9911796707
TMI Blog2018 (9) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... f registration of FIR. Precisely stated facts of the case (and prosecution story) are that a written application was submitted by respondent No.2/ complainant on 04/08/2018 at Police Station Jhansi Road, Gwalior with the allegations that he lended some amount by way of hundi transaction to petitioner No.1 under the knowledge of petitioner No.2, part of which was repaid by the petitioners and as of now Rs. 41,50,000/- is to be paid by the petitioner No.1. Since petitioner No.1 started dilly dallying the matter and was not prompt in repayment therefore, social involvement was sought by respondent No.2 resulted into issuance of cheque for payment of Rs. 28,00,000/-, which got dishonoured for which private complaint under Section 138 of Negot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the same has not been preferred before the High Court and petitioner No.1 has not preferred any anticipatory bail. He prayed for quashment of FIR. Petitioners relied upon the judgments of the Hon'ble Apex Court in the case of G. Sagar Suri and Another Vs. State of U.P. and Others, 2000 (2) SCC 636 and Kola Veera Raghav Rao Vs. Gorantla Venkateswara Rao and Anr., (2011) 2 SCC 703 while asserting for quashment of FIR. Per contra, learned counsel for the respondents/ State opposed the prayer made by the petitioners and on the basis of case diary submits that the investigation is at initial stage. Learned counsel for the private respondent try to match the vehemence of the petitioners and submits that it is too early for the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble Apex Court in the case of Shri Mahavir Prashad Gupta & Anr. Vs. State Of National Capital and Others, 2000 (8) SCC 115. He prayed for dismissal of the writ petition. Heard the learned counsel for the parties at length and perused the case diary. From perusal of the case diary, it appears that FIR has been registered on dated 04/08/2018 for the alleged offences under Sections 420, 406, 506, 120-B of IPC. The main allegations appears to be to receive the amount from respondent No.2 to siphon off the money with intention to receive wrongful gain and with intention to cheat the respondents the amount has been siphoned off in the name of some other person (grand son of petitioner No.1) by way of gift. Therefore, criminal breach of trus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials. A plea of autrefois acquit is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter. " The Hon'ble Apex Court in the case of Sangeetaben Mahendrabhai Patel (supra) has further dealt this dictum and expression is as under:- "35. The learned counsel for the appellant has further placed reliance on the judgment in G. Sagar Suri Vs. State of U.P. Wherein during the pendency of the proceedings under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case under the NI Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under the NI Act, if a fine is imposed, it is to be adjudicated to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under the NI Act can only be initiated by filing a complaint. However, in a case under IPC such a condition is not necessary. " Similarly, one more fact which goes against the present petitioner is availment of Section 438 of Cr.P.C. at the instance of petitioner No.2. Petitioners cannot be al ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
