any amount of subsequent conduct on the part of the accused, even assuming it is thoroughly dishonest, would not bring home the guilt of the offence of cheating unless the prosecution establishes that at the inception point of time the accused has the intention to cheat the subscribers.