IMPORTANT POINT
Dishonour of cheque by itself cannot attract a charge under Section 420 or Section 417, I.P.C.

S.S. Satheesachandran, J.—Challenge in the revision is against the concurrent verdict of guilt rendered against the petitioner/accused for the offence under Section 417 of the I.P.C. He was prosecuted on a complaint filed by the first respondent (hereinafter referred to as ‘the complainant’). The accused had pleaded not guilty to the offence. Negativing his plea of not guilty, after trial, the learned Magistrate found him guilty of the offence under Section 417 I.P.C., and convicting him thereunder he was sentenced to undergo simple imprisonment for six months. In appeal preferred by the accused, the learned Additional Sessions Judge confirmed the conviction and upheld the sentence without any modification. Against the concurrent finding of guilt and conviction and sentence imposed, the accused has preferred this revision impeaching its legality, propriety and correctness.

2. Short facts involved in the revision can be summed up thus: The case of the complainant is that towards discharge of a loan availed, the accused issued Ext. P1 cheque for a sum of Rs. 60,000 promising its encashment on presentation in due course. The cheque presented was, however, dishonoured with endorsement account closed. After issuing a statutory notice intimating dishonour and demanding the sum covered by the instrument which was responded to with a reply denying the liability, the complainant launched prosecution against the accused filing a complaint imputing the offences punishable under Section138 of the Negotiable Instruments Act (for short ‘the NI Act’) and Section 420 of the I.P.C.

3. The learned Magistrate, after an enquiry under Section 200 of the Cr.P.C., took cognizance of the offence under Section 138 of the N.I. Act and ordered summons to the .accused. Accused, on appearance, pleaded not guilty. On behalf of the complainant including himself two witnesses were examined as PWs 1 and 2, and Exs. P1 to P7 were exhibited. The accused questioned under Section 313 Cr.P.C. denying the prosecution evidence reiterated his plea of innocence. He had no defence evidence. The case was adjourned for arguments. The learned Magistrate, thereafter altered the charge to Section 417 I.P.C. which was read over and explained to the accused, to which also he pleaded not guilty other than recalling of PW1, the complainant, and his further examination, no further evidence was adduced. Accused was again questioned under Section 313 Cr.P.C. He maintained his innocence and adduced no defence evidence. Learned Magistrate, after examining the materials and hearing the counsel on both sides, found the accused guilty of the offence under Section 417 I.P.C. and he was thereupon convicted and sentenced as indicated, which was confirmed in appeal without modification by the learned Additional Sessions Judge.

4. I heard the learned counsel for the accused and also the complainant. The allegation set out in the complaint and the materials tendered in the case do not constitute an offence under Section 417 of the I.P.C. and as such the conviction founded and sentence imposed against the accused are unsustainable under law and facts, is the submission of the learned counsel for the accused. A dishonour of cheque by itself cannot attract a charge under Section 420 I.P.C. nor even under Section 417 I.P.C. in the absence of material to show that a false representation was made and the complainant was persuaded to do or omit to do something on the basis of such false representation, according to the learned counsel for the accused. There is total paucity of evidence in the case as to any false representation made by the accused and, further, issue of Ex.P1 cheque was alleged as in discharge of a loan availed much earlier and so much so, no offence under Section 417 I.P.C. was attracted to the case and, thus, the conviction for that offence against him cannot be sustained is the submission of the counsel. The learned counsel relied on M.S. Muraleedharan v. P.S. Vijaya-kumar1