THE HONOURABLE MR v. State by District Crime Branch,Namakkal, Namakkal District

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 03.01.2007Coram:THE HONOURABLE MR.JUSTICE K.N.BASHACrl.R.C.No.388 of 2006and Crl.M.P.No.2401 of 20061. V.Kannan2. Venkatachalam3. Srinivasan... Petitionersvs.State by District Crime Branch,Namakkal, Namakkal District,... Respondent* * *Criminal revision petition has been preferred against the order dated3.1.2006 made in Crl.M.P.No.3166 of 2005, on the file of the JudicialMagistrate No.1, Namakkal.* * *For Petitioners : Mr.R.RajanFor Respondent : Mr.P.Kumaresan, Addl.P.P.COMMON ORDERThis revision is filed by the petitioners challenging the order ofdismissal of the discharge petition filed by them, by the learned JudicialMagistrate No.I, Namakkal, in Crl.M.P.3166 of 2005, dated 3.1.2006.2. The petitioners have been arrayed as A-3 to A-5. The sum andsubstance of the allegation levelled against them is that prior to themonth of April 2001, A-1 to A-5 committed criminal conspiracy by agreeingto do an illegal act of cheating the public by falsely informing them toform an organisation in the name of J.T.P.R.O. (Jai Thamodhaya PublicRelation Organisation) to conduct a small scale industries for a Japancompany for which job opportunity to be offered to the persons who wereable to appoint organisers by sponsoring 100 members each with collectionof a sum of Rs.100/- per member apart from Rs.3000/- a contribution withan intention to cheat the public and collect huge amount from them.Therefore, they have been charged for the alleged offence under Sections120-B, 420 and 420 r/w.34 IPC.3. It is also mentioned in the complaint as well as in the charge-sheet that A3 issued a post-dated cheque, dated 3.4.2002, in favour of thede-facto complaint to the extent of Rs.3,88,500/- and the same was https://hcservices.ecourts.gov.in/hcservices/ dishonored on the ground of 'insufficient fund'.4. The petitioners have filed discharge petition, raising the groundthat the first petitioner/A3 has issued a cheque to one of the witnessesand on that basis, and on the return of the cheque on the ground of'insufficient fund', a case was also filed before the Judicial Magistrate,No.I, Namakkal, in C.C.No.5 of 2003, and the first petitioner wasdischarged from the above case, on 30.1.2004. It is contended in thedischarge petition that the only remedy available for the complainant isto file a complaint under Section 138 of Negotiable Instruments Act and asa matter of fact, the complaint has also been filed under Section 138 ofNegotiable Instruments Act and the same is pending before the JudicialMagistrate Court. Therefore, it is contended by the learned counsel forthe petitioners that filing a case for the offence of cheating wouldamount to double jeopardy.5. Mr.R.Rajan, the learned counsel for the petitioners, vehementlycontended that the informant has already initiated proceedings underSection 138 of the Negotiable Instruments Act and as such, he is notentitled to initiate another proceeding for the offence of cheating, asthe same would amount to double jeopardy. It is also submitted by thelearned counsel for the petitioners that only with a view to humiliate andharass the petitioner, the informant resorted to initiate proceedings forthe offence of cheating. 6. The learned Additional Public Prosecutor, on the other hand,contended that the learned Magistrate rightly dismissed the petition filedby the petitioner for discharge. It is contended by the learnedAdditional Public Prosecutor that the complaint as well as the materialsavailable on record clearly constitutes the offence under Section 420 r/w34 I.P.C. and there are enough materials available on record to implicatethe petitioners herein and there is absolutely no ground made out fordischarge of the petitioners. The contention raised by the learnedcounsel for the petitioners is unacceptable as the proceedings initiatedagainst the petitioners on the basis of the complaint of the de-factocomplainant for the offence under Section 420 I.P.C. is very muchmaintainable in spite of the fact that already the de-facto complainanthas initiated proceedings under Section 138 of the Negotiable InstrumentsAct and the same would not amount to double jeopardy as the ingredients ofthe offence of cheating is made out on the basis of the complaint. 7. I have carefully considered the rival submissions put forth by theeither side and also perused the entire materials available on record,including the complaint and the charge-sheet and other respective records.8. The only contention raised in this matter is that already theinformant has initiated proceedings under Section 138 N.I.Act and as such,he is not entitled to initiate further proceedings for the offence ofcheating, as the same would amount to double jeopardy. 8. At the outset I am unable to accept the contention of the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the petitioners that the affected and aggrieved person,namely, the informant, can initiate both the proceedings, namely, underSections 138 of the Negotiable Instruments Act as well as for the offenceof cheating under Section 420 IPC. 9. The Hon'ble Supreme Court of India has held in CENTRAL BANK OFINDIA VS. M/s. SAXONS FARMS reported in 1999 CRL.L.J. 4571 that,"13. Under Section 142 of the Act, Court can take cognizanceof an offence punishable under Section 138 only on acomplaint in writing made by the payee. Therefore, thepolice could not have started investigation under Section138 of the Act. But if a cheque is dishonoured drawer mayexpose himself to prosecution under various sections of theIndian Penal Code which are cognizable and police could takeup investigation. What was indicated in the notice was thatin addition to the legal action by the appellant-bank underthe Act, option was kept open for taking action against therespondents under the provisions of Indian Penal Code byinforming the police. Therefore, the contention of learnedcounsel for the respondents has no force." A perusal of the complaint shows that there is an allegation to the effectthat the accused had issued a post-dated cheque without making properarrangements of funds into the credit of his account and as such it isclear that the accused had dishonest intention not to honour the amounteven at the time of issuance of the cheque and the act of issuing thecheque which was dishonoured amounts to an offence of cheating. In thiscase, in the charge sheet also it is specifically mentioned that A-1 to A-5 in pursuance of common intention to cheat witnesses 1 to 6, A-3 issued apost-dated cheque, dated 03.04.2002 in favour of them for various amountsto the extent of Rs.3,88,500/- to be drawn in the ICICI Bank, Namakkal,without sufficient fund. Therefore, there are enough materials availableon record to implicate the petitioners, who have been arrayed as A-3 to A-5 for the alleged offence of cheating. 10. The Andhra Pradesh High Court in a Full Bench decision in a casein OPTS MARKETING PVT.LTD. V. STATE OF A.P.(2001 Cr.L.J.1489) has held asfollows :"Even after introduction of S.138 of the Negotiable InstrumentsAct, prosecution under S.420, IPC., is maintainable in case ofdishonour of cheques or post-dated cheques issued towards paymentof price of the goods purchased or hand loan taken, or indischarge of an antecedent debt or towards payment of goodssupplier earlier, if the charge-sheet contains an allegation thatthe accused had dishonest intention not to pay even at the timeof issuance of the cheque, and the act of issuing the cheque,which was dishonored, caused damage to his mind, body orreputation."11. In view of the settled principle of law laid down by the Apex https://hcservices.ecourts.gov.in/hcservices/ Court and the decision of the Full Bench of Andhra Pradesh High Court ascited supra and in view of the materials available on record, this Courtis of the considered view that initiation of proceedings for the offenceunder Section 420 I.P.C., against the petitioner in spite of theproceedings pending against the petitioner for the offence under Section138 of the Negotiable Instruments Act would not amount to double jeopardy. 12. For the above said reasons, the criminal revision petition isdismissed.Consequently, connected miscellaneous petition is dismissed.Msk/ggSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Judicial Magistrate No.1, Namakkal.2. -do-thro the chief Judicial Magistrate, Namakkal.3. The Public Prosecutor, High Court,Chennai.+ One cc to Mr. R. Rajan Advocate SR 316PPV (co)sg 14/5/07Crl.R.C.No.388 of 200603.01.2007