2021 (7) TMI 232 - HC - Indian Laws

Dishonor of Cheque - Cheating - offence of cheating by dishonestly inducing PW-1 to deliver a cash sum for providing a government job to his brother - cross examination of the prosecution witnesses - HELD THAT - It has not been denied by the petitioners that petitioner Aswini Debbarma developed a relationship with PW-1 while he was posted as teacher in a government school at Sabroom. It is not also denied by him that he used to meet PW-1 in his bakery frequently. By cross examination of the prosecution witnesses, the petitioners tried to establish that the cheques which were issued by accused Subhash Debbarma to PW-1 were not presented at the New Secretariat branch of SBI where the accused maintained his account and as a result the cheques were dishonoured. He also wanted to establish that accused Subhash Debbarma received the said sum of money from PW-1 as official expenses for arranging a job for his brother Babul Saha. He never denied the execution of the agreements Exbt.1 2 and his signatures thereon. Petitioners did not also deny that Subhash Debbarma (one of the petitioners) received the said sum of money from PW-1 assuring him that he would arrange a government job for his brother. The learned trial court has rightly held that the facts of the case do not attract the provisions of Section 138 NI Act because in bringing the charge under NI Act the procedures prescribed thereunder have to be followed. In order to constitute an offence under Section 420 IPC, it has to be essentially proved that the accused has committed cheating within the meaning of Section 415 IPC and by such cheating has dishonestly induced the persons so cheated to deliver any property to the accused or to any person, or to make alter or destroy the whole or any part of the valuable security or anything which is signed or sealed, and which is capable of being converted into a valuable security - Clearly in this case the allegations which have been brought against the petitioners are that with a fraudulent intention they allured PW-1 with a government job for his brother and dishonestly induced him to pay ₹ 1,10,000/- to them and thereby committed the offence of cheating punishable under section 420 IPC. In the case of HRIDAYA RANGAN PD. VERMA AND ORS. VERSUS STATE OF BIHAR AND ANR. 2000 (3) TMI 1105 - SUPREME COURT OF INDIA the Supreme Court has succinctly held that to establish the charge of cheating against the accused, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. Thus, the accused petitioners committed the offence of cheating by dishonestly inducing PW-1 to deliver a cash sum of ₹ 1,10,000/- for providing a government job to his brother. The receipt of the money is not denied by the petitioners. Rather they tried to establish that they had taken the money from PW-1 for processing his application for a government job and they also tried to refund the money when they failed to keep their promise by issuing cheque in favour of the complainant PW-1 which was eventually dishonoured for the fault of the complainant - this court is of the view that there is no infirmity with regard to the conviction and sentence of the petitioners. Their conviction and sentence passed by the trial court has been rightly affirmed by the learned appellate court. The criminal revision petition stands dismissed.

Summary

Issues Involved:
1. Whether the basic ingredients of the offence of cheating under Section 415 IPC were established.
2. Whether the petitioners intended to return the money, as evidenced by the issuance of cheques.
3. Whether the trial court should have extended the benefit of the Probation of Offenders Act or Section 360 Cr.P.C. to the petitioners.

Detailed Analysis:

Issue 1: Establishment of Cheating under Section 415 IPC
The petitioners were charged with cheating under Section 420 read with Section 34 IPC. The case involved allegations that the petitioners fraudulently induced the informant to deliver a sum of ?1,10,000/- by promising a government job for the informant's brother. The trial court, after examining the evidence, found that the petitioners had a clear intention to defraud the informant, knowing fully well that they had no authority to secure a government job. The court noted that the petitioners entered into illegal agreements and took money on false assurances. The appellate court upheld these findings, emphasizing that the petitioners' actions constituted cheating as defined under Section 415 IPC, which involves deceiving a person fraudulently or dishonestly inducing them to deliver property.

Issue 2: Intention to Return the Money
The petitioners contended that they intended to return the money, as evidenced by the issuance of two cheques. However, these cheques were dishonored due to insufficient funds and the closure of the petitioner's account. The courts noted that the petitioners' conduct in issuing the cheques did not negate the fraudulent intention at the time of taking the money. The trial court found that the procedures under the Negotiable Instruments Act were not followed, and thus, the case was tried under Section 420 IPC. The appellate court further observed that the petitioners' attempt to return the money did not absolve them of the initial fraudulent intent.

Issue 3: Benefit of Probation of Offenders Act or Section 360 Cr.P.C.
The petitioners argued that the trial court should have extended the benefit of the Probation of Offenders Act or Section 360 Cr.P.C. given the circumstances. However, the trial court declined to provide this benefit, considering the gravity of the offence and the manner in which the informant was cheated. The appellate court upheld this decision, noting that the serious nature of the offence warranted the punishment imposed.

Conclusion:
The High Court dismissed the criminal revision petition, affirming the conviction and sentence of the petitioners. The court directed the petitioners to surrender within two months to serve out the sentence, failing which appropriate steps would be taken to enforce the sentence. The judgment emphasized that the petitioners' actions constituted clear cheating under Section 420 IPC, and their subsequent conduct did not mitigate the initial fraudulent intent. The court also highlighted the informant's culpability in entering into an illegal transaction, although this did not absolve the petitioners of their criminal liability.