A conviction under Section 420 IPC requires proof of intention to deceive at the transaction's inception; mere failure to repay does not suffice for cheating.

JUDGMENT :

JOHNSON JOHN, J.

This appeal by the complainant is against the acquittal of the accused for the offence under Section 420 IPC .

2. As per the complaint, on 07.01.2002, the accused approached the complainant at his residence and asked to lend him a sum of Rs.90,000/- for his urgent necessity and as such, the accused received Rs.90,000/- from the complainant and issued a cheque dated 08.01.2002 for Rs. 90,000/-. It is alleged that while issuing the said cheque, the accused dishonestly induced the complainant to believe that the amount is borrowed for the business in connection with the mill and that the cheque is issued by him as the proprietor of the mill. It is stated that believing the version of the accused, the complainant accepted the cheque and subsequently, when he presented the cheque for collection, the same was dishonoured for the reason ‘funds insufficient and account is individual and not in favour of the firm’.

3. Thereafter, the complainant issued notice dated 28.01.2002 to the accused and in spite of receipt of notice, the accused failed to pay the cheque amount to the complainant. It is further alleged in the complaint that the accused issued the cheque with the knowledge that the cheque was not drawn on an account maintained by the firm and he made the complainant to believe that the cheque is that of the firm Kanhirathinkal Oil and Flour Mills with the deliberate intention of cheating the complainant.

4. Before the trial court, PWs 1 to 4 were examined and Exhibits P1 to P7 were marked from the side of the complainant and from the side of the accused, DW1 examined.

5. After considering the oral and documentary evidence on record and hearing both sides, the trial court found that the complainant has not succeeded in proving any dishonest inducement at the initial stage of the transaction and that the complainant has not succeeded in proving the offence under Section 420 IPC against the accused and hence, the accused was acquitted.

6. Heard Sri. Salim Kumar, the learned counsel for the appellant, Sri. C.P. Peethambaran, the learned counsel for the accused/first respondent and Sri. Alex M. Thombra, the learned Senior Public Prosecutor appearing for the second respondent.

7. The learned counsel for the appellant argued that at the time of borrowing the amount, the accused misrepresented that he is the proprietor of Kanhirathinkal Oil and Flour Mills and that the cheque is issued in his capacity as the proprietor of the said mill and therefore, from the evidence of PWs 1 to 4, the trial court ought to have found that the accused had the intention of cheating the complainant from the very beginning and that the complainant has proved all the ingredients of Section 420 IPC against the accused.

8. The learned counsel for the accused/1^st respondent argued that the averments in the complaint and Exhibit P5, copy of the lawyer notice dated 28.01.2002, would clearly show that the alleged payment of money by the complainant to the accused prior to the issuance of the cheque was not on the basis of the alleged inducement that the cheque is drawn on an account in the name of the firm Kanhirathinkal Oil and Flour Mills.

9. In this connection, it is pertinent to note that in paragraph 2 of the complaint, it is stated as follows:

“On 07.01.2002 the accused approached the complainant at his residence at Kolichal at about 3 PM and asked to lend him a sum of Rs.90,000/- for his urgent necessity. As such the accused received the sum of Rs.90,000/- from the complainant in the presence of witnesses and for discharging the said liablity the accused issued a cheque dated 8.1.2002 for Rs.90,000/- (Rupees ninty thousand only) bearing number 540693 drawn on the North Malabar Gramin Bank, Padiyotchal Branch in favour of the complainant.”

10. In paragraph 3 of the complaint, it is stated as follows:

“It is submitted that the accused has issued the cheque knowingly that the aforesaid cheque was not drawn to the firm and thereby he dishonestly