Judgement

VENKATARAMA AYYAR, J. : This is an appeal by special leave against the judgment of the High Court of Allahabad confirming the conviction of the appellant by the two courts below on a charge under Section 420, Indian Penal Code. In response to a notice dated 4th November, 1949, the District Development Officer Etawah, inviting tenders for the supply of bricks in connections with a Flood Relief Housing Scheme the appellant made a tender which was accepted and he was required to deposit in accordance with the rules, a sum of Rs. 4000 by way of security. Accordingly, on the 17th November, 1949 he delivered a cheque dated 16th November for Rs. 4000 drawn on the Punjab National Bank Ltd., Kanpur while in fact there was only a sum of Rs. 5 to his credit on that date.

It must be noted that according to clause 11 of Ex. P-2 which prescribes the procedures to be adopted in the matter of acceptance of tenders, the deposit should be in cash or postal securities. The cheque presented by the appellant, therefore, could not have been accepted by the authorities acting under that rule. On the 21st of November, 1949, the Development Officer returned the cheque asking the appellant to deposit cash as required by the rule. At that time the appellant was not in station and his brother, one Sobhraj, went, on the 22nd November, to the Development Officer and stated as follows :

"Laxmi Narain has gone out. On his return the money will be deposited. If the District Development Officer so desired, he could have the cheque cashed."

2. On this representation the cheque was sent for encashment and was dishonoured. The charge against the appellant is that in giving the cheque on 17-11-1949, and in re-presenting it on the 22nd of November 1949 when there was admittedly only a sum of Rs. 5 to his credit in the Bank, he had cheated the authorities and had committed an offence punishable under section 420, Indian Penal Code.

3. The Additional District Magistrate, Kanpur who tried the case, held that the offence had been made out and convicted the appellant and sentenced him to one year s rigorous imprisonment and a fine of Rs. 1,000. The appellant took the matter in appeal to the Court of the Sessions Judge Kanpur, who affirmed the conviction and the sentence passed by the Additional District Magistrate.

There was a revision preferred to the High Court against the order of the Sessions Judge,; and that was heard by Sankar Saran J. who observed that, on the facts, "the appellant was not a cheat as cheating is generally understood in common parlance" and that "he was a victim of circumstances", but held that technically the offence had been established and he accordingly confirmed the conviction. He however reduced the term of imprisonment to the period already undergone, but confirmed the fine. It is against this order that the present appeal has been filed by special leave.

4. On the materials placed before us we are of opinion that the conviction under section 420 cannot be sustained. We start with the fact that on the 17th November, the appellant presented a cheque when he had only Rs. 5 to his credit in the bank account. Now under the rules, the railway receipts for coal could be handed over to the appellant only after the deposit had been made and as under clause 11, the cheque could not be accepted as security by the department, the railway receipts could not in the normal course be delivered on the strength of the cheque and therefore there could be no question of the cheque having been delivered with any dishonest intention.

This is not seriously disputed by the respondent. The fact appears to be that the appellant had not the requisite amount for making a deposit and was making arrangements to raise the same. He wanted time and gave the cheque with that object. As a businessman, he must have known that the officers had no authority to accept the cheque as security, and having regard to the usual course of business he would have expected the cheque