Failure to make funds available not an offence u /s 420 IPC.

This is an application under Sec.482, Crl.P.C. to quash the proceedings in C.C.No.680 of 1984 on the file of the Court of the Sub-Divisional Judicial Magistrate, Thiruvannamalai.

2. The brief facts are: On 21.4.1983, the petitioner-accused borrowed a sum of Rs.15,000 from the respondent-complainant by executing a promissory note in his favour. On the same date, the petitioner issued the post dated cheques bearing different dates, each for a sum of Rs.1,500, towards the discharge of the promissory note debt in favour of the respondent. On the ten cheques so issued, four cheques were honoured and the rest of the cheques bounced. When the respondent approached the petitioner and revealed the bouncing of the cheques, the petitioner promised to discharge the balance of the amount due to him. He never kept up his promise. The respondent, thereafter, preferred a complaint before the Vattavalam police station and the police, after investigation referred the complaint on the ground that it is of civil nature. Thereafter, the respondent filed a private complaint before the Sub Divisional Judicial Magistrate, Thiruvannamalai, on 6.7.1984. The petitioner, on receipt of the process from the Court, entered appearance before the Court. A charge under Sec.420, I.P.C., has been framed against the petitioner. It is only at that stage, the petitioner has come forward with the present application.

3. Thelearned counsel for the petitioner would contend, with all seriousness, that the averments made in the complaint, if perused, with care, caution and circumspection would reveal that no offence under Sec.420, I.P.C., could be made out and in the circumstance, of the case, and, if at all, the transaction entered into between the petitioner and the respondent is purely of a civil nature, and therefore, it is that the complaint filed as such is liable to be quashed. There is no manner of doubt whatever that the petitioner borrowed a sum of Rs.15,000 from the respondent by the execution of a promissory note on 21.4.1983. The allegations in the complaint further reveal that towards the discharge of the debt, the petitioner issued ten post-dated cheques each for Rs.1,500, to the respondent. At the time of issuance of these cheques, there was a specific representation made by the petitioner that the cheques would be honoured as future dates mentioned in the cheques impliedly stating that no funds were available on the date when the cheques were issued. The cheques, when presented on the due dates, in fact bounced. The post-dated cheques were issued towards the discharge of the debt under the promissory note executed by the petitioner in favour of the respondent. The cheques so issued could be construed only as a promise to pay the amount due under the debt on future dates. If the promise was broken by the dishonour of the cheques, the liability is only of a civil nature and not a criminal offence. The loan was taken by the petitioner only to meet a contingency as he was not having possession of funds in his bank. This aspect of the matter is made crystal clear in the complaint itself. The postdated cheques were issued towards the discharge of the debt hoping to make provision of funds available in the bank for the cheques to be honoured on future dates. No doubt, the petitioner was unable to make available sufficient funds in the bank of these cheques to be honoured. The subsequent failure of the petitioner to fulfil such a promise by itself is not sufficient to infer a dishonest intention which is an essential ingredient of the offence under Sec.420, I.P.C.

4. The learned counsel appearing for the respondent would draw my attention to the evidence of .P.W.1 recordedby the Court below prior to the framing of the charge. A perusal of the evidence of .P.W.1 so recorded of course reveals that at the time when the post-dated cheques were issued by the petitioner, he made a representation that funds were available in the bank. The evidence of .P.W