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TMI Blog2020 (2) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustan Machinary", a sub-contractor of accused no.2, who is the contractor of Railway authority and was awarded with the contract work of doubling the railway track/earth work from Handapa to Nakchi railway line, along with other contract work. During course of business, petitioner3 accused no.1, along with other accused persons, approached opposite party no.2-complainant for supply of its heavy earth moving equipment for construction of doubling railway track work from Handapa to Nakchi on hire basis. After due negotiation amongst the parties, opposite party no.2-complainant engaged its Tata Hitachi 200 (chain mounting) and three numbers of Haiwa on hourly/monthly hire basis from 24.04.2016 under the accused persons in the said work. 2.1 After completion of the work and after adjustment of advance paid by accused persons, on 15.07.2016, it was settled/calculated amongst the parties that a sum of Rs. 8,11,585/- is due upon accused persons. On that date, petitioner-accused no.1 issued a post dated cheque bearing no. 567298 of ICICI Bank, Bhubaneswar Branch in favour of opposite party no.2-complainant mentioning the date as 05.08.2016 for a sum of Rs. 8,00,000/- towards full and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Consequentially, IIC, Angul P.S. registered the complaint as Angul P.S. Case No. 177 dated 31.03.2017 under Sections 418, 420 and 34 of IPC against accused persons, including the petitioneraccused no.1. Hence this application. 3. Mr. S.Pattnaik, learned counsel appearing for the petitioner-accused no.1 strenuously urged that on the basis of factual matrix, it may be a case under Section 138 of N.I. Act, because of dishonor of the cheque/ instrument for insufficiency of funds, but not a case under Sections 418, 420 read with 34 of IPC. It is contended that the learned Magistrate has committed error while invoking jurisdiction under Section 156(3) of Cr.P.C., inasmuch as he has not made enquiry under Section 202 of Cr.P.C., and without making such enquiry sent the complaint petition to IIC, Angul P.S. to register the same as FIR and cause investigation, which cannot sustain in the eye of law. Thereby, the order impugned dated 17.12.2016 cannot sustain in the eye of law and the same has to be quashed, including the consequential criminal proceeding. It is further contended that the "complaint" within the meaning of Section 2(d) of the Cr.P.C. and also the complaint within the mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of the fact gathered from the complaint petition, if a case under Section 420 is made out, the proceeding under Section 138 of N.I. Act may be distinct from that of the criminal proceeding, simultaneously both the proceedings can be initiated against the person who tried to deceive opposite party no.2-complainant. Thereby, on the basis of the complaint lodged before the learned S.D.J.M, Angul, if direction has been given to register the same as FIR and to cause investigation, no illegality or irregularity has been committed rather the same is in consonance with the provisions of law. A further contention is raised, that there is breach of contract and for that different remedies are available under the law, but fact remains the conduct of the parties has to be taken note of by the Court. As such, having satisfied with the complaint lodged by the opposite party no.2-complainant, the Court below, on being prima facie satisfied that a case under Sections, 417, 420 read with Sec. 34 of IPC is made out, forwarded the complaint, vide order impugned, with the direction to register the same as FIR and cause investigation into the allegations, that itself cannot be said to be illegal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned." "202.Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made, - (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient fund. In addition to the same, if on the basis of the factual matrix prima facie it is satisfied that the petitioner-accused no.1 had tried to deceive opposite party no.2-complainant in the entire transaction, then in that case criminal proceeding can also be initiated against the accused persons. 9. In Dr. Lakshman (supra), the apex Court in paragraphs-9 and 10 observed as follows: "9. It is not seriously disputed by the parties with regard to the entering of the agreements for procuring the land in favour of the appellant in Ballur Village, Anekal Taluk, Bangalore Urban District and respondents have received the amount of Rs. 9 crores by way of demand drafts and cheques. It is the specific case of the appellant that there are schedules mentioned to the agreements as per which respondents have agreed to procure the land covered by Survey Nos.115 and 117 of Ballur Village apart from other lands. In a petition under Section 482, Cr.P.C. it is fairly well settled that it is not permissible for the High Court to record any findings, wherever there are factual disputes. Merely on the ground that there is no pagination in the Schedule, the High Court has disbelieved such Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter which is required to be considered only after trial but not at the stage of considering the application under Section 482, Cr.P.C. 10. Learned senior counsel Sri R. Basant appearing for the accused, in support of his case, relied on the judgment of this Court in the case of S.W. Palanitkar and Ors. vs. State of Bihar and Anr.1 and submitted that every breach of contract may not result in a penal offence, but in the very same judgment, this Court has held that breach of trust with mens rea gives rise to a criminal prosecution as well. In a given case, whether there is any mens rea on the part of the accused or not is a matter which is required to be considered having regard to the facts and circumstances of the case and contents of the complaint etc. In the case on hand, it is clearly alleged that even before entering into the agreement dated 26.09.2012, lands were already sold to third party, which were agreed to be procured in favour of the appellant. Not only that, it is the specific allegation of the complainant that the cheques were issued towards security from the account which was also closed much earlier to the date of Agreement itself. Learned counsel also relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offences for which the appellants were charged in the first trial are entirely different. The second trial with which we are concerned in this appeal, envisages a different fact situation and the enquiry for finding out facts constituting offences under the Customs Act and the Gold (Control) Act in the second trial is of a different nature. ... Not only the ingredients of offences in the previous and the second trial are different, the factual foundation of the first trial and such foundation for the second trial is also not indented (sic). Accordingly, the second trial was not barred under Section 403 CrPC of 1898 as alleged by the appellants." (emphasis added) "28. In Union of India v. Sunil Kumar Sarkar [(2001) 3 SCC 414 : 2001 SCC (L&S) 600 : AIR 2001 SC 1092] , this Court considered the argument that if the punishment had already been imposed for court-martial proceedings, the proceedings under the Central Rules dealing with disciplinary aspect and misconduct cannot be held as it would amount to double jeopardy violating the provisions of Article 20(2) of the Constitution. The Court explained that the court-martial proceedings deal with the penal aspect of the miscondu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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