S N Thakur (Entrepreneur) 12 August 2010

Invoking Sec.420/406 IPC then Sec.138 NI Act for Same Cause?

Invoking Sec.420/406 IPC then Sec.138 NI Act for the same instruments permitted by law?

I do require appropriate legal advise for the above question and in the following direction.

If the correct answer is "yes" then under which provision or against which judgement?
If the correct answer is "no" then under which provision or against which judgement?

----------------------------------------------------------------------------------------------------------------

History Summery :

Complainant writes in the FIR that he came to know about the accused in December 2002, between the year 2002 and 2007 he was able to gather faith and confidence in the accused. Complainant was insisted by the accused to invest in a foreign business organisation with a return of 3% profit (Note: This probably indicates their relationship and also SAID profit will be shared with whom, obviously not with the SAID foreign company).

The accused assured the complainant that the invested money will be returned to the complainant after expiry of one year (Note: this is the version of the complainant, said understanding appears to be agreed upon verbally and there is no mentioning that there was a written agreement by the complainant).

So complaint further writes that he was tempted by the accused and invested Rs 5 Lakhs paid through two A/c payee cheques each dated 16.10.2007. The accused en cashed these cheques. Several request were made to the accused to let him (complainant) know of the foreign business organisation with whom said money has been invested (Note: At the time of making said payment the complainant was NOT sure about the said foreign company but somehow he invested said money with the accused).

Thereafter by creating pressure on the accused, complaint states, that he recovered monthly INTEREST on the invested money from the accused (Note: It is unclear how the complaint can recover interest on the invested money by creating any pressure while he earlier said that he intended to share 3% profit out of his investment, contradictory statement, the question arises how 3% profit can be converted into some undefined rate of interest?).

The complainant continues that he was eagerly waiting for 1 year to expire from the date of his alleged investment. On expiry of 12 months complainant demanded that said investment should be refunded to him but the accused replied that he required more time to realise said money as it was lying with a named company in New York.

So the complainant's suspicion grew and threatened the accused that he will lodge a complaint with the police if the money was not refunded to him. Thus for such act of mischief by the accused said complaint continues that he incurred wrongful loss even cheques no 382104 and 382105 of Rs. 50,000 each towards the part payment of his investment as given by the accused was dishonoured. (This is the summery of the FIR content as lodged by the complainant, a criminal case was initiated u/s 420 and 406 IPC)

(Note: The accused has been shown arrested on 30-11-2009, during investigation spent 8 days in PC, further 25 days in correctional home and a total of 72 days in continuous detention.

Later the complainant filed another case under section 138 of NI Act involving the same said cheques.

(Note: However, the content of the complaint under Section 138 NI Act is not known to the accused till date but he gathered information that arrest of warrant has been issued against him by a different magistrates' court regarding the same said cheques No. 382104 & 382105 as mentioned in the above summery of FIR lodged by the same complainant)

List of Dates:

09-09-2009 Till this date concerned Accused resides withing Jurisdiction of NONE of the following Courts.

09-09-2009 FIR lodged by the Complainant with K. PS. involving instruments No 382104 & 382105.

22-10-2009 NI Act 138 Notice received by the Accused involving SAME instruments No 382104 & 382105.

26-11-2009 A Case 367/09 was made by K. PS against the said FIR.

30-11-2009 Accuse was shown arrested, produced before ACJM, 8 days PC granted.

08-12-2009 Accuse was released on AI Bail, later confirmed, complying Court orders.

06-01-2001 Complainant also filed case under NI Act before a different Court connecting SAID notice.

10-08-2010 Sometime before this date a summon was returned from the accused's place.

10-08-2010 Warrant of arrest has been issued by the SAID different court, now known to the accused.

-----------------------------------------------------------------------------------------------------------------

I do require appropriate legal advise for the above question and in the following direction.

If the correct answer is "yes" then under which provision or against which judgement?
If the correct answer is "no" then under which provision or against which judgement?

Reply Follow

4 Replies

Advocate BABULAL (Company Secretary/PA to MD) 12 August 2010

Dear sir,

Its AS Gud as NIAct138 in Indian penal code, with 141, handing over a cheque, promisng the business deals, employing association of business partnership, at lucrative terms of business, but after getting the work done, handing over a cheques does not listen too, and linger on process with judicials systems, its difficult to invoke 420,406,etc.if possible let some one to rrespond?? plz.

Vinod Singh Tomar (Advocate & Legal advisor) 13 August 2010

In the stated facts, there are two cases. one is state case U/S/420 and 406 of I.P.C and another case is U/S138 Of N.I.ACT 1886, and this offence is compoundable and bailable one means the case can be compounded at any time and bail can be demanded from the court as of right. Police does not have power to inquire and investigate a case U/S138 of N.I.Act.

Coming to state case U/S 420 and 406 of I.P.C, 4020 is cognizable, non bailable and and non compoundable and can be compounded only with the permission of the court if clubbed with 138 of N.I.Act. 406 is non cognizable offence. As 420 is cognizable offence, police has taken rightly cognizance of the offence.

Now matter depends upon the leading of the evidence. Answer of YES or No can not be given at this stage.

1 Like

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 13 August 2010

If you are accused you can win hands down and can even file criminal complaint against the complainant.

First go to the court which issued warrant and give application for cancellation of warrant which will be done with some conditions or fine.

You are seeking case laws and provisions of law ; in this manner the accused can not solve the problem.

It is the job of an expert legal person to fit the law and citations for perticular situation.

1 Like

S N Thakur (Entrepreneur) 15 August 2010

Giving further details against the posting "Invoking Sec.420/406 IPC then Sec.138 NI Act for Same Cause?"

As per complainant's version:

22-10-2009 accused received a notice under NI Act 138 from the complainant regarding dishonour of cheques Nos. 382104 and 382105 of Rs. 50,000 each. Besides this, the Complainant says in another FIR dated 09-09-2009 that the Complainant was insisted by the accused to invest in a foreign business organisation with a return of 3% profit. The accused assured the complainant that the invested money will be returned to the complainant after expiry of one year. So the complainant was tempted by the accused and alleged to have invested Rs 5 Lakhs paid through two A/c payee cheques each dated 16.10.2007 with the accused. The accused en-cashed these cheques. Later several request were made to the accused to let complainant know of the foreign business organisation with whom said money has been invested which the complainant guesses to be a false address. Thereafter by creating pressure on the accused, complaint recovered monthly interest on the invested money from the accused. Also by creating pressure on the accused complainant later received two cheques no 382104 and 382105 of Rs. 50,000 each from the accused alleged towards the part payment of his investment, which was later dishonoured. So on 26-11-2009 a criminal case has been initiated against the accused u/s 420/406 IPC also on 06-01-2001 another case u/s 138 NI Act, as per above said notice. These two cases has been filed in two different Jurisdiction of Magistrates' courts while the accused resides even within the jurisdiction of another court.

What happened meanwhile:

The accused has been shown arrested on 30-11-2009, during investigation spent 8 days in PC, further 25 days in correctional home and a total of 72 days in continuous detention. Accuse was released on AI Bail on 08-12-2009, later confirmed, complying Court orders. However, Sometime before 10-08-2010 a summon was returned from the accused's place so on 10-08-2010 Warrant of arrest has been issued by the other court.

As per complainant's version:

The complainant is aggressive and spreading rumors, he falsely implicated the accused to ruin his career and the co-shared business. The relationship between the accused and the complainant was based on particular partnership at will in 2007, it was mutually decided to act on behalf of the other partners in business, for accused being an engineering graduate and also a science graduate, so the question of cheating and misappropriation does not arise. The complainant rather have been taking about Rs.3 Lakh 40 thousand from the accused as loan mostly by cheques as well as cash. So the accused was compelled to lodge a complainant with the local police station against the accused u/s 420/406 IPC on 21-09-2009 which was lodged as a general diary but after his detention and corresponding release on bail he has referred his said complainant to the Superintendent of Police and said general diary was later converted into FIR and a criminal case has been initiated against the complainant as accused on 10-02-2010 u/s 420/406/43 IPC. Besides, the said cheques no 382104 and 382105 were not given to the said complainant as to discharge of accused liability rather the complainant has taken them from the accused by using force assuring the accused as security cheques but later he has written dates on these cheques and presented them for en-cashment. This fact has been witnessed by the news paper supplier of the accused and also a matter in accused's said complainant dated 10-02-2010.