THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
CRIMINAL PETITION No.5711 of 2009
10-03-2011
Mr.G.Man Mohan Hari Prakash,S/o.Mr.G. Ramaswamy
The State of A.P. rep. by the Public Prosecutor & another.
Council for petitioner :B.M.Patro
Council for Respondent: Public Prosecutor
:ORDER:
The petitioner is accused of offence punishable under Section 420 I.P.C. in
CC.No.862 of 2009 on the file of X Additional Chief Metropolitan Magistrate,
Secunderabad. It is alleged that the accused entered into agreement with Sripad
Commodity and Derivatives Private Limited, Secunderabad, traded in commodities
and became liable to pay Rs.30,62,880.80 paise and that towards discharge of the
said liability, the accused issued cheque dated 15.06.2006 for the said amount
in favour of the above company and that the said cheque was bounced for want of
sufficient funds in the account of the accused and that the accused issued the
cheque with an intention to cheat the de facto complainant.
2. The main contention on which this petition is filed is to the effect
that another complaint was filed by the complainant against the petitioner
alleging offence under Section 138 of the Negotiable Instruments Act in
CC.No.890 of 2007 and that when it is pending trial, the present case CC.No.862
of 2009 for offence under Section 420 I.P.C. on the same allegations and on the
same cause of action is not maintainable as the petitioner cannot be tried twice
on the same allegations in view of Section 300 Cr.P.C. This is not a case where
the petitioner/accused was convicted for one of the two offences by any
competent criminal Court and thereafter is being tried for another offence on
the basis of the same cause of action. In this case, both the criminal cases
one for the offence under Section 138 of the Negotiable Instruments Act and the
second one for the offence under Section 420 I.P.C. are pending trial.
Ingredients of the above two offences are entirely different. This Court in
V.Kutumba Rao Vs. M.Chandrasekhar Rao1 lucidly discussed this subject in the
following manner:
"In a prosecution under Section 138, Negotiable Instruments Act, the mens rea
viz., fraudulent or dishonest intention at the time of issuance of cheque need
not be proved. However in a prosecution under Section 420, IPC mens rea is an
important ingredient to be established. In the former case the prosecution has
to establish that the cheque was issued by accused to discharge a legally
enforceable debt or other liability. This ingredient need not be proved in a
prosecution for the charge under Section 420, IPC. Therefore, the two offences
covered by Section 420 IPC and 138, Negotiable Instruments Act are quite
distinct and different offences even though sometimes there may be overlapping
and sometimes the accused person may commit both the offences. The two offences
cannot be construed as arising out of same set of facts. Therefore, Section 300
Cr.P.C. is not a bar for separate prosecutions for the offences punishable under
Section 420, IPC and 138 of the Negotiable Instruments Act. The question of
application of the principles of double jeopardy or rule estoppel does not come
into play. The acquittal of the accused for the charge under Section 420, IPC
does not operate as estoppel or res judicata for a finding of fact or law to be
given in prosecution under Section 138 of the Negotiable Instruments Act. The
issue of fact and law to be tried and decided in prosecution under Section 420,
IPC are not the same issue of fact and law to be tried in prosecution under
Section 138 of the Act. I, therefore, do not find any force in the contentions
advanced on behalf of the accused."
3. Further, the police are incompetent to register a case for the offence
under Section 138 of the Negotiable Instruments Act and to investigate into the
same and to file charge sheet for the said offence. Section 142(a) of the
Negotiable Instruments Act creates a bar for the Court to take cognizance of any
offence punishable under Section 138 except on a complaint in writing made by
the payee or the holder in due course of the cheque. Therefore, there is no
possibility of the police investigating into both the offences under Section 420
I.P.C. and Section 138 of the Negotiable Instruments Act together even though
both the offences arise out of the same transaction of issuance of the cheque
which was dishonoured later. Since the offence under Section 420 I.P.C. is a
cognizable offence, report is given by the de facto complainant to the Police
for investigation of the offence under Section 420 I.P.C; and since cognizance
for the offence under Section 138 of the Negotiable Instruments Act can be taken
only upon a private complaint filed by the payee of the cheque, the complainant
filed separate private complaint against the accused. Thus, two criminal cases
are filed against the petitioner/accused, one by the complainant himself and
another by the police; and both are being tried simultaneously. There is no
legal bar for maintaining two criminal cases against the petitioner, one filed
by the police for the offence under Section 420 I.P.C. and the other filed by
the complainant himself for the offence under Section 138 of the Negotiable
Instruments Act. Section 300 Cr.P.C. cannot operate as a bar for the present
case as there is no conviction by any competent criminal Court basing on the
same cause of action of issue of the cheque.
4. It is contended by the petitioner's counsel placing reliance on SIDDHARTHA
ELECTRONICS VS. VIDEOCON INTERNATIONAL LIMITED2 of this Court that in order to
constitute the offence of cheating, the intention to deceive must be in
existence at the time when the inducement was made and since inception of the
transaction. In this case, neither in the charge sheet nor in the statement of
the authorized person of the 2nd respondent given to the police under Section
161(3) Cr.P.C., it was stated that there was any deception from the inception of
original agreement on the basis of which the accused was permitted to trade in
commodities. The only allegation is that the accused gave the cheque in
question with an intention to cheat the 2nd respondent. Thus, the allegation of
deception is on the date of issue of the cheque and not on the date of entering
into the agreement for trading in commodities. While issuing the cheque, there
was no allegation of any representation or deception and the 2nd respondent did
not part with any property or valuable security either thereunder or thereafter
in pursuance of the alleged representation or deception. In the absence of any
such basic ingredients of inducement by fraud or deception at the inception of
the transaction, mere giving of cheque for the amount due without there being
sufficient funds in the account of the accused, cannot attract liability under
Section 420 I.P.C. In that view of the matter, I find that the prosecution
could not make out any ingredients for maintaining the charge sheet under
Section 420 I.P.C. against the accused.
5. In the result, the Criminal Petition is allowed quashing proceedings in
CC.No.862 of 2009 on the file of X Additional Chief Metropolitan Magistrate,
Secunderabad.
?1 2003 CRI. L. J. 4405
2 2003-ALT (Cri)-1-409
