Telangana High Court
N.Somashekar Reddy vs Yagga Mallesham on 18 October, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No. 3566 of 2019
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure for quash of the proceedings against the petitioner/accused in C.C.No.217 of 2018 on the file of XII Additional Metropolitan Magistrate at Hyderabad registered for the offence under Sections 406, 448, 506 of the Indian Penal Code.
2. The brief facts which necessitated the petitioner to file this Criminal Petition are as under:
a) The de-facto complainant has lodged a private complaint before the learned XII Additional Chief Metropolitan Magistrate at Hyderabad alleging that the petitioner was introduced by LW2 to the de-facto complainant stating that the petitioner is doing real estate business in Karnataka and prepared to procure land at reasonable prices to the de-facto complainant.
The petitioner has assured the de-facto complainant that after making part payment he would see that sale transaction would be concluded with the registration of the sale deeds. On the inducement of petitioner, the de-facto complainant is has 2 accepted to invest money. It is also the case of the prosecution that de-facto complainant brought some persons claiming themselves to be owners of agricultural land near Karpura Village and made the de-facto complainant to believe that he has been dealing with prospering vendors, who are willing to sell the land to the de-facto complainant. The accused and others have shown some land to the de-facto complainant.
b) In the month of April, 2011, the petitioner came to the house of the de-facto complainant and in the presence of LWs 2 and 3, the de-facto complainant agreed to purchase 62 acres of land for an amount of Rs.32 lakhs each for three acres, which is Rs.53 lakhs. An amount of Rs.18 lakhs was paid in advance to the petitioner by the de-facto complainant to procure the land from different persons. Subsequently, the de-facto complainant has paid an amount of Rs.3,25,00,000/- to the petitioner under different dates. The petitioner started dodging the matter and on enquiry made by the de-facto complainant, he came to know that the petitioner has not transacted with any of the landlords and not paid any advance to anybody and has not invested in any land for the de-facto complainant.
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c) On the insistence of the de-facto complainant, an agreement was executed on 14.06.2013 in favour of the de-facto complainant buy the accused in the presence of LWs 2 and 3 agreeing to procure the land. However, the petitioner has not made any efforts and he did not procure any land and he has not paid money to any of the land owners. On the instance of the de-facto complainant, the petitioner has issued cheque bearing Nos.791913, 791914 and 791915 dated 01.03.2016 for Rs. 50 lakhs each drawn on Karnataka Bank Limited, Banashankari II Stage, Bangalore in favour of the de-facto complainant towards part payment. When the said cheques were presented by the de-facto complainant, they were returned with an endorsement "insufficient funds".
d) The said complaint was forwarded by the learned XII Additional Chief Metropolitan Magistrate at Hyderabad under Section 156 (3) of the Code of Criminal Procedure to the Vanasthalipuram Police Station for further investigation. Accordingly, Police, Vanasthalipuram, has registered a case in Crime No. 53 of 2017 against the petitioner. After completion of investigation, charge sheet was filed against the petitioner under Sections 406, 420, 448 and 506 of the Indian Penal Code, the cognizance of which was taken on file as C.C.No.217 of 2018 4 on the file of learned XII Additional Chief Metropolitan Magistrate at Hyderabad. Aggrieved by the same, the petitioner- accused has filed the present criminal petition to quash the proceedings against the petitioner-accused in C.C.No.217 of 2018 on the file of learned XII Additional Chief Metropolitan Magistrate at Hyderabad on the following grounds:
i) The petitioner was convicted for the offence under Section 138 of the Negotiable Instruments Act in C.C.No.129 of 2017 on the file of learned XI Special Magistrate at Hastinapuram and thus, the prosecution for the offences under the provision of Indian Penal Code in C.C.No.217 of 2018 on the same allegations before the learned XII Additional Chief Metropolitan Magistrate at Hyderabad will amount to double jeopardy and barred under Section 300 (1) of the Code of Criminal Procedure.
ii) As per principle laid down in Kolla Veera Raghav Rao v. Gorantal Venkateshwara Rao and another, a person convicted under Section 138 of the Negotiable Instruments Act cannot be tried under any other provision of Indian Penal Code on the same set of facts.
iii) The facts narrated in both the cases are the same and also the witnesses examined as PWs 1 to 3 in the case under 5 Section 138 of the Negotiable Instruments Act are cited as LWs 1 to 3 in the charge sheet in the case on hand and their depositions in the case under Section 138 of the Negotiable Instruments Act are
3. Heard Sri N.Naveen Kumar, learned counsel for the petitioner, Sri K.L.N.Krishna Murthy, learned senior counsel representing Sri K.Kiranmayee, learned counsel for the respondent No.1 and Sri S.Ganesh, learned Assistant Public Prosecutor.
4. It is submitted by the learned counsel for the petitioner that even if the contents of charge sheet are correct, still no offence is made out and there are no ingredients to allege that the petitioner has committed offence under Sections 406, 420, 448 and 506 of the Indian Penal Code.
5. On the other hand, learned counsel for the respondent No.2-de-facto complainant has submitted that in order to purchase the property, the de-facto complainant has parted with Rs.3.25 crores, which amounts to entrustment of the property and the petitioner was expected to purchase the immovable property from him. However, he has misappropriated the said amount and the used the said amount for himself and 6 did not return the money. Therefore, the ingredients of Section 406 of the Indian Penal Code are very much attracted.
6. The learned counsel for the de-facto complainant has submitted that in order to consider an application under Section 482 of the Code of Criminal Procedure, the Courts are expected to consider only FIR and not required to go through the statements of the witnesses, interpret and veracity of the evidence of the witnesses cannot be considered. The learned counsel for the de-facto complainant has cited an authority reported in Rajeev Kourav v. Baisahab and others1, wherein it was held as under:
"8. We do not agree with the submissions made on behalf of Respondent Nos.1 to 3. The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 CrPC."
7. In the contrary, learned counsel for the petitioner has submitted that it is settled legal position that the Court can take not only FIR but also other connected material available on 1 AIR 2020 SC 909 7 record including the statements of witnesses in order to see as to whether prima-facie case is made out against the petitioner- accused or not.
8. In Kaptan Singh v. The State of Uttar Pradesh and others2, wherein it was held as follows:
"At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 Cr.P.C. quashed the criminal proceedings, by the time the Investigating Officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the Learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the 2 AIR 2021 SC 3931 8 statements recorded. If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is 9 further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material."
9. Considering the above, since the petitioner is seeking quashment of charge sheet, entire material in the charge sheet, including statements of witnesses under Section 161 of Code of Criminal Procedure, can be considered.
10. In order to constitute an offence under Section 406 of the Indian Penal Code, the prosecution is expected to place material before the Court that the petitioner was entrusted with some money and he has misappropriated funds and utilized the said funds for his own use other than for which it was entrusted to. In the case on hand, allegations leveled against the petitioner is that the de-facto complainant has admittedly given Rs.3.25 crores when the petitioner has volunteered that he would procure the land in Karnataka for reasonable price for the de-facto complainant. However, the petitioner neither procured the land for the de-facto complainant nor paid money to the prospering vendors of the land but he has misappropriated the money and used for himself. So, it is a classic case, where 10 Section 406 of the Indian Penal Code is applicable to the facts of the case.
11. In Vijay Kumar Ghai and others vs. The State of West Bengal and others3 the Hon'ble Supreme Court held at paragraphs 31 to 36 as under:
"31. Section 415 IPC defines "cheating" which reads as under:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."
The essential ingredients of the offence of cheating are:
1. Deception of any person
2. (a) Fraudulently or dishonestly inducing that person--
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no so deceived, and which act 3 (2022) 7 SCC 124 11 or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
32. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
33. Section 420 IPC defines "cheating and dishonestly inducing delivery of property" which reads as under:
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
34. Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement.
Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.
35. To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved:
(i) The representation made by the person was false.12
(ii) The accused had prior knowledge that the representation he made was false.
(iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
(iv) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed.
36. As observed and held by this Court in R.K. Vijayasarathy v. Sudha Seetharam [R.K. Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739 : (2020) 2 SCC (Cri) 454] , the ingredients to constitute an offence under Section 420 are as follows:
(i) a person must commit the offence of cheating under Section 415; and
(ii) the person cheated must be dishonestly induced to:
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC."
12. It is contended by the learned counsel for the petitioner that there is no record to show that the petitioner has induced the de-facto complainant from the inception and thereby the de-facto complainant has parted with either money or valuable security. In the case on hand, the petitioner was introduced by 13 LW2 to the de-facto complainant, on which the de-facto complainant has expressed his intention to buy lands in Karnataka. Learned counsel for the petitioner has contended that since the petitioner has not voluntarily came to the de-facto complainant and instead it is the de-facto complainant, who has called the petitioner, it cannot be said that there is no material to show that from the inception the petitioner has dishonest intention to cheat or deceive the de-facto complainant.
13. Learned counsel for the petitioner has relied upon an authority in V.P.Shrivastava v. Indian Explosives Limited and others4, wherein Honourable Supreme Court held as follows:
In our view, a mere mention of the words "defraud" and "cheat" in para 12 of the complaint, in the setting that these have been used, is not sufficient to infer that the appellants had dishonest intention right at the beginning when, demonstrably, after due deliberations a tripartite agreement was signed, which, under the given circumstances at that juncture, was considered to be in the interest of all the three parties to the agreement. In this regard, it would be useful to advert to the following 4 (2010) 10 Supreme Court Cases 361 14 observations made by this Court in Anil Mahajan Vs. Bhor Industries Ltd. & Anr.11:
"The substance of the complaint is to be seen. Mere use of the expression `cheating' in the complaint is of no consequence. Except mention of the words `deceive' and `cheat' in the complaint filed before the Magistrate and `cheating' in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay."
14. It is to be noted that the petitioner has not voluntarily approached the de-facto complainant and only on the invitation of the de-facto complainant and his friend LW2, the petitioner has approached the de-facto complainant. However, the issue is not, how the meeting of the de-facto complainant and petitioner has taken place. The issue is whether the petitioner has induced the de-facto complainant in respect of procuring of land and other connected aspects. According to the prosecution, when the de-facto complainant has expressed his intention to purchase the land, the petitioner has induced the de-facto 15 complainant that he would procure the land for the de-facto complainant at reasonable price, so that the de-facto complainant would get huge profits in future. It is not the case of the petitioner that he has given money to various farmers- vendors, however, those farmers-vendors have subsequently could not keep up their promise and have deceived the petitioner and thereby the petitioner could not procure the land for the de-facto complainant.
15. The petitioner having taken huge money of Rs.3.25 crores, has not procured not even a single acre of land. Apart from that the petitioner has gone to the extent of taking the de-facto complainant to the fake farmers pretending that they are the vendors of the land, who are going to sell the land to the de-facto complainant and subsequently he has not returned the money. Therefore, this conduct of the petitioner would certainly demonstrate that the petitioner with an intention to deceive the de-facto complainant from the inception he has induced the de-facto complainant to deliver/pay huge sum of Rs.3.25 crores. If the petitioner has done any overt-act in furtherance of his intention to procure the land to de-facto complainant like payment of money to the farmer and getting the agreement executed in respect of some land registered in the name of the 16 de-facto complainant, things would have been different. Therefore, it is a clear case, where the intention of the petitioner can certainly be gathered, which is to take money from the de-facto complainant and not to get the land registered and utilized the money for his own use. Therefore, the petitioner cannot say that there is no prima-facie against the petitioner.
16. The other allegation against the petitioner is for the offence under Sections 448 and 506 of the Indian Penal Code. It is alleged by the de-facto complainant that on 29.05.2016 the petitioner went to the house of the de-facto complainant, demanded the de-facto complainant to return the cheques given by him and threatened with dire consequences.
17. In order to fasten the criminal liability against the petitioner-accused for the offence under Section 506 of the Indian Penal Code, the prosecution is expected to prove that the person accused of the offence shall threaten another with any injury to the reputation, property, or his person with an intention to cause alarm to that person to do any act which he is not legally bound to do.
18. According to the learned counsel for the petitioner, there are no grounds to proceed under Section 506 of the Indian 17 Penal Code, and the mere mentioning that the accused has threatened the de-facto complainant with dire consequences itself does not constitute offence under Section 506 of the Indian Penal Code, unless the overt acts committed by the accused are mentioned against the de-facto complainant. Learned counsel for the petitioner has taken this Court to the statements of the witnesses under Section 161 of Cr.P.C., i.e., two statements of LW1 and one statement of LWs 2 and 3. It is further submitted that if the statements are taken into consideration, no offence is made out.
19. Learned counsel for the petitioner has submitted that mere mentioning that the accused has criminally trespassed, does not serve the purpose and the offence under Section 448 of the Indian Penal Code speaks that the petitioner shall trespass into the property with criminal intention.
20. On going through the contents of the complaint, statements of witnesses recorded under Section 161 of Code of Criminal Procedure and material on record, this Court is of the opinion that the learned counsel for the petitioner though made out ground that there are number of discrepancies in the case of the de-facto complainant or in the charge sheet filed against 18 him for the offences under Sections 448 and 506 of Indian Penal Code, still there is primafacie material against the petitioner in respect of offences under Sections 448 and 506 of Indian Penal Code. Truth or otherwise of the facts alleged by the de-facto complainant and other witnesses will have to be tested before the trial Court, until then, considering the material on record, it cannot be said that there is no primafaice case against the petitioner for the offences under Sections 448 and 506 of Indian Penal Code.
21. Learned counsel for the petitioner has submitted that continuation of the proceedings are hit by Section 300 of the Code of Criminal Procedure as on the same set of facts, the de- facto complainant has filed C.C.No. C.C.No.217 of 2018 on the file of XII Additional Metropolitan Magistrate at Hyderabad for the offence under Section 138 of the Negotiable Instruments Act and after full - fledged trial, the petitioner was found guilty and thereby the present case on the same set of facts cannot be permitted to continue. In support of his contention learned counsel for the petitioner has relied upon an authority in Kolla 19 Veera Raghav Rao v. Gorantal Venkateshwara Rao and another5, wherein it was held as follows:
"Learned counsel for the appellant submitted that the appellant was already convicted under Section 138 of the Negotiable Instruments Act, 1881 and hence he could not be again tried or punished on the same facts under Section 420 or any other provision of IPC or any other statute. We find force in this submission.
It may be noticed that there is a difference between the language used in Article 20(2) of the Constitution of India and Section 300(1) of Cr.P.C.. Article 20(2) states: "no person shall be prosecuted and punished for the same offence more than once."
CRIMINAL APPEAL NO. 1160 OF 2006 On the other hand, Section 300(1) of Cr.P.C. States: "300. Person once convicted or acquitted not to be tried for same office__ (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221 or for which he might have been convicted under sub-section (2) thereof."
Thus, it can be seen that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. 5 (2011) 2 Supreme Court Cases 703 20 In the present case, although the offences are different but the facts are the same. Hence, Section 300(1) of Cr.P.C. applies. Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Cr.P.C.
The Appeal is allowed and the impugned judgment of the High Court is set aside."
22. Section 300(1) of the Code of Criminal Procedure is extracted hereunder:
"300. Person once convicted or acquitted not to be tried for same offence.
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof."
23. In another authority reported in Sangeetaben Mahendrabhai Patel v. State of Gujarat and others6, the Honourable Supreme Court held as follows:
"26. Learned counsel for the appellant has further placed reliance on the judgment in G. Sagar Suri & Anr. v. State of U.P. & Ors., (2000) 2 SCC 636, wherein during the pendency of the proceedings under Section 138 N.I. Act, prosecution 6 2012 (7) SCC 621 21 under Sections 406/420 IPC had been launched. This Court quashed the criminal proceedings under Sections 406/420 IPC, observing that it would amount to abuse of process of law. In fact, the issue as to whether the ingredients of both the offences were same, had neither been raised nor decided. Therefore, the ratio of that judgment does not have application on the facts of this case.
Same remained the position so far as the judgment in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr., (2011) 2 SCC 703, is concerned. It has been held therein that once the conviction under Section 138 of N.I. Act has been recorded, the question of trying a same person under Section 420 IPC or any other provision of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) Cr.P.C.
27. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the 22 issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. 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 N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.
28. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions."
24. It is the contention of the learned counsel for the petitioner that contents in C.C.No.129 of 2017 and C.C.No.217 of 2018 are one and the same. On considering the entire material on record, this Court is of the opinion that the facts in both the cases are not one and the same. C.C.No.129 of 2017 is filed for the offence under Section 138 of the Negotiable Instruments Act on the ground that the petitioner has borrowed 23 Rs.3.25 crores alleging that he would procure land from various vendors for the de-facto complainant, however, he could not procure any land and he has not given money to any of the vendors as advance and he has utilized the money given by the de-facto complainant by himself and misappropriated the same for his own purpose and on insistence of the de-facto complainant the petitioner has not only executed an agreement but also issued three cheques for Rs.50 lakhs each and the said cheques were dishonoured on presentation in the bank.
25. On the other hand the contents of charge sheet in the case on hand are that the de-facto complainant on the inducement made by the petitioner has given Rs.3.25 crores to the petitioner for giving same to the prospering vendors so that the de-facto complainant can purchase the land.
26. On going through the entire transactions, the petitioner has committed two set of offences. Initially the petitioner has allegedly induced the de-facto complainant, took some persons and making the de-facto complainant to believe that they are the farmers, who are intending to sell the land to the de-facto complainant and the petitioner has also shown some lands to the de-facto complainant and collected Rs.3.25 crores stating 24 that he would pay the money to the farmers, however, he has utilized the same for his personal use. Neither the petitioner has returned the money nor procured the land nor gave the money to any farmer. Upto this stage, according to the prosecution, the petitioner has committed the offence punishable under Sections 420 and 406 of the Indian Penal Code. Subsequently on the insistence of the de-facto complainant, the petitioner has not only executed an agreement but also gave three cheques of Rs.50 lakhs and they were dishonoured on presentation of the cheques for discharge of money taken by him from the de-facto complainant on the pretext of procuring land. The offence is said to have committed when the cheques given by the petitioner were dishonoured and that made the de-facto complainant to file complaint under Section 138 of the Negotiable Instruments Act.
27. Therefore, the offence under Sections 406, 420 of the Indian Penal Code is one set of offence allegedly committed and at subsequent stage the offence under Section 138 of the Negotiable Instruments Act was committed. The contention raised by the learned counsel for the petitioner that the case on hand has to be quashed on the doctrine of "double jeopardy"
will not apply to the facts of the case as offence alleged to have 25 been committed by the petitioner are much prior to the commission of offence under Section 138 of the Negotiable Instruments Act. It is true that there are money instances, wherein, in case, if cheque was dishonoured, the aggrieved person may file complaint under Section 138 of the Negotiable Instruments Act and also file complaint before the court under Section 420 of the Indian Penal Code for giving the cheques with a dishonest intention inspite of knowing that the said cheque would be dishonoured. It held by this Court in OPTS marketing (P) Limited and others v. State of A.P. and others7 hereunder:
"27. In the result, we hold that (i) even-after introduction of Section 138 of the Negotiable Instruments Act, prosecution under Section 420 IPC is maintainable in case of dishonour of cheques or post-dated cheques issued towards payment of price of the goods purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplier, earlier, if the charge- sheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of the cheque, and the act of issuing the cheque, which was dishonoured, caused damage to his mind, body or reputation, (ii) private complaint or 7 MANU/AP/0119/2001 26 FIR alleging offence under Section 420 IPC for dishonour of cheques or post-dated cheques cannot be quashed under Section 482 Cr.PC if the averments in the complaint show that the accused had, with a dishonest intention and to cause damage to his mind, body or reputation, issued the cheque which was not honoured. Point No.2 is answered accordingly."
28. In view of the rationale laid down in the above said authority of High Court of Andhra Pradesh, it is clear that even if the petitioner was found guilty for the offence under Section 138 of the Negotiable Instruments Act, the case registered against the petitioner under Section 420 of the Indian Penal Code shall continue.
29. In the case on hand, the facts of both the cases are not similar. As already observed, if the case on hand under Section 420 of the Indian Penal Code is registered on account of the fact that the cheques issued by the petitioner were dishonoured and to some extent the contention of the petitioner can be accepted, if the charge sheet filed by the Police under Sections 420, 406 and other offences under the provisions of Indian Penal Code are not in respect of dishonor of the cheque.
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30. The petitioner was charged for the offence on the ground that the petitioner has borrowed Rs.3.25 crores and introduced some persons to the de-facto complainant pretending that they are the farmers, who are going to sell the land and later failed to procure land to the de-facto complainant and apart from that he has misappropriated the said amount and did not return the money. The basis for charge sheet is not the dishonor of cheques at all. Therefore, as long as charge sheet is not filed against the petitioner on account of discharge of the said cheques, the petitioner cannot contend that since he was already convicted for the offence under Section 138 of the Negotiable Instruments Act, the proceedings in C.C.No. 217 of 2018 on the file of XII Additional Metropolitan Magistrate at Hyderabad cannot be quashed.
31. Therefore, if a cheque has been dishonoured and case has been registered for the offence under Section 138 of the Negotiable Instruments Act and if another case is registered by the Police for the offence under Section 420 of the Indian Penal Code for dishonor of the cheque, case under Indian Penal Code cannot be quashed as the case for offences under Section 138 of the Negotiable Instruments Act and the case for the offence under Section 420 of the Indian Penal Code are maintainable, in 28 case, if it is proved that the cheque was issued with an intention of cheating from the inception.
32. Accordingly, the Criminal Petition is dismissed. The trial Court shall proceed with the case C.C.No. 217 of 2018 on the file of XII Additional Metropolitan Magistrate at Hyderabad on merits, uninfluenced by the observations and comments made by this Court in this order.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
_________________________ DR. D.NAGARJUN, J Date: 18.10.2022 AS