Chattisgarh High Court
Jitendra Sahu vs State Of Chhattisgarh on 2 August, 2023
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 1692 of 2023
Jitendra Sahu S/o Vikram Sahu, Aged About 35 Years,
Resident of Ward No. 14, Adarsh Nagar Basna, Tahsil
Basna, District Mahasamund (C.G.)
---- Petitioner
Versus
1. State Of Chhattisgarh Through Station House Officer, Police
Station Basna, District Mahasamund (C.G.)
2. Rinki Kour Saluja W/o Navjot Singh Saluja, Aged About 30
Years, Resident of Ward No. 2, Basna, Police Station
Basna, District Mahasamund (C.G.)
---- Respondents
(Cause Title is taken from Case Information System) For Petitioner : Mr. Shikhar Sharma, Advocate For State/Respondent No.1 : Ms. Astha Shukla, Govt. Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 02.08.2023
1) The petitioner has challenged the FIR No.364/2023 registered at Police Station Basna, District Mahasamund (C.G.) for commission of offence punishable under Section 420 of the IPC on complaint of one Reki Saluja on 06.07.2023, inter alia on the allegation that the petitioner was in the need of some house hold work, he asked the husband of the complainant, who advanced loan of -2- Rs.13,90,000/- and the amount was received by the petitioner in different installments. The petitioner issued cheque in favour of the complainant to discharge the liability and same was presented before the bank and it was dishonoured. Thereafter, the complainant filed a case under Section 138 of the Negotiable Instruments Act and also lodged the FIR.
2) Learned counsel for the petitioner would submit that a false case has been registered against the petitioner. The amount which was given to him has already been repaid through different bank transactions. He would further submit that a report was lodged by the petitioner against the complainant to the effect that his signature had been taken on a blank stamp paper. He would submit that if the entire FIR is accepted no offence is made out. He would pray to quash the FIR.
3) On the other hand, learned counsel for the State would oppose. Ms. Astha Shukla submits that in the matter of Sangeetaben Mahendrabhai Patel v. State of Gujarat, reported in (2012) 7 SCC 621, while dealing with the same question, i.e., whether prosecution for offence under Section 138 of the NI Act and offences under Section 406, 420 of the IPC can be continued simultaneously against an -3- accused on same set of facts, the Hon'ble Supreme Court in para 37 answered it that ingredients of both the offences are entirely different and subsequent case is not barred by any of the statutory provisions. Para 37 of the judgment referred by the learned counsel for the State reads as under:-
"37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is subjudice 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 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."
She would further submit that High Court of Andhra Pradesh in the case of V Kutumba Rao v. Chandrasekhar Raso, 2003 Cri LJ 4405 while dealing with similar issue in para 11 has held as under:-
"11, In my considered opinion the offences under Section 420, IPC and Section 138 of the Act are distinct and separate offences. If a person fraudulently or dishonestly induces another person to deliver any property or to do or omit to do anything which he would not do or omit if he were not deceived and such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property commits an offence of cheating. Such a person commits the offence punishable under Section 420, IPC. In a prosecution under Section 138, Negotiable Instruments Act any inducement so as to make the other person to deliver any -4- property etc. as defined in Section 415, IPC, is not an ingredient. If a person issues a cheque and subsequently if the cheque was dishonoured by the Bank for want of funds, etc. and thereafter even after issuance of demand notice, the said person fails to pay the amount covered by the cheque within the time stipulated by Negotiable Instruments Act, that person commits an offence punishable under Section 138 of the Act. The question of inducement to other person to part with any property to do or omit to do anything does not at all arise for a decision in a prosecution under Section 138 of the Act. The offence under Section 138 of the Act is not committed on the date of issuing the cheque. The offence happens after it was dishonoured by the Bank for specified reasons and thereafter even after demand the person concerned fails to pay the amount covered by the cheque to the other person. These facts do not fall for a decision in a prosecution under Section 420, I.P.C. Some times at the time of issuing the cheque a person may induce the other person to part with property, etc. If such inducement is dishonest or fraudulent he may be committing the offence of cheating and thereby he becomes liable for prosecution. If such a person later within the time stipulated under the provisions of Negotiable Instruments Act repays the other person amount covered by the cheque he will not be liable for prosecution for the offence under Section 138 of the Act but still he can be prosecuted for the offence of cheating if at the time of issuing the cheque he had fraudulently or dishonestly induced the other person to part with property, etc. In a prosecution under Section 138, Negotiable Instruments Act, the mens rea viz., fraudulent or dishonest intention at the time of issuance of cheque need not be proved. However, in a prosecution under Section 420 I. P.C. mens rea is an important ingredient to be established. In the former case the prosecution has to establish that the cheque was issued by accused to ischarge a legally enforceable debt or other liability. This ingredient need not be proved in a prosecution for the charge under Section 420, IPC. Therefore, the two offences covered by Section 420, IPC and Section 138, Negotiable Instruments Act are quite distinct and different offences even though sometimes there may be overlapping and sometimes the accused person may commit both the offences. The two offences cannot be construed as arising out of same set of facts. Therefore, Section 300, Cr.P.C. is not a bar for separate prosecution for the offences punishable under Section 420, IPC and Section 138 of the Negotiable Instruments Act. The question of application of the principles of double jeopardy or rule estoppel does not come into play. The acquittal of the accused for the charge under Section 420, IPC does not operate as estoppel or res judicata for a finding of fact or law to be given in prosecution under Section 138 of the Negotiable Instruments Act. The issue of fact and law to be tried and decided in prosecution under Section 420, IPC are not the same issue of fact and law to be tried in a prosecution under Section 138 of the Act..........."
4) I have heard learned counsel for the parties and perused -5- the documents.
5) The offences under Section 420, IPC and Section 138 of the Negotiable Instruments Act are distinct and separate offences. If a person fraudulently or dishonestly induces another person to deliver any property or to do or omit to do anything which he would not do or omit if he were not deceived and such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property commits an offence of cheating. Such a person commits the offence punishable under Section 420 of the IPC. In a prosecution under Section 138 of the Negotiable Instruments Act any inducement so as to make the other person to deliver any property etc. as defined in Section 415 of the IPC, is not an ingredient. If a person issues a cheque and subsequently if the cheque was dishonoured by the Bank for want of funds, etc. and thereafter even after issuance of demand notice, the said person fails to pay the amount covered by the cheque within the time stipulated by Negotiable Instruments Act, that person commits an offence punishable under Section 138 of the Negotiable Instruments Act. From bare perusal of the provisions of Section 420 of the IPC and Section 138 of the Negotiable Instruments Act it is apparent that scope and application of both the provisions are entirely different. -6-
6) Taking into consideration the facts of the present case where there are allegations in the FIR against the petitioner and further taking into consideration the law laid down by the Hon'ble Supreme Court and the High Court of Andhra Pradesh, in opinion of this Court no case is made out for interference. Consequently, this petition fails and is hereby dismissed.
Sd/-
(Rakesh Mohan Pandey) Judge Aadil