A. Packiaraj, J.
1. The petitioner has been convicted u/s 417 IPC and sentenced to undergo three months simple imprisonment and to pay a compensation of Rs. 1,50,000/- by the Judicial Magistrate No. V, Coimbatore in C.C. No. 241 of 1999, against which, he preferred an appeal in C.A. No. 88 of 2001 before the II Additional Sessions Judge, Coimbatore, who confirmed the conviction and dismissed the appeal.
2. A complaint had been filed by the respondent against the accused for an offence u/s 138 Negotiable Instruments Act and the Magistrate also took cognizance of the same for an offence u/s 138 Negotiable Instruments Act and had read over the substance of the complaint to the accused whether he has committed an offence u/s 138 Negotiable Instruments Act for which he had denied. But surprisingly, the Magistrate has convicted him u/s 417 IPC.
3. The averments in the complaint and the evidence of the complainant is to the effect that he being the proprietor of Artee Foams, the petitioner (accused) was doing a hotel business and as such, he borrowed a sum of Rs. 1,50,000/- on various dates. The petitioner agreed to pay the amount back with interest at the rate of 30% per annum and executed a promissory note. Despite several demands, the accused did not pay either the principal or the interest. Then on 12.05.1999, he is alleged to have given a cheque for Rs. 2,04,000/- drawn on Nedungadi Bank for the discharge of the amount. The complainant presented a cheque on 14.05.1999 through South Indian Bank, Gandhi Puram Branch and the same was returned on the ground of account closed. A lawyer's notice as contemplated under the Act was issued on 22.05.1998 to the accused calling upon him to pay the cheque amount. The accused had received the notice on 28.05.1999 but sent a reply on 04.06.1999 denying the averments and he also did not pay the cash. Hence the prosecution was launched.
4. To support the case of PW-1, PW-2 and PW-3 Managers of Nedungadi Bank and South Indian Bank were examined to speak about the dishonour of the cheque. The evidence of PW-2, Manager of Nedungadi Bank is to the effect that the account was closed suo motu by the management as early as 11.03.1998.
5. The case of the accused is that he does not know the complainant at all. He had not borrowed any amount from him. One Sivanandam, who was formerly employed under the accused was terminated by him and that he assisted the accused in his business he used to attend payment of income tax and sales tax on behalf of the accused. And when he left his services, he took about 25 signed cheques and 10 signed promissory notes with him. He has also taken with him Rs.10 stamp papers with the signature of the accused. One of the cheque allegedly taken by Sivanandam had been used in this case. Therefore, he had also sent a notice to Sivanandam and he had received a reply from him, marked as Ex.D-3, wherein the said Sivanandam had admitted to have taken the cheques and promised to return the cheques, with the salary of the accused.
6. Then again the accused also took a plea of alibi stating that on 23.04.1998 he was admitted in K.G. Hospital on the complaint of chest pain and he was there till 1.5.1998. DW-1 Doctor attached to the said hospital had been examined to establish the same. The discharge summary has been marked as Ex.D-1. On 30.04.1998, he was subjected to echo-cardiograph test and the report is Ex.D-2. Therefore, according to the accused, he could not have been in a position to borrow the amount on 30.04.1998.
7. Though factually, the courts did not accept these contentions, but they held that in order to convict a person u/s 138 Negotiable Instruments Act, the cheque must have been returned for want of sufficient funds in the bank. But here in the present case, the cheque had been returned for the reason that the account had already been closed not at the instance of the accused but suo motu by the officials.
8. However, ultimately the courts have come to the conclusion that the offence u/s 138 has not been made out since PW-2 bank official would state that the account of the petitioner was closed on 11.03.1998.
9. It is pertinent to note that the complainant has not come by way of appeal against this finding. Therefore, it may not be necessary for me to go into that aspect whether an offence u/s 138 is made out or not. But the fact remains that the courts below have convicted the accused u/s 417 IPC though substance of the charge read over to the accused is only for offence u/s 138 Negotiable Instruments Act. Therefore, the learned counsel for the petitioner would argue that without the substance of the offence to be convicted not read over to the accused, he cannot be convicted under another section. Consequently, no offence u/s 417 IPC is made out.
10. In other words, the accused has been called upon to answer the charge relating to the commission of offence u/s 138 Negotiable Instruments Act for which he had pleaded not guilty and proceeded with the trial and tried to establish no offence u/s 138 NIA is made out. In fact, even on the finding of the learned Magistrate, no offence u/s 138 N.I.A has been made out. But surprisingly, the magistrate has convicted him u/s 417 IPC. The ingredients of section 138 N.I.A and section 417 IPC are totally different. No doubt, the Magistrate has power to alter the charge at any stage. But sufficient opportunities should have been given to the accused to answer the particular charge. It may be said that this being a summons case, there is no framing of charge. However the provisions under the Cr.P.C specify that the substance of the charge should be read over to the accused. In the present case when the Magistrate has thought it fit that he should convict him u/s 417 IPC, he ought to have given sufficient notice to the accused to answer the said substance. But he has not done so. Conviction has necessarily to be set aside on that account.
11. Yet another ground raised by the learned counsel is that even taking it for granted that the entire allegations is accepted, an offence u/s 417 IPC is not made out. Punishment for cheating and the offence of cheating has been defined u/s 415 IPC, which reads as follows:-
"Section 415 IPC:- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."
12. After referring to the section, the learned counsel submits that the essential ingredients of cheating is that while deceiving a person, the accused should have fraudulently or dishonestly induced the person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induce a person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived.
13. So the essential ingredients are :-
i) to deliver a property;
ii) to consent that any person shall retain any property; and
iii) by inducing a person so deceived should do or omit to do anything which he would not do or commit if he were not so deceived.
14. One of the three ingredients has to necessarily be satisfied to convict a person under this section. As far as the first ingredient is concerned, when the cheque was issued, no property was delivered. As a matter of fact, the money was, even according to the prosecution, paid long ago and therefore, at the time of presentation of cheque, there was no inducement for him to part with any property.
15. As far as the second ingredient is concerned, that person shall retain any property because of this inducement. This ingredient is also conspicuously absent since it is no body's case that at the time of issuance of the cheque, the complainant had retained any property or consented to retain any property.
16. The third ingredient is that the complainant must have induced to do or omitted to do anything which he would not have done if he were not so deceived. So by giving a cheque on that particular date, there is absolutely no iota of evidence from the prosecution side that he omitted to do, what he is supposed to do, because of the inducement made by the accused by giving the cheque. In other words, there is nothing to show that if the accused has not given any cheque on that particular date, what the complainant would do or omit to do is not at all evidenced.
17. I fully agree with the contention of the learned counsel for the petitioner and I see that at the time of issuance of the cheque, none of the first two ingredients are there and in respect of the third ingredient, if there had been some evidence from PW-1 that he did not do a particular thing because of the cheque having been given, it would have been a different matter. I hold that the offence u/s 415 IPC has not been made out and consequently, he cannot be convicted u/s 417 IPC either.
18. In the result, the revision is allowed and the accused is acquitted. Fine amount if paid, shall be returned to the accused.
