2011 (3) TMI 1826 - HC - Indian Laws

Summary

Issues involved:
Accused facing charges under Section 420 IPC and Section 138 of the Negotiable Instruments Act, legality of maintaining separate cases for both offenses, application of Section 300 Code of Criminal Procedure, competency of police to investigate Section 138 offense, elements required to establish offense of cheating under Section 420 IPC.

Summary:

Issue 1: Legality of maintaining separate cases for offenses under Section 420 IPC and Section 138 of the Negotiable Instruments Act

The petitioner argued that being tried for both offenses based on the same cause of action is not permissible under Section 300 of the Code of Criminal Procedure. However, the court clarified that the two offenses have distinct elements, with mens rea being crucial for Section 420 IPC but not for Section 138 of the Negotiable Instruments Act. The court cited a previous case to emphasize the differences between the offenses and concluded that separate prosecutions for both offenses are valid, as they do not arise from the same set of facts.

Issue 2: Competency of police to investigate Section 138 offense

The court highlighted that under Section 142(a) of the Negotiable Instruments Act, only a complaint by the payee or holder in due course can initiate proceedings for a Section 138 offense. As a result, the police cannot investigate or file charges for this offense. Since the offense under Section 420 IPC is cognizable, the complainant reported it to the police for investigation, while a private complaint was filed for the Section 138 offense. The court affirmed that there is no legal impediment to maintaining two separate cases against the accused in this scenario.

Issue 3: Elements required to establish offense of cheating under Section 420 IPC

The petitioner's counsel argued that the offense of cheating requires the intention to deceive from the inception of the transaction. However, the court found that in this case, the allegation of deception was only related to the issuance of the bounced cheque and not the original agreement for trading in commodities. As there was no evidence of deception at the inception of the transaction, the court concluded that the prosecution failed to establish the necessary elements for maintaining the charge under Section 420 IPC. Consequently, the court allowed the criminal petition, quashing the proceedings in the case.

In conclusion, the court upheld the legality of maintaining separate cases for offenses under Section 420 IPC and Section 138 of the Negotiable Instruments Act, clarified the competency of the police to investigate the Section 138 offense, and emphasized the essential elements required to establish the offense of cheating under Section 420 IPC.