M/S Maruthi College Of ... vs The State Of Ap Rep By Its Pp Hyd., ...
2022 Latest Caselaw 6801 Tel

Citation : 2022 Latest Caselaw 6801 Tel
Judgement Date : 14 December, 2022

Telangana High Court

M/S Maruthi College Of ... vs The State Of Ap Rep By Its Pp Hyd., ... on 14 December, 2022

Bench: K.Surender

               HON'BLE SRI JUSTICE K.SURENDER

         CRIMINAL REVISION CASE No.1174 OF 2011
JUDGMENT:

1. The petitioners have filed the present revision

questioning the correctness of concurrent findings of the

learned VII Metropolitan Magistrate, Hyderabad convicting the

petitioners under Section 420 of IPC vide judgment dated

03.10.2008 in CC No.278 of 2005 and thereafter conviction

being confirmed by the learned Metropolitan Sessions Judge

vide Criminal Appeal No.328 of 2008, dated 23.05.2011.

2. Briefly, the case of complainant is that he was building

contractor. The 2nd Petitioner approached him in the year

2001 for constructing building meant for medical college in

Warangal and another medical college at Shameerpet village.

The complainant invested in the construction work and also

made constructions. The 2nd petitioner/A2 issued six post

dated cheques and when the cheques were presented in the

bank for encashment, they were dishonoured. The

complainant issued legal notice on 25.11.2002. However, the

2nd petitioner approached the complainant and requested that

he would pay the cheque amount by 28.02.2003 and also

executed an undertaking on 21.12.2002. The said cheques

were again presented for clearance on 04.03.2003 and they

were returned for the reason of 'insufficient funds'. Though

notice was issued on 13.03.2003, payment was not made. For

the said reason of dishonor of cheques, criminal complaint

was filed for the offence under Section 420 of IPC.

3. The police having investigated the case, filed charge sheet

for the said offence. Having framed the charge under Section

420 of IPC, learned Magistrate examined P.Ws.1 and 2 and

marked Exs.P1 to P15 and found that the cheques Exs.P4 to

P9 were issued by the 2nd petitioner. Thereafter m2nd

petitioner requested the complainant not to proceed further

and he would make good the payment covered by the cheques,

for which reason, the complainant failed to file the case under

Section 138 of the Negotiable Instruments Act. However, the

said complaint was filed with a delay. When the petitioners

herein questioned the complaint filed under Section 138 of

Negotible Instruments Act before this Court vide Criminal

Petition No.5639 of 2005, this Court held that there is a prima

facie case under Section 420 of IPC.

4. The main ground on which both the Courts below have convicted the accused is on the basis of the observations made by this Court in Criminal Petition No.5639 of 2005, which reads as follows:

"After going through the contents and ingredients of section 420 IPC knowing fully well that the prosecution cannot be maintained thirty days after waiting period from the date of issuing of notice, the accused approached him dishonestly making a request to wait till 4.3.2003 promising that he would repay the amount. In view of the above circumstances, I find that there is a prima facie case for the offence u/sec.420 IPC. Therefore, the prosecution in respect of section 420 IPC is not liable to be quashed."

5. To attract an offence under Section 420 of IPC, it has to

be shown that the accused entertained the fraudulent

intention from the inception. Admittedly, there were money

transactions in between the accused and the complainant

regarding construction. Having paid in part and construction

being undertaken in part, the cheques in question were issued

which are Exs.P4 to P9.

6. However, the promise to make payment towards cheques

will not amount to fraudulent misrepresentation. It is for the

complainant to prosecute and file cases diligently. For the

reason of the accused promising to repay the amounts covered

by the cheques, if the complainant fails to prosecute his case