ORDER :

Whether the offence of cheating punishable under Section 417 I.P.C or Section 420 I.P.C is attracted if a person, after voluntarily closing his account, issues a cheque towards the discharge of a pecuniary liability, leading to the inevitable consequence of its dishonour on the ground ‘account closed’? It is the above question, which is to be resolved in this revision petition.

2. The facts, in conspectus, necessary for the disposal of this petition are as follows :

The revision petitioner is the de facto complainant, and the 1st respondent is the accused, in C.C.No.561/1999 of Judicial First Class Magistrate Court-I, Aluva, a case instituted on Police Report in respect of the offence under Section 420 I.P.C. Offering a job for the son of the revision petitioner at Appollo Tyres, the 1st respondent is said to have obtained an amount of Rs.50,000/- from the revision petitioner on 07.10.1997. When the revision petitioner demanded repayment of the above amount after the failure of the 1st respondent to arrange a job to his son as agreed, the 1st respondent is said to have issued a cheque on 25.04.1998, bearing the same date, for an amount of Rs.50,000/- to the revision petitioner. When the cheque was presented for collection, it was dishonoured stating the reason that the 1st respondent had closed the account in which the above cheque has been drawn, as early as 13.01.1998. A complaint preferred by the revision petitioner before the Judicial First Class Magistrate-I, Aluva, alleging the commission of the offence under Section 420 IPC against 1st respondent, was forwarded to the Police under Section 156 (3) Cr.P.C., leading to the registration of Crime No.927/1998 by the Aluva Police. After the completion of the investigation, the Assistant Sub-Inspector of Police, Aluva filed final report before the Judicial First Class Magistrate-I, Aluva, alleging the commission of offence under Section 420 IPC.

3. In the trial that followed five witnesses were examined from the part of the prosecution as PW1 to PW5, and five documents marked as Exts.P1 to P5. The 1st respondent also tendered evidence as DW1, and brought on record four documents, which are marked as Exts.D1 to D4. The learned Magistrate, after evaluation of evidence and hearing both sides, found the 1st respondent guilty of commission of Section 420 IPC and convicted him. He was accordingly, awarded a sentence of simple imprisonment for one year with a direction to pay compensation of Rs.50,000/- to the revision petitioner under Sec.357(3) Cr.P.C with a default clause of simple imprisonment for three months.

4. However, in the appeal preferred by the 1st respondent before the Additional Sessions Court, North Paravur as Crl.Appeal No.96/2003, the learned Additional Sessions Judge found that the offence under Sec.420 IPC is not attracted in the facts and circumstances of the case. Accordingly, the 1st respondent was acquitted of the above charge by setting aside the conviction and sentence imposed by the learned Magistrate. Aggrieved by the above judgment of the Additional Sessions Court, North Paravur, the de facto complainant is here with this revision petition.

5. In spite of service of notice, the 1st respondent did not care to appear in these proceedings or to advance arguments.

6. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor representing the 2nd respondent – State of Kerala.

7. Sec.415 of the Indian Penal Code reads as follows :

“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 retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit 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".

Explanation.—A dishonest concealment of facts