2 case one 138 2nd 420
Amit anand
(Querist) 22 April 2013
This query is : Resolved
A case is filed in faridabad court of 138 where as the cheque was issued only as a guarantee and to be presented only after a written confirmation a letter is also taken from the complainer. Complainer with her influence filled another case of 420 in the police station as the cheque came back with difference in signature, the accused have not taken any cash from the complainer it is a business transaction with a agreement stating that only 4 lack will be given when the material is submitted and the balance will be paid only after 60 day when the product is used , till date the product is not used. Please advise
A. Can I apply for cancellation of case.
B. Is any offence of 420 is there.
What is the best way to come out of it
Advocate M.Bhadra
(Expert) 22 April 2013
There is a provision of filing a case u/sec.138 N.I.Act for cheque bounce,so another case filed by the complainant for same cause of action is not maintainable and bad in laws.You can file a quashing petition u/sec.482 Cr.P.C. in High Court.
Andhra High Court
Mr.G.Man Mohan Hari ... vs The State Of A.P. Rep. By The Public ... on 10 March, 2011
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
ajay sethi
(Expert) 22 April 2013
fight case on merits . since product has not been used you would not be liable to pay balance amount as under contract payment is to be made after 60 days of usage of goods
Raj Kumar Makkad
(Expert) 23 April 2013
Two cases on a single cause of action are not maintainable especially in the given facts so apply to high court under section 482 seeking quashing of FIR.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 April 2013
You have to read any citation as a whole, in above citation of AP HIGH COURT has confirmed that cases u/s 138 of NI act as well as IPC 420 can be filed.
PLEASE READ-
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."
SUPREME COURT HAS ALSO CONFIRMED THIS CONCEPT IN VERY RECENT JUDGEMENT.- IMP PORTION.
27. Admittedly, the appellant had been tried earlier for the offences
punishable under the provisions of Section 138 N.I. Act and the case is
sub judice before the High Court. In the instant case, he is involved
under Sections 406/420 read with Section 114 IPC. In the prosecution
under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest
intention at the time of issuance of cheque is not required to be proved.
However, in the case under IPC involved herein, the issue of mens rea
may be relevant. The offence punishable under Section 420 IPC is a
serious one as the sentence of 7 years can be imposed. In the case under
N.I. Act, there is a legal presumption that the cheque had been issued for
discharging the antecedent liability and that presumption can be rebutted
only by the person who draws the cheque. Such a requirement is not
there in the offences under IPC. In the case under N.I. Act, if a fine is
imposed, it is to be adjusted to meet the legally enforceable liability.
There cannot be such a requirement in the offences under IPC. The case
under N.I. Act can only be initiated by filing a complaint. However, in a
case under the IPC such a condition is not necessary.
28. There may be some overlapping of facts in both the cases but
ingredients of offences are entirely different. Thus, the subsequent case
is not barred by any of the aforesaid statutory provisions.
The appeal is devoid of any merit and accordingly dismissed.
New Delhi,
April 23, 2012
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 April 2013
I am advocate for defense and have firm conviction that accused in any cheque bounce case can be acquitted but that is after proper well planned defense.
Every accused start from day one for dismissal or quash based on lousy theories / stories which instead of helping harms the defense.
MORE OVER EVERY DEFENSE LAWYERS MUST KNOW THE STRONG POINTS OF OPPONENT FIRST AND WEAK POINTS OF THE DEFENSE. THAN ONLY A PROPER EFFECTIVE DEFENSE CAN BE RAISED.
