This is a criminal appeal filed by the complainant Nagarajan under S. 378, Cr.P.C. against the judgment dt. 24-5-82, in C.C. 86 of 1982 on the file of the Court of the learned Judicial Second Class Magistrate, Vellore, finding that the complainant had not proved his case against the accused under S. 417, I.P.C. and acquitting the accused under S. 255(1), Cr.P.C.


2. The case of the complainant against the accused is that the accused had dealings with the complainant; that a sum of Rs. 3, 000/- became due to the complainant in the month of October 1981; and that the accused had been evading payment of amount in spite of repeated demands. The accused had issued a cheque in favour of the complainant on 1-11-81, drawn on Bank of Thanjavur and another cheque dt. 24-12-81 drawn on South Indian Bank. Both these cheques were returned stating that the accused had no funds in these banks. Thus the accused had an intention to deceive the complainant and issued the cheque. So, the complainant had filed the complaint under S. 417, I.P.C. before the lower Court.


3. When the accused was questioned by the lower Court, he had stated that he had no intention to deceive the complainant and thereupon issued the cheques and denied the offence.


4. On behalf of the prosecution, the complainant had examined himself as P.W. 1 and another witness P.W. 2 John. Ex. P-1 cheque for Rs. 3000/-, Ex. P-2 Cheque for Rs. 1000/- issued by the accused, Ex. P-3 the notice issued to accused by complainant, Ex. P-4 the reply given by accused, Ex. P-5 intimation by the bank for returning cheque for Rs. 3000/- and Ex. P-6 intimation by the bank for returning cheque for Rs. 1, 000/- were filed. No witness was examined on behalf of the accused and no document was filed on behalf of the accused. On consideration of the above evidence available on record, the lower Court came to the conclusion that the complainant had not proved his case against the accused beyond all reasonable doubt and acquitted him.


5. The point for consideration is whether the complainant has proved his case against the accused-respondent herein beyond all reasonable doubt.


6. P.W. 1 Nagarajan has stated in his evidence that he owns a jewellery shop in the main Bazaar at vellore. He is acquainted with the accused. The accused is owning a vessel shop at Vandavasi. There are business dealings in money between both of them. When the complainant had sent one Jayapal to the accused for demanding Rs. 3, 000/- due and payable by the accused to him, the accused issued a cheque for Rs. 3, 000/- in favour of the complainant through the said Jayapal. The said cheque, when presented, was returned by the bank saying that there had been no funds available in the account of the accused. Later, on 24-1-81 the accused came to the shop of the complainant and gave a cheque for Rs. 1, 000/- the said cheque was also returned by the bank saying that there was no funds available in the account of the accused. Thereafter, the complainant issued Ex. P-3 notice through a lawyer to the accused. Accused had sent a reply. Thereafter, the complainant had filed the complaint before the lawer Court. Ex. P1 is the cheque issued by the accused for Rs. 3, 000/- Ex. P-2 is the cheque issued by the accused for Rs. 1, 000/-. Ex. P-3 is the notice issued by the complainant to the accused. Ex. P-4 is the reply given by accused to complainant. P.W. 2 John has stated in his evidence that he is an employee in the South Indian Bank, Maruthadu Branch : that Ex. P-2 cheque was presented in their bank and as there was no fund available in the account of the accused, the said cheque had been returned. Ex. P-5 is the intimation of the bank regarding the return of the cheque for Rs. 3, 000/-. Ex. P-6 is the intimation of the bank regarding return of cheque for Rs. 1, 000/-.


7. When questioned under S. 313, Cr.P.C., the accused had stated he is not indebted to the complainant to the tune of Rs. 3, 000/- and he had issued the cheque for Rs. 1, 000/- only because P.W. 1 demanded a cheque for the said amount. The accused has also stated that as undertaken by P.W. 1 to inform him about the presenting of the cheque, the complainant had not informed him about the same, and therefore, before the accused was taking steps to provide sufficient funds in the bank for honouring the cheque issued by him, the cheque presented by the complainant had been returned by the bank. No witness was examined on behalf of the accused.


8. Section 415 of the Indian Penal Code reads as follows :-


"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"


Explanation - A dishonest concealment of fact is a deception within the meaning of this section"


S. 417 of the Indian Penal Code reads as follows :-


" whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year or with fine or with both" *


9. It is contended on behalf of the complainant-appellant herein that the accused respondent herein had issued the cheque on 24-12-81 with the sole intention of deceiving the complainant when the accused had no funds in the bank and thereby deprived the complainant from instituting a suit against the accused for recovering the amount due and payable by the accused to him. On the other hand, the case of the accused-respondent herein is that it is only during the course of the business transaction with the complainant he had incurred a debt to the tune of Rs. 3, 000/- and that there was no intention of deceiving the complainant when he issued the cheque for Rs. 3, 000/- and that he had asked the complainant to inform him in advance before presenting the cheque to bank for encashment and that the complainant had not done so, and that had resulted in the return of the cheque by the bank. In other words, the case of the accused-respondent herein is that there had been no intention at all on his part to deceive the complainant. It is further the case of the accused-respondent herein that because of the return of the cheque by the bank, the position of the complainant is not in any way affected or altered, and that the complainant can always institute a suit for his claim against the accused. It is also relevant to note that the accused had stated he had not issued any receipt for the alleged handing over of jewels by the complainant to him. There is no document to prove that the accused is indebted to him to the tune of Rs. 3, 000/- and that the said amount is due and payable by the accused to the complainant. The complainant himself admits regarding this aspect and states that there is no document in his possession to prove that the accused is liable to pay Rs. 3, 000/- to him. Thus it is seen that the

complainant had instituted the criminal complaint before the lower Court. It is also relevant to note that the complainant had not alleged any loss on account of the dishonouring of the cheque. Giving of a cheque in lieu of money due with the knowledge that the drawer had no funds with the bank, does not amount to an offence of cheating in the absence of any evidence to show that the person to whom the cheque was issued parted with any property, or that he did anything which he would not have done, had he known that the cheque would be dishonoured. 10. Thus we find that the complainant had not proved his case against the accused beyond all reasonable doubt. Hence the acquittal of the accused under S. 255(1), Cr.P.C. is correct. There is no merit in the appeal and the same is dismissed.