The intention to cheat can be inferred from surrounding circumstances, and the issuance of a cheque from a closed account constitutes sufficient grounds for conviction under Section 420 IPC.

J U D G M E N T

This appeal is at the instance of the complainant in CC No.21 of 2003 on the file of Judicial First Class Magistrate Court, Kothamangalam, challenging acquittal of the accused, in a complaint filed by him under Section 420 of IPC as per judgment dated 14/8/2007.

2. The case of the appellant/complainant was that, on 31/10/2001 at 5.00 pm the accused borrowed Rs.50,000/- from him, saying that he could not take money from his bank account, as the bank time was over. At the time of receiving the amount, accused issued Ext.P1 cheque for the very next day i.e 1/11/2001, assuring him that there is sufficient amount in his bank account. Accordingly, the complainant presented the cheque before bank on 1/11/2001 itself. But it was returned dishonoured for the reason ‘account closed’. He sent a registered lawyer notice to the accused on 16/11/2001 and the accused received that notice on 19/11/2001. No reply was sent and the amount was not returned. Since the accused issued a cheque from his closed bank account and received Rs.50,000/- from the complainant with a view to cheat him, he filed the complaint under Section 420 of IPC .

3. After taking cognizance, and on appearance of the accused before the trial court, charge was framed under Section 420 of IPC , to which he pleaded not guilty and claimed to be tried.

4. PWs1 to 3 were examined and Exts.P1 to P6 were marked from the side of the complainant.

5. On closure of complainant’s evidence, accused was questioned under Section 313 of Cr.P.C through his counsel, as permitted by the court. Learned counsel for the accused denied all the incriminating circumstances brought on record. No defence evidence was adduced.

6. On analysing the evidence, and on hearing the rival contentions from either side, the trial court acquitted the accused finding that, prosecution failed to prove positively, that the accused had an intention to cheat the complainant at the time of issuing Ext.P1 cheque. Aggrieved by the acquittal of the accused, the complainant preferred this appeal.

7. Heard learned counsel for the appellant/complainant and learned counsel for the 1 st respondent/accused.

8. Learned counsel for the 1 st respondent/accused would submit that, there is nothing to interfere with the acquittal of the accused, as the trial court found that the complainant failed to prove positively, that the accused had an intention to cheat him at the time of issuing Ext.P1 cheque. He would rely on the deposition of PW1 to say that, the accused had no such intention. During his cross examination, to a suggestive question put by learned counsel for the accused, that the accused had no intention to cheat the complainant, when the cheque was issued, his answer was that, ‘he may not have such an intention’. So according to him, the complainant failed to prove that, the accused had an intention to cheat him when he issued Ext.P1 cheque.

9. Learned counsel for the appellant would submit that a single sentence from his cross examination, that too, given as an answer to a suggestive questions, cannot be separated, without analysing the evidence as a whole, and that sentence cannot be taken as the sole ground for acquitting the accused. It is a case where the entire evidence was staring at the accused, as he issued Ext.P1 cheque from his bank account, which was closed much earlier.

10. PW3 - Bank Manager stated before the court, that the account of the accused was closed on his request, though no records were produced to substantiate that fact. No steps were taken by the accused to show that the account was closed not on his request, and the bank suo motu closed his account. If at all his account was closed by the bank suo motu due to non-operation for a long time, then also the accused was not disputing Ext.P3 notice received by him on 19/11/2001, as evidenced by Ext.P4 acknowledgement card. Learned counsel for the appellant would submit that, the intention of the accused could be gathered from the attending