1982 Supreme(MP) 89

R. L. Murab, J.
Daulatram v. Kishorilal
Cr. Revn. No. 71 of 1980 (G); Decided on 8-2-1982.

Headnote:Penal Code, 1860 -- S. 420 -- offence of cheating under -- accused issuing post dated cheques against execution of money decree -- cheques not honoured due to absence of amount in bank -- offence established prima facie for framing of charge.

        In execution of the decree, the non-applicant issued cheques towards the decretal amount, one on 25-5-78 for Rs. 125/-, the second on 30-5-1978 for Rs. 125/- and the third on 15-6-78 for Rs. 150/-. These cheques were not honoured by the Bank and endorsement was made referred to drawer.

        The applicant filed a Criminal complaint under section 420 of the Indian Penal Code against the non-applicant alleging, amongst other things, that the post dated cheques were deliberately, falsely, dishonestly and knowingly issued by the non-applicant that the funds for payment of the cheques were not available in his account. The non-applicant had no intention to pay the decretal amount. The trial Court, after recording the statement of the applicant, summoned the non-applicant and after hearing the parties framed the charge under section 420 of the Indian Penal Code against the non· applicant on 16-4-79. As already stated, the Additional Sessions Judge allowed the revision and directed the non-applicant to be discharged.

        Held : Undoubtedly, the non-applicant who is proprietor of Firm Bhagwandas Kishorilal, Lohia Bazar, Lashkar, Gwalior, having taken the two amounts mentioned above, and executing the hundis payable after 90 days, did not repay and ultimately, a suit was filed and decreed. In execution of the decree, three post-dated cheques were issued by the non-applicant which were not honoured saying that the non-applicant did not have the amount in the Bank.

        The above facts prima facie, show that the post-dated cheques were issued deliberately, dishonestly and knowingly that the funds for payment were not available in the Bank. The trial Court after recording the evidence and hearing the parties, was satisfied that prima facie the facts constituted an offence under section 420 of the Indian Penal Code and therefore, framed charge thereunder. The Additional Sessions Judge appears to have allowed the revision on flimsy grounds. One of the grounds was that the non-applicant might not be having the amount in the Bank and hence he issued post-dated cheques. This obviously appears to be merely surmise. On the other hand, if the non-applicant did not have the guilty conscious, he would have made all efforts to see that the amounts were deposited in the Bank before the date. Another ground to allow the revision is that the Additional Sessions Judge tried to distinguish the case of Barkatali v. Fateh Mohd. [1979 (1) M.P. Weekly Notes 5] which was on all fours with the instant case. The feature which prompted the Additional Sessions Judge to distinguish it was that in that case a huge amount of Rs. 1,18,000 was involved, while in our case, the amount involved was small. It is difficult to appreciate the manner in which the Additional Sessions Judge distinguished the said decision of our High Court. 1979 (1) MPWN 5 relied on. Revision allowed.