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Judgment
Honourable Mr. Justice. P.S. Gopinathan
The revision petitioner is the 2nd accused in CC. No. 922/1995 on the file of the Judicial Magistrate of the First Class, Vadakara. The first respondent, who is none other than the bother-in-law of the revision petitioner, filed the above complaint before the trial court against a partnership firm and its partners of which the revision petitioner is the managing partner accusing offences u/s 138 of the Negotiable Instruments Act (NI Act) and Section 420 of the Indian Penal Code (IPC). The allegation against the accused in the complaint is that on 1/1/1995, accused 2 to 4 who are the managing partner and partners borrowed a sum of Rs. 2,00,000/- for the expansion of the business of the firm, the first accused and when demanded back the amount, Exhibit P1 cheque dated 26/6/1995 for the said amount was issued and when presented for collection, Exhibit P1 was returned dishonoured for the reason that the account was closed. Despite the acknowledgment of the notice demanding discharge of the cheque amount, the liability was not discharged. In response to the process, accused 1, 2 and 4 entered appearance. The 3rd accused was reported dead. The other accused pleaded not guilty when charge was framed, read over and explained. Therefore, they were sent for trial. On the side of the prosecution, the first respondent and the manager of the bank were examined as PWs1 and 2. Exhibits P1 to P14 were marked. When questioned u/s 313 of the Code of Criminal Procedure, all of them took a plea of total innocence. The 4th accused took a plea that he was not a partner of the firm. In support of that defence, he was examined as DW1. Exhibit D1, an agreement was also marked. The learned Magistrate, on appraisal of the evidence arrived at a finding that the first respondent had succeeded to establish the offences alleged against the revision petitioner and no offence was disclosed against the first and the 4th accused. Consequently, accused 1 and 4 were acquitted. The revision petitioner was convicted and sentenced to simple imprisonment for six months u/s 138 of the NI Act and simple imprisonment for one year u/s 420 IPC.
Aggrieved by the above conviction and sentence, the revision petitioner preferred Crl.A.19/1999 before the Sessions Judge, Kozhikode. The Additional Sessions Judge (Adhoc-II), Kozhikode, by the impugned judgment dated 26/04/2002, arrived at a finding that since the cheque was issued on a closed account, no offence u/s 138 of the NI Act was established. Whereas it was further found that offence u/s 420 IPC was established. Accordingly the appeal was disposed of confirming the conviction and sentence u/s 420 IPC and acquitting for offence u/s 138 of the NI Act. Assailing the legality, correctness and property of the above conviction and sentence as confirmed in appeal for offence u/s 420 IPC, this revision petition is preferred.
None represented the first respondent. I have heard the learned counsel for the revision petitioner and perused judgments of the courts below. Evidently the borrowal was on 1/1/1995. Exhibit P1 cheque was issued thereafter. The date of issuance of the cheque, is not revealed out by the pleadings and the evidence. But Exhibit P1 is dated 26/6/1995. With these pleadings, there is nothing on record to show that even if the account was closed at the time when Exhibit P1 cheque was issued, there was any inducement on the side of the revision petitioner either to part with any money or property or for doing any particular act which the first would not have done but for the inducement or omitting to do any act which the revision petitioner should have otherwise done. Therefore, there is no cheating while issuing Exhibit P1 and no offence u/s 420 IPC is established. The conviction under challenge is not sustainable. The revision petitioner is entitled to succeed.
In the result, this revision petition is allowed. While setting aside the conviction and sentence under challenge, the revision petitioner would stand acquitted and set at liberty. The bail bond executed by him shall stand cancelled.