whether 420 ipc and 138 NI ACT will lie symultaneously ?

kumarpsalil,

don't wory u file the case under 138 & 420 ,then there is no problem ,

magistrate will summon to the accused in the section which is fit for the case (how ever 420 can not file with the n.i.act) .

there is a case law relatid yr  case ANWAR ALI PRO. SAMIRA EXPORTERS MUMBAI V STATE OF U.P.,ACC 2004(50)=JIC  2004(2)-659.

 If the cheque is issued with a view to cheat, in the case of its dishonour and non payment after notice of its dishonour, it would be an offence not only under section 138 of the negotiable instruments act but under section 420 of the Indian Penal Code also. I am of the considered opinion that prosecution under section 420 of IPC could be made out in case of dishonour of cheque.

You case is maintainable u/s 138 of N.I. Act. Don't worry, you go through the following case,

 Account closed- N.I. Act section 138 -

1]Dishonour of cheque-cheque issued in discharge of debt incurred four years prior there to- cheque dishonoured with remark "Acount closed"-Non-payment of cheque amount dispite statutory notice of demamd -Debt acknowledged by drawer in his ballance-sheet-debt not barred by time And not being uninforceable-complaint under section 138 -maintainable-Quashing of such comlaint- not proper.

A.V.Murthy v/s B.S.Negabasavanna.

Criminal Appeal no.206/2002. decided on 08/02/2002.[S.C.]

2] Nepc micon & others v/s Megma Leasing Ltd.

Criminal Appeal No.481/1999. decided on 29/04/1999. [S.C.]

Agreed with Adinath and difficult to become agree with Sidique. Section 138 is sufficient to cover your matter.

I do agree with my all Ld. friends besides Mr. Siddiq.

Withou listening to the actual facts and circumstances its difficult to tell but the intention of the O.P must be made at utmost care and diligence

dear friend under complaint 138 NI act is sufficient bt if  u want to prosecute under 420 also then u have to file a seprate complaint under sec420 CrPC. before the lerned megistrate

section 420 is justified in ur complait as the cheque which was dishonoured on the reson that account against which such a cheque was issued was closed...so its clear on this point alone that the drawer has intention to cheat you as he had closed his account after issuing the cheque and without inquiring about the fact that all cheques which were issued encashed or not...and here u can also brought a complaint against the bank also as no bank can close any account for which any cheque book has been issued without recovering all not issued cheques and without making payment against the presented cheques if in the account ther ei balance...in ur case account was closed thats why cheque was not encashed...so it is implied that bank has made negligence in his duty while closing the account without recovering back cancelling all unissued cheques.

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE

MOBILE.09325226691, 09271971251

e.mail.adv.nbsawant@yahoo.co.in

e.mail.nandkumarbs@sify.com

REGARDING THE SEC.138 N.I.ACT AND SEC.42O I.P.C.KINDLY NOTE THAT.

1.AS THERE IS LIMITATION PERIOD FOR FILING THE CASE UNDER N.I.ACT.SEC.138 ,YOU SHOULD GO AHEAD WITH THE COMPLAINT ALREADY FILED IN THE COURT. PROCESS WILL BE ISSUED UNDER SECTIONM 138 OF N.I.ACT.

2.AS FAR AS SEC.420 OF I.P.C. IS CONCERNED KINDLY GO THROUGH THE EXACT SECTION 420 OF I.P.C. AND YOU WILL COME TO KNOW THE INGREDIENTS. YOU ARGUE STRONGLY .COURT WILL DECIDE THE MATTER.

3.SECTION 420 OF I.P.C. IS A COGNIZABLE OFFENCE AND COMPLAINT CAN BE FILED AT POLICE STATION. BUT UNDER SEC.138 OF N.I.ACT COMPLAINT SHOULD BE FILED IN COURT ONLY. POLICE HAVE NO PART TO PLAY IN THE CASE EXCEPT SERVICE OF SUMMONS OR WARRANT OF THE COURT.PLEASE NOTE.

HENCE I SUGGEST THAT YOU MAY GO AHEAD WITH WHATEVER COMPLAINT YOU HAVE FILED AND COURT WILL ISSUE PROCESS UNDER SECTION 138 OF N.I.ACT. ONLY. THAT WILL SERVE YOUR PURPOSE AND YOUR CASE YOU CAN PROVE IN THE COURT BY SUBMITING EVIDENCE.

4.YOU MAY PREFER REVISION IN HIGH COURT IN CASE YOU WISH TO FOLLOW UP YOUR INTENTION FOR ADDING SEC.420 BUT KINDLY DO NOT  FOLLOW UP THE SAID REMEDY.IT WILL PROLONG THE MATTER AND NOT ADVISABLE IN THE INTEREST OF COMPLAINENT.PLEASE NOTE

IN CASE YOU NEED ANY HELP KINDLY SEND DETAILS OR CALL.

WITH BEST REGARDS TO YOU YOUR FAMILY AND FRIENDS

THANKING YOU

YOURS SINCERELY

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE.

yes i agree with adinath. u cannot withdraw and file another case.continue the same......if offence u/s 420 is made out , accused can be convicted for both 420 and 138

Kumarpssalil, it correct both the both the provisions canot  be embarked in to motion as both are diffrent as well as provides seperate punishments and ingrdients fo the offence. It is clear that 420 of I.P.C. is difficult to prove since inception the deceitful intention is to be seen which can be assessed by going through the facts of the each case. Delhi high court  has sepecifically held in the year 2008-2009 that both the provisions can't n be put in motion as dishonour of cheque is a special offence and governes by the special Act of N.I Act therefore the penal Code Can not be put in motion. (Bhupender Sharma) Adv.     

I agree with Mr.Siddiq.