R VISWANATHAN Vs. R VISWANATHAN

JUDGEMENT

(1.) This is an application to quash the proceedings in C. C. No. 396 of 1987 on the file of the X- Metropolitan Magistrate Secunderabad. The petitioners are the accused in the said case. The first respondent herein is the complainant. The complaint was filed for the offence of cheating under section 417, Indian Penal Code, The allegations are that the complainant is working as the works manager of Bharat metal Box Company in Hyderabad. The first accused is the managing director and the second accused is the director of Omega Packaging P. Ltd. Valsad, Gujarat. State. The first accused is doing his business in Hyderabad. The complaint procured orders from the company of A-1 on commission being given. The first accused visited Hyderabad and finalised the terms of working of the complainant for his company. As per the procurement orders, the complainant commenced work for 17/03/1986. During the course of his work the complaint submitted various bills to A-1. On 1/04/1987, A-1 instructed the complainant to visit Valsad, the place of his company to verify the accounts for settling the amount in regard to his outstanding bills, The complainant went to Valsad and stayed there for some days. On 4/05/1987, A-1 promised to give a draft for the full amount. But he gave a cheque for Rs. 20,000 towards part payment, The complainant required to Hyderbad and presented the cheque in Andhra Bank. A few days after presentation of the cheque. A-1 instructed the bank to stop payment. Consequently the cheque was dishonoured. Therefore, the accused have committed the offence of cheating.

(2.) Learned counsel for the petitioner submits that the ingredients of cheating have not been made out, inasmuch as, issuing of the cheque which is subsequently dishonoured, is not at all cheating. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall return any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit to do if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body. mind reputation or property is said to "cheat". It is submitted that the relationship of creditor and debtor remained even through the cheque was dishonoured. Reliance is placed on the judgments of this court in Nagesh Pal V. P. S. Shanmuganathan [1987] APLJ (Sh. N) 18 and P. Eswaara Reddy V. State of A. P. [1985] APLJ 195. In both these cases, there is a reference to the decison of the Madras High Court in Chidambaram Chettiar V. Shanmugham Pillai, AIR 1938 Mad 129 and of the Kerala High Court in K. Surendran V. P. Ramchandran Nair [1967] MLJ (crl) 793. In the latter decision, Mathew J. observed thus:

(3.) Therefore, learned counsels general submission is that, in all cases, even if the cheque is dishonoured, it does not amount to an offence. It can not be universally accepted. It depends on the facts of each case. If the re are allegations to the effect that the accused had the dishonest intention not to pay even at the time of issuance of the cheque and the act of issuing a cheque which was dishonoured has caused damage to his mind, body or reputation it amounts to cheating. In the instant case, in paragraph of the judgment, it is clearly mentioned that while drawing the cheque on 4/05/1987, at Valsad on the instructions of accused No. 1, accused No. 2 did not have any intention to make the payment to the complainant and that both accused Nos. 1 and 2 fraudulently and dishonestly induced the complainant to receive the cheque for Rs. 20, 000 knowing fully well that no payment will be made to the complainant under the said cheque. There fore, the cases cited by learned counsel for the petitioners may not apply. It is difficult to say at this stage that no offence is made out. If the allegations are accepted, some evidence has to be let in. However, the observations made herein do not, in any manner, influence the trial. Accordingly the criminal petition is dismissed.