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SREEKUMAR versus SURESH

High Court of Kerala

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SREEKUMAR v. SURESH - Crl Rev Pet No. 3823 of 2006(C) [2006] RD-KL 2253 (30 November 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3823 of 2006(C)

1. SREEKUMAR, S/O. BHASKARAN PILLAI,
... Petitioner

Vs

1. SURESH,
... Respondent

2. STATE OF KERALA,

For Petitioner :SRI.K.ABDUL JAWAD

For Respondent :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.T.SANKARAN

Dated :30/11/2006

O R D E R

K.T. SANKARAN, J.

................................................................................... CRL. R.P. 3823 OF 2006 ...................................................................................

Dated this the 30th November , 2006

O R D E R

The petitioner challenges the order dated 02.08.2006 in C.M.P.No. 7251 of 2004 on the file of the court of the Judicial Magistrate of the First Class, Karunagappally by which the complaint filed by the petitioner was dismissed under section 203 of the Code of Criminal Procedure . Since the complaint was dismissed under section 203 of the Code of Criminal Procedure, I do not think it is necessary to issue notice to the first respondent .

2. Heard Public Prosecutor for the second respondent. The case of the complainant in the complaint is that on 28th October, 2003, the accused sought financial assistance from the complainant for a sum of Rs. Two lakhs. The complainant agreed to arrange necessary funds. On 01.11.2003, the accused met the complainant and the complainant had paid Rs. Two lakhs to the accused It is further stated in the complaint thus:

"For discharging the said liability the accused drawn and delivered the cheque bearing No.266762 dated 10.12.2003 on the Vysya Bank, Edappallycotta Branch for rupees two lakhs only (Rs.2,00,000/-) CRL.R.P. 3823 OF 2006 2 writing all aspects of the cheque with his signature in favour of the complainant ." On presentation of the cheque, it was dishonoured on 09.06.2004 on the ground that "drawer's signature differs from the specimen on record" and also on the ground that there was no sufficient funds in the account of the drawer of the cheque. It is further averred in the complaint that on 22.06.2004, a registered notice was issued to the accused informing him about the dishonour of the cheque and calling upon him to pay the amount. Notice was accepted by the accused on 12.07.2004, but he did not repay the amount . In paragraph '5' of the complaint, it is averred thus: "Now the complainant realises that the accused

wilfully drawn and delivered the cheque in favour of of the complainant and put his signature etc. in a different manner or obtained the cheque of somebody and delivered the same to the complainant by putting signature etc. with the intention to obtain wrongful gain to him and to cause wrongful loss to the complainant and to defraud the complainant. The act of the accused amounts to cheating punishable under section 420 of the Indian Penal Code. "

3. The court below proceeded on the basis that since the cheque was a post dated cheque, no offence under section 420 of the Indian Penal CRL.R.P. 3823 OF 2006 3 Code is made out . It was held by the court below that there is no case for the complainant that the accused deceived and induced him to pay Rs. Two lakhs on the representation that he would issue a cheque. The court below proceeded on the basis that the cheque was issued at a later point of time after the date of receipt of cash. On a reading of the complaint as a whole, it cannot be said that the cheque was issued at a later point of time. Yet another reason stated by the court below is that the complainant was a money lender. It is also held that the fact that the cheque was dishonoured on the ground of difference in signature, is a ground to infer that the cheque was not executed properly. The court below held that at any rate, payment of cash to the accused was not due to inducement made by the accused that he would issue the disputed cheque.

4. On a reading of the complaint and sworn statement, I am of the view that the court below has not considered the various averments in the complaint. There is no case for the complainant that the cheque was issued on a later date after the receipt of money. The very basis for arriving at the conclusion, as now arrived at by the court below, is not CRL.R.P. 3823 OF 2006 4 correct. Therefore, the order passed by the court below is set aside. The court below shall consider the matter afresh and proceed in accordance with law. K.T. SANKARAN,

JUDGE.

lk


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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