Concealment of a closed bank account when issuing a cheque does not constitute cheating under IPC if there is no fraudulent inducement or harm caused.

O R D E R

The revision petitioner was prosecuted by the first respondent before the Judicial Magistrate of the First Class-II, Palakkad in C.C.No.55/1999 alleging offence under Section 420 of the Indian Penal Code (IPC). By judgment dated 17/9/2001 the learned Magistrate arrived at a finding that offence under Section 415 IPC was established, convicted under Section 417 IPC and sentenced to simple imprisonment for one year and a fine of Rs.5,000/- with a default sentence of simple imprisonment for a period of three months.

2. Aggrieved by the above conviction and sentence, he preferred Crl.A.393/2001 before the Sessions Judge, Palakkad. The Additional Sessions Judge, Palakkad to whom the appeal was made over, by judgment dated 31/1/2004, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence this revision petitioner is preferred.

3. The allegations against the revision petitioner are that on 25/10/1998 he borrowed a sum of Rs.20,000/- from the first respondent agreeing to pay back on 13/11/1998. When demanded back the amount, the revision petitioner issued Exhibit P1 cheque dated 5/12/1998. Hoping that the 1st respondent could recover the debt, Exhibit P1 cheque was presented for collection. But it was returned dishonoured on 18/12/1998 with a statement that the account was closed long back.

Though notice demanding discharge was caused, no payment was made.

4. The facts stated earlier would show that Exhibit P1 post dated cheque was issued in discharge of an existing liability. There is no mention that when Exhibit P1 cheque was issued, any money or property was parted in pursuance to any inducement. True that there is concealment of the fact that the account was closed when the cheque was delivered. Even if it is assumed that the closing of the account was fraudulently or dishonestly concealed from the first respondent, it would not amount to cheating punishable under Section 417 IPC. Cheating is defined under Section

415 IPC which reads as follows:

“415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation.-- A dishonest concealment of facts is a deception within the meaning of this section.

illustrations (a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A Cheats.

(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.

(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.

(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats. (e) A, by pleading as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.

(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.

(g) A intentionally deceives Z into a belief that A means to deliv