The timing of the cheque issuance and the necessity of dishonest inducement are crucial in determining the offence of cheating under IPC 420.

Heard learned counsel for the petitioner and learned counsel for the State.

2. Petitioner is aggrieved by the order dated 15.2.2007 passed by the learned S.D.J.M., Bokaro, in C.P. Case No.125 of 1998 / Tr. No.26 of 2007, whereby the Court below has dismissed the application under Section 245 of the Cr.P.C., filed by the petitioner for discharge, directing the petitioner to appear for framing the charge for the offence under Section 420 of the I.P.C. and 138 of the N.I. Act.

3. The complainant O.P. No.2 filed a complaint case in the Court of the Chief Judicial Magistrate, Bokaro at Chas, which was registered as C.P. Case No. 125/1998. In the said complaint petition it was alleged that the petitioner took a friendly loan from the complainant. Though the petitioner demanded Rs 3,00,000/-as loan from the complainant, but the complainant could give Rs 2,05,000/-to the petitioner as loan. When the money was demanded back, the same was not returned back and ultimately, the petitioner issued a cheque for Rs.2,05,000/-bearing No.160517 dated 15.11.1997, drawn up upon United Bank of India, B.S. City Branch in favour of the complainant. The said cheque, when produced in the Bank, bounced. After giving due notice to the petitioner, the complaint petition was filed. The complainant supported his case in his statement recorded on solemn affirmation and two witnesses were also examined in the enquiry stage, on the basis of which, the prima facie offence was found against the petitioner under Section 420 of the I.P.C. and 138 of the N.I. Act and process was issued against the petitioner. After appearance of the petitioner some witnesses were examined before charge. The petitioner subsequently filed his application for discharge, which was rejected by the Court below.

4. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, in as much as, the loan allegedly taken by the petitioner was a friendly loan and there is no allegation of any intention to deceive the complainant at the time of advancement of the loan. Accordingly, no offence can be said to be made out against the petitioner under Section 420 of the IPC. It has also been submitted that filing of the complaint petition with regard to Section 138 of the N.I. Act is barred by limitation, in as much as, the complaint petition would show that the cheque had bounced on 26.3.1998, thereafter, the notice to the petitioner was given through registered post on 7.4.1998 and the complaint petition was filed on 12.5.1998. It is submitted that it is no where mentioned as to when the notice was received by the petitioner and accordingly, the date of sending the notice would be deemed to be date of receiving the notice and after the expiry of the period of one month thereafter, the complaint petition was filed.

5. Learned counsel placed reliance upon the decision of this Court in Kumar Ranjeev and Ors. Vs. State of Jharkhand and Anr., reported in 2012 (4) East Cr C 9 (Jhr), wherein where, the complainant had given the friendly loan of Rs.1,00,000/-to the accused and at the time of taking loan, a post dated cheque was given by the accused, which ultimately bounced, it was found by the Court that the very first element of deception constituting an offence of cheating was completely lacking in the case and as such no offence can be said to be made out against the accused under Section 418 of the IPC. Learned counsel has also placed reliance upon the decision of the Supreme Court of India in Md. Ibrahim and Ors. Vs. State of Bihar and Anr., reported in 2009 (4) East Cr C 6 (SC), wherein, the supreme Court has discussed the ingredients of the offence of cheating and has held that to constitute the offence under Section 420 of the I.P.C., there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived to deliver any property to any person or ought to make, alter o