IMPORTANT POINT
The judgment establishes that the absence of dishonest intention at the inception of a transaction is critical for a conviction under Section 420 IPC, and that a complaint under Section 138 of the N.I. Act is not maintainable if filed prematurely.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

This criminal revision has been filed against the judgment of dismissal of Criminal Appeal No. 59 of 2017 dated 15.01.2019 passed by Additional Sessions Judge-I, Rajmahal.

2. The petitioner has been convicted vide judgment dated 18.11.2017 for the offence under section 420 of Indian Penal Code (in short I.P.C.) and section 138 of the Negotiable Instruments Act, 1881 (in short N.I. Act) in a complaint case being P.C.R. Case No. 673 of 2014 the Judicial Magistrate, 1st Class, Rajmahal.

3. The petitioner has been punished to undergo Rigorous imprisonment of 3 years and to pay fine of Rs. 5000/- and in default of payment of fine to further undergo simple imprisonment for two months under section 420 IPC. Further the learned Magistrate has been pleased to impose simple imprisonment for one year along with payment of compensation amount of Rs. 8,00,000/- to the opposite party No. 2 (hereinafter referred to as the complainant) and in default of payment of compensation further undergo simple imprisonment for one month under section 138 of the N.I. Act.

Arguments of the petitioner.

4. The learned counsel for the petitioner submits that the basic ingredient of offence under section 420 of the Indian Penal Code is completely missing in the present case. He has submitted that there were transactions of money in connection with sale and purchase of land and an oral agreement was entered into between the parties and when the sale deed was not registered, the complainant approached the petitioner to get back the money and consequently a cheque was issued for the entire amount of Rs.4,85,000/- which bounced on account of the account being closed.

5. He submits that so far as the transaction of money regarding sale and purchase of land is concerned, there is no allegation in the entire complaint that the same had any element of cheating. However, the learned courts while convicting the petitioner for the offence under Section 420 IPC have found the petitioner guilty of section 420 of the I.P.C. on the ground that the petitioner had issued cheque of a closed account and therefore at the time of issuance of the cheque amount, the petitioner had no intention to return the money. Learned counsel has placed section 420 IPC and has submitted that the intention to cheat should have been alleged to have existed right at the time when the money was taken by the petitioner from the complainant and the act of the petitioner to return the money through a cheque even if it was of a closed account does not constitute cheating.

6. He has further submitted that the petitioner has also been convicted under section 138 of the N.I. Act. The legal notice in the present case was issued on 27.9.2014 and the complaint was filed on 17.10.2014. He submits that there is no evidence on record in connection with service of legal notice and the legal presumption by way of deemed service of notice could be only upon expiry of 30 days and thereafter 15 more days were to be made available to the petitioner to return the cheque amount and then the cause of action to file the complaint could arise after 45 days from the date of issuance of legal notice (i.e 27.09.2014). The learned counsel for the petitioner has relied upon a judgment reported in AIR 2015 SC 157 (Yogendra Pratap Singh versus Savitri Pandey).

7. Accordingly, the conviction of the petitioner for offence under Section 138 of the N.I. Act and also under Section 420 IPC is perverse and calls for interference in revisional jurisdiction to secure the ends of justice.

Arguments of the Opposite Party no.2.

8. Learned counsel appearing on behalf of the opposite party no. 2 while opposing the prayer of the petitioner has submitted that in revisional jurisdiction there is no scope for re-appreciation of evidence. He has further submitted that even if at the time of initial transaction of money regarding sale and purchase of land, there was no intent to cheat, but at the time of issuance