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2024 (5) TMI 925 - HC - Indian LawsDishonour of Cheque - cheating - in-spite of repeated requests the petitioner did not execute the registered deed of sale in favour of the complainant - offence under Section 138 of the N.I. Act and also under Section 420 IPC - HELD THAT - From the perusal of the materials and questions put to the petitioner under section 313 of Cr. P.C, this court finds that no question was put to the petitioner with regard to any element of cheating or regarding his intention to cheat the complainant much less intention to cheat right from the inception of transactions between the parties of sale purchase of land. Rather there was no question that at the time of dealing with the landed properly and taking advance money of Rs. 4,85,000/- for purchase of land, the petitioner had any intention to cheat - this court finds that no question whatsoever was put to the petitioner under section 313 with regard to basic ingredient of offence under section 420 IPC i.e. intention to cheat much less any intention to cheat at the very inception of the transaction regarding sale purchase of land or even at the stage of issuance of cheque. In the present case, this court finds that there is no allegation of dishonest intention of the petitioner right at the inception of money transaction regarding sale and purchase of land and thus the basic allegation /ingredients of dishonest intention to cheat right at the time of the money transaction between the parties in connection with sale and purchase of land is totally absent. In such circumstances, the act of refusal to execute the registered deed was mere violation of oral agreement of sale purchase of land. Under such circumstances, this court is of the considered view that the act of issuance of cheque of a closed account by itself does not satisfy the basic ingredient of section 420 I.P.C. that is, dishonest intention of the petitioner right at the inception of money transaction - This court is of the considered view that conviction of the petitioner for offence under section 420 IPC cannot be sustained even on the alleged ground of issuance of cheque to refund the amount from a closed account. This court is of the considered view that the learned courts have not considered the aforesaid aspects of the matter while convicting the petitioner for offence under section 420 of I.P.C. and have recorded perverse findings to convict the petitioner under section 420 IPC which has caused serious miscarriage of justice and calls for interference under revisional jurisdiction. The records reveal that the cheque was dated 09.07.2014, presented on 17.07.2014 dishonored on 18.09.2014, legal notice was sent on 27.09.2014 and the complaint case was filed on 17.10.2014. There is no evidence regarding service of legal notice. Even if deemed service of legal notice is considered then also the notice can be said to have been served only upon expiry of 30 days and thereafter 15 days is also available to pay the cheque amount and then only the cause of action to file the complaint case could arise. Accordingly, the complaint, so far as it relates to offence under section 138 of N.I. Act is concerned, is premature. Since the complaint to the extent it relates to offence under section 138 of N.I. Act has been held to be pre-mature, the complainant may still file a fresh complaint and satisfy the court regarding sufficient cause for delay. The complainant may file the fresh case under section 138 of N.I. Act within a period of 2 months from today - the conviction and sentence under section 420 IPC is set aside the conviction and sentence under section 138 of N.I. Act is also set-aside with the aforesaid liberty to file a fresh complaint under section 138 of N.I. Act. The present petition is disposed off.
Issues Involved:
1. Conviction under Section 420 IPC. 2. Conviction under Section 138 of the N.I. Act. Summary: Issue 1: Conviction under Section 420 IPC 4. The learned counsel for the petitioner argued that the basic ingredient of offence u/s 420 IPC is missing. There was an oral agreement for sale and purchase of land, and when the sale deed was not registered, the complainant approached the petitioner to get back the money, leading to the issuance of a cheque which bounced due to account closure. The petitioner contended that the intention to cheat must exist at the time of taking the money, not merely at the time of issuing the cheque. 8. The learned counsel for the opposite party no. 2 argued that the petitioner had cheated the complainant by issuing a cheque from a closed account, knowing it could not be encashed, thus fulfilling the ingredients of Section 420 IPC. 15. The trial court found that the petitioner had taken Rs. 4,85,000/- dishonestly for selling the land but neither returned the money nor sold the land, issuing a cheque from a closed account with dishonest intention. However, the appellate court upheld the conviction without discussing the ingredients of the offence under Section 420 IPC or considering the petitioner's replies during his examination u/s 313 Cr. P.C. 22. The court found that no questions were put to the petitioner regarding any element of cheating or intention to cheat during his examination u/s 313 Cr. P.C. 24. The court noted that the complaint lacked any averment of dishonest intention at the inception of the transaction. The act of issuing a cheque from a closed account does not satisfy the basic ingredient of Section 420 IPC, which requires a dishonest intention at the inception of the transaction. 27. The court concluded that the findings to convict the petitioner u/s 420 IPC were perverse and caused serious miscarriage of justice, warranting interference under revisional jurisdiction. 30. The court distinguished the present case from the Kerala High Court judgment relied upon by the complainant, noting that the accused in that case was ultimately convicted under Section 417 IPC, not Section 420 IPC. 31. As a cumulative effect, the conviction of the petitioner for offence u/s 420 IPC was set aside. Issue 2: Conviction under Section 138 of the N.I. Act6. The petitioner argued that the complaint was premature as the legal notice was issued on 27.09.2014, and the complaint was filed on 17.10.2014 without evidence of service of legal notice. 9. The opposite party no. 2 contended that even if the timeline was not as per law, the right to file the complaint should remain intact. 33. The court found that the complaint was premature as the cause of action for filing the complaint u/s 138 of the N.I. Act had not crystallized on the date of filing. 34. The court referred to the Supreme Court judgment in Yogendra Pratap Singh vs. Savitri Pandey, which held that the cause of action for filing a complaint u/s 138 of the N.I. Act arises only after the expiry of 15 days from the date of service of legal notice. 36. The court concluded that the complaint was premature and hence not maintainable, setting aside the conviction and sentence u/s 138 of the N.I. Act. 38. The court granted the complainant liberty to file a fresh complaint u/s 138 of the N.I. Act within two months. 39. The conviction and sentence under Section 420 IPC and Section 138 of the N.I. Act were set aside, with liberty to the complainant to file a fresh complaint under Section 138 of the N.I. Act. 40. The revision was disposed of in the aforesaid terms, and the judgments of the trial and appellate courts were set aside with the liberty to the complainant.
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