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TMI Blog2011 (8) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Case No.5 of 2004 emanated therefrom. 2. It is the case of the applicant that on 08th September 22nd October 2003 the respondent No.2-Bank filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, inter alia alleging therein that the complainant-Bank had advanced a hypothecation loan of ₹ 20,00,000/- to the applicant pursuant to her application along with accompanying documents and the said loan amount was to be repaid within the period of one year. However, the same was not repaid and the cheque given by the applicant, on its presentation, was returned with an endorsement as insufficient funds . The said complaint culminated into Criminal Case No.1334 of 2003. 2.1 Thereafter, on 06th February 2004, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication. 3. Mr.Tejas Barot, learned advocate for the applicant, has vehemently submitted that when the respondent No.2- complainant has already filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, the FIR in question was not permitted against the applicant prosecuting her under Section 406 read with Section 420 of the Indian Penal Code; that the subsequent FIR giving rise to Criminal Case No.5 of 2004 is not maintainable either in facts as well as in law and is clear abuse of process of law and that when the FIR in question was filed, the complaint under Section 138 of the Negotiable Instruments Act, 1881 was pending and, therefore also, the same is not maintainable in the eye of law and it is clear abuse of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned advocate for the petitioner, averments made in the petition and the documentary evidence produced on record, it transpires that to meet with the very contention of the learned advocate for the applicant that two proceedings i.e. proceedings under Section 138 of the Negotiable Instruments Act, 1881 as well as the FIR under Sections 406 and 420 of the Indian Penal Code simultaneously are not maintainable, Mr.Vyas, learned advocate for the respondent No.2, has relied upon the decision of Veer Singh Yadav (supra ), whereby relying upon the decision of the Full Bench decision of Andhra Pradesh High Court in M/s.OPTS Marketing Pvt. Ltd. and others v. State of Andhra Pradesh and others, reported in 2001 Cr.L.J. 1489, the Allahaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secutor has relied upon the decision in the case of State of Andhra Pradesh v. Vengaveeti Nagaiah (supra), to submit that while exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it the accusation would not be sustained. That the Court should be circumspect and judicious in exercising discretion. That the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent powe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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