whether 420 ipc and 138 NI ACT will lie symultaneously ?

The Accused can be prosecuted in the both S. 420 & 138 simultaneously.

It has no barring.....

Indeed, section 138 N.I. act shares relation, in view of  the facts whereof the intention to defraud exhibits,

in the instant case, since the scenario is "Account closed" , therefore section 138 is maintainable but section 420 ipc still requires a need to be proved, however, the reason on which  the account has been closed may lead to assumption that the intention is to defraud, but cannot be construed expressely.

a case IT ACT with 420, 467, 468 ,120b but i know this ipc not add a spicial act  and time period of charge decide a majisted police submit charge but a long time not decide charge a majisted pls rep me soon with ruling

thx

wbr

manish pareek

adv

I agree with Mr Survesk K sharma, I have the same views

INTROSPECT :

1.  A cheque is a negotiable instrument, both in the hands of the Drawer and the Drawee.  However subject to condition that the negotiable instrument (cheque)  is "alive and valid" , on date.

2.  When account is closed or discontinued, ALL the remaining cheques with the Drawer will automatically by "legal" default BECOME   " DEAD AND INVALID " and  " DOES NOT REMAIN AN NEGOTIABLE INSTRUMENT ".   HERE, the drawer DOES NOT remain the owner of the remaining cheques and the ownership of the cheques now divests with the Bank.  The Drawer either returns all the unused cheques to the Bank  .OR.  declares that he does not have any unused cheques.

3. Hence, (by logic of point no. 2) the drawer is holding "DEAD & INVALID" instruments (cheques) which has no value under the N.I.Act.  Now the drawer cannot lawfully issue such "dead & invalid" cheques (ngotiable instrument) to anybody, for any purpose, except for making a cone for holding "chana singh".

4.  To deliberately issue / use such "dead & invalid" cheques,  "specially so" after the drawer has closed the said bank account,  is malicious intention, which is defined u/s 420 IPC.   The drawer derives LAWFUL right to issue / draw cheques, ONLY IF HIS BANK ACCOUNT IS ACTIVE ON DATE OF ISSUE OF CHEQUE.   Thus the lawful right to issue / draw cheques is lawfully extenguished on closure of Bank account.

5.  The component of  "malicious intention"  (u/s 420 IPC) is conclusively evident, IF one proves that the drawer closed the  account  FIRST and  THEN "subsequently"  a  "dead & invalid" cheque was issued.  Conclusive Evidence = A/c closure bank memo / statement.

6. HOWEVER the scenario is different,  IF the bank account is closed AFTER issue of cheque by drawer,  since it would mean that the cheques "WHEN " lawfully drawn (issued) were "alive & valid" cheque (negotiable instruments).  Meaning that on drawing date, the drawer lawfully used his cheque issuing sanctioned rights given by the drawer's Bank.

7.  There is further no bar in filing a application u/s 138 (N.I.Act)  AND / OR u/s 420 (IPC),  and neither the trial court may refuse to take cognizance of such applications.  However the take here is with proper application of mind,  the trial court may say that since the cheque is declared "dead and invalid", (i,e,  non-negotiable instrument)  a complaint u/s 138 is not maintainable , BUT shall be maintainable only for cheating u/s 420 IPC

8.  Limitation period of N.I.Act is 30 days for initiating appropriate prosecution.  However the limitation period u/ 420 (IPC)  is 2 years and prosecution may be initiated anytime within a period of 2 years.  Civil suit for recovery also may be filed within a period of 2 years.

9.  The above case is equivalent to issues where  XYZ sells off  someone elses property to ABC, very well knowing that the property under question does not lawfull belong to XYZ, thus cheating and defrauding Mr. ABC.

Keep Smiling .... Hemant Agarwal

      I do agree     NANDKUMAR B.SAWANT

Janak R Raval

[Advocate].....

Far same facts when NI 138 is attracted you can not add section 420. I have posted vitation of SC pl go through it.

When you say that 420 I.P.C and 138 NI Act can proceed simultaneouly . I raise a doubt. The proceeding under NI Act is a summary proceeding but when the magistrate takes cognizance u/s 420 I.P.C it can be a warrant case.

Offences u/s 420 IPC and offence u/s 138 N.I. Act are totally distinct and their ingredients are different. Both the offences were committed during the same transaction. Accused could have been charged and tried for both the offences during single trial as per Section 220 of Cr.P.C. However the provisions of Sec.220 are enabling provisions and not mandatory. Accused may be charged and tried for different offences during same trial but that does not prohibit separate trial for different offences.

Dishonour of cheque _ Cheating _ Transfer of case.

Two criminal cases based on the same transaction but for different offences punishable under separate enactments _ Complaint u/s 138 of N.I. Act is pending in the Court at Thane and case for offences u/s 409 and 420 of IPC pending in the Court of the Metropolitan Magistrate at Andheri _ In a complaint u/s 138 the procedure for trial will be of summary trial whereas the case u/s 409 and 420 of IPC will be warrant triable _ If the said under I.P.C. is ordered to be heard along with complaint u/s 138 the result will be delay in disposal of the complaint which will be contrary to the express intention of the legislature _ No case made out for transfer. (See para 8, 9, 10)

Result : Application rejected.

Pradeep Indalkar Vs. State of Maharashtra & ors. CRIMINAL APPLICATION NO.5244 OF 2005 (6-9-2005) (A.S. OKA, J.) (reported in 2008 (12) LJSOFT (URC) 212)

Hi

Learned Members

With Do Earned Respect

I Would like to draw attention to the SC recent ruling which say that if the section 138 of the NI Act, 1881 is applicable or we can say that the offender is punished in the the abovementioned section than again we can't book him u/s 420 of the IPC, 1860. The recent SC Judgement.

The contain of the judgement is also published in Business Standard (Monday) so cant remeber the date but in between 1 feb to 21 feb 2011.  So pls have a look to it.

So go head best of luck sirji.

Thanks A Lot

God Bless U All Experts.

Pratik Signing Off.

no doubt action under 138 NI Act is strong.

However, if theaccount was closed before issue of cheque, then it is clear that the cheque was issued with intention of non-patmenht the action then will be justified under 420- IPC as well.

Dear

LCI experts given you perfect advice, follow instruction.

Respected sir Sh. Sanjeev kuchchal, Sh. Sudhir Kumar and other learned members,

            If in a case of dishonour of cheque cognizance is taken for both offences u/s 420 IPC and u/s 138 N I Act, How the accused will be called  in court through summon or directly through arrest warrant for first appeareance in court.