2022 (7) TMI 303 - HC - Indian Laws

Dishonor of Cheque - dishonor because of mismatch of the drawer s signature - adding colour of criminality to an issue which involves partial non-performance of business obligations - parallel proceedings for offence punishable under Section 420 of the Indian Penal Code can be initiated alongwith Proceedings under Negotiable Instruments Act or not? - HELD THAT - It is now well-settled that in case of offence relating to dishonour of cheque, there is no bar to proceed simultaneously under Section 138 of the Negotiable Instruments Act as well as under Section 420 of the Indian Penal Code. It is to be mentioned that the drawer of the cheque will have to take abundant precaution while issuing the cheque, so that the cheque should be honoured and contracted obligations are fulfilled. If the drawer intentionally tampers with the cheque, the cheque with difference in signature, will be definitely returned. In the present case even after service of statutory notice, the amount involved in the cheque are not paid by the petitioner. In such circumstances, petitioner will have to explain that tampering of cheque if any, was not made with any oblique motive. The mens rea behind issuing such cheque will have to be determined based on the material to be collected during the course of trial - it is for the accused to explain as to how the cheque in question which pertained to his account bearing his incomplete signature reached in the possession of the complainant. Fair trial includes fair and proper opportunities allowed by law to prove innocence of the petitioner. As the materials available so far discloses prima facie offence against the present petitioner, it would not be proper to quash the proceeding at its threshold exercising power under Section 482 of the Code. Application dismissed.

Issues Involved:
1. Quashing of the impugned proceeding under Sections 420/406 of the Indian Penal Code.
2. The relationship between the proceedings under Section 138 of the Negotiable Instruments Act and Sections 420/406 of the IPC.
3. The mens rea (guilty mind) requirement for offences under Sections 420/406 of the IPC.
4. The applicability of precedents and case laws cited by the petitioner.

Detailed Analysis:

1. Quashing of the Impugned Proceeding:
The petitioner sought to quash the proceeding in G.R. Case No.448 of 2019 arising out of Jorasanko Police Station Case No.89 of 2019 under Sections 420/406 of the IPC. The petitioner argued that the complaint was filed after a significant delay without any cogent explanation, suggesting it was an afterthought and a measure to harass. The petitioner contended that the complaint was a counterblast to his inability to make complete payment, and the allegations did not constitute an offence under Section 420 IPC as there was no intention to deceive from the beginning.

2. Relationship Between Proceedings Under Section 138 of the Negotiable Instruments Act and Sections 420/406 of the IPC:
The court noted that it is well-settled that there is no bar to proceeding simultaneously under Section 138 of the Negotiable Instruments Act and under Section 420 of the IPC. The court referenced the case of Sangeetaben Mahendrabhai Patel vs. State of Gujarat, which clarified that while proceedings under Section 138 N.I. Act do not require proof of mens rea, proceedings under Sections 420/406 IPC do. The court emphasized that the nature of the offences under the N.I. Act and IPC are different, and overlapping facts do not bar subsequent criminal proceedings.

3. Mens Rea Requirement:
The court highlighted that to constitute an offence under Section 420 IPC, mens rea or a guilty mind must be proved. The court observed that the petitioner had taken a loan of Rs. 30 lakhs and issued a cheque that was dishonoured due to a signature mismatch. Despite receiving statutory notice, the petitioner did not make the payment, which could indicate a dishonest intention. The court noted that the mens rea has to be gathered from the facts and circumstances, and the petitioner's avoidance of repayment and lack of explanation for the differing signature suggested potential fraudulent intent.

4. Applicability of Precedents and Case Laws:
The petitioner cited the cases of Tapan Kumar Ghosh vs. State of West Bengal and Sripati Singh vs. State of Jharkhand to support his plea for quashing the proceedings. The court found these cases inapplicable. In Sripati Singh, the issue was the dishonour of a cheque due to insufficient funds, which clearly fell under Section 138 N.I. Act. In contrast, the current case involved a signature mismatch, and the petitioner did not provide an explanation or attempt repayment. In Tapan Kumar Ghosh, the court found no inducement or fraudulent intention from the beginning, which differed from the present case where the petitioner's actions suggested possible mens rea.

Conclusion:
The court concluded that the materials available disclosed a prima facie offence against the petitioner, and it would not be proper to quash the proceeding at its threshold under Section 482 of the Code. The court emphasized that the power to quash criminal proceedings should be exercised sparingly and only in rare cases. The petitioner's prayer for quashing the proceeding was dismissed, and the trial was deemed necessary to determine the presence of mens rea and other relevant facts. The court dismissed CRR 3196 of 2019 and ordered no costs.

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