Reporting By: Amit Kashyap.
The Hon’ble Karnataka High Court bench of Justice M Nagaprasanna in RASHMI TANDON & ANR Vs. THE STATE OF KARNATAKA, CRIMINAL PETITION No.6638 OF 2021 has ruled that proceedings under Section 420 of the Indian Penal Code is maintainable even if a complaint under Section 138 of the Negotiable Instruments Act has been filed.
The petitioners approached the court, questioning the proceedings registered on 22-07-2021 for an offence punishable under Section 420 of the IPC on the basis of a private complaint filed by one Somashekar.
The petitioners were the Directors of Headwin Exim Private Limited. They approached the second respondent/ complainant for financial assistance in order to meet immediate financial needs in its business. The financial assistance was provided between July and September 2015, and the Company issued five cheques in total. The checks were returned.
The complainant then initiated proceedings under the Negotiable Instruments Act of 1881. The matter is currently pending before the appropriate Court.
Furthermore, on the same instrument of issuance of cheques for which proceedings were initiated under Section 138 of the Act, the complainant filed a private complaint under Section 200 of the Cr.P.C. alleging cheating under Section 420 of the IPC on the part of the Company and its Directors.
Following the filing of the said private complaint, the Magistrate ordered an investigation under Section 156(3) of the Cr.P.C. The Police registers a FIR in response to the aforementioned direction under Section 156(3) of the Cr.P.C.
Counsel for petitioner submitted that the complainant having invoked the jurisdiction of the competent criminal Court by filing a complaint alleging offence punishable under Section 138 of the Act could not have again registered a complaint for the offence of cheating. It would amount to filing two complaints for the same offence.
Counsel for the Respondent submitted that Invoking Section 138 of the Act will not preclude the complainant from registering a crime for offence punishable either under Section 406 or 420 of the IPC as it does amount to cheating and inducement on the part of the accused. It is a matter of trial in which the petitioners have to come out clean and seek dismissal of the petition.”
After hearing both the parties the bench referred to apex court judgement in the case of SANGEETABEN MAHENDRABHAI PATEL VS. STATE OF GUJARAT & ANR (2012) 7 SCC 621 wherein the court considered the very issue of whether a petition under Section 420 of the IPC would be maintainable, during the pendency or even after conviction under Section 138 of the Act. The Apex Court held that the two operate in different fields.
The Apex Court holds that there can be no question of it being violative of Article 20(2) of the Constitution of India or Section 300(1) of the Cr.P.C. as it does not amount to double jeopardy. Therefore, the submission of the learned counsel appearing for the petitioners that the proceeding for offence punishable under Section 420 of the IPC is not maintainable once the complainant invokes Section 138 of the Act is unacceptable. It is a matter of trial for the petitioners to come out clean.”
Accordingly the petition was dismissed by the Hon’ble bench.
Important Citation: SANGEETABEN MAHENDRABHAI PATEL VS. STATE OF GUJARAT & ANR (2012) 7 SCC 621
Advocate for Petitioners: S.G.BHAGAVAN
Advocate for Respondents: B.J.ROHITH & DEVI PRASAD SHETTY.
***********
Judgements In Criminal Law 