Bhagat Singh Chauhan vs State of U.P.

Suneet Kumar, J.—Heard learned counsel for the applicants and the learned A.G.A.

This application under Section 482 Cr.P.C. has been filed for quashing the Complaint Case No. 642 of 2012 (Ram Prakash alias Ramu v Bhagat Singh Chauhan) filed in the court of Additional chief Judicial Magistrate, Court No. 8, Agra, under Sections 406, 419, 420, 504, 506 I.P.C., Police Station Sikandra, District Agra.

It is sought to be urged that the criminal proceedings initiated for the offence under the Indian Penal Code (I.P.C.) would be misuse of the process of the court. In the event of the cheque being returned by the bank, for insufficiency of funds, Negotiable Instrument Act being a special Act would override the I.P.C., therefore, the applicant should have proceeded under the N.I. Act instead of lodging a complaint for prosecution.

In my opinion, the argument is misconceived.

There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceeding at the same time. Both the proceeding, thus, can run parallely. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis-a-vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt; in a civil suit `preponderance of probability'' would serve the purpose for obtaining a decree.

Section 138 of the Negotiable Instruments Act provides that dishonour of a cheque subject to fulfilment of condition precedent as laid down in the proviso appended thereto is a cognisable offence.

The cause of action for institution of the civil suit was grant of loan whereas that of the criminal case was return of a cheque inter alia on the premise that the account of the accused was insufficient to honour it or that it exceeded the amount arranged to be paid from that account by an agreement with the bank.

The ingredients of the offence under Section 420 I.P.C. and that of Section 138 Negotiable Instruments Act is different and distinct, therefore, can be tried separately. The Supreme Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat and another, (2012) 7 SCC 621, in paras 27 and 28 observed as follows:

"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 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.

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."

In my opinion, the proceedings for an offence under I.P.C. would be maintainable being different and distinct from proceeding under Section 138 of N.I. Act.

In view of the above, this application is rejected.