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Judgment
K.S. Jhaveri, J.—By way of present application u/s 482 of the Code of Criminal Procedure, 1973, the applicant has inter alia prayed for quashing and setting aside the FIR registered vide C.R. No. I-18 of 2004 with Sidhpur Police Station for the offences punishable under Sections 406, 420 read with Section 114 of the Indian Penal Code as well as for quashing the proceedings of Criminal Case No. 5 of 2004 emanated therefrom. It is the case of the applicant that on 08th September 22nd October 2003 the respondent No. 2-Bank filed a complaint u/s 138 of the Negotiable Instruments Act, 1881, inter alia alleging therein that the complainant-Bank had advanced a hypothecation loan of Rs. 20,00,000/- to the applicant pursuant to her application along with accompanying documents and the said loan amount was to be repaid within the period of one year. However, the same was not repaid and the cheque given by the applicant, on its presentation, was returned with an endorsement as "insufficient funds". The said complaint culminated into Criminal Case No. 1334 of 2003.
1.1 Thereafter, on 06th February 2004, the respondent No. 2-Bank filed an FIR against the applicant with Sidhpur Police Station being C.R. No. I-18 of 2004 for the offences punishable under Sections 406, 420 read with Section 114 of the Indian Penal Code, which culminated into Criminal Case No. 5 of 2004, which is pending before the Court of Chief Judicial Magistrate, Patan.
1.2 At the end of trial of aforesaid Criminal Case No. 134 of 2003 filed for the offence punishable u/s 138 read with 142 of the Negotiable Instruments Act, 1881, the applicant was convicted and sentenced to suffer rigorous imprisonment for two years and also imposed fine of Rs. 5,000/- vide judgment and order dated 17th May 2006. Being aggrieved by the said judgment and order of conviction and sentence, the applicant herein preferred an appeal before the Sessions Judge, Patan, wherein the applicant has been acquitted by the Sessions Judge vide judgment and order dated 18th October 2007. Against the said judgment and order, respondent No. 2-Bank has also preferred an appeal being Criminal Appeal No. 1997 of 2007 before this Court, which has been admitted on 15th October 2008 and pending for final hearing.
1.3 It is the case of the applicant that though a complaint u/s 138 of the Negotiable Instruments Act, 1881, was filed by the respondent No. 2-Bank against the applicant, there was no occasion for the respondent No. 2 to lodge an FIR against the applicant, which has culminated into Criminal Case No. 5 of 2004. Hence, present application.
Mr. Tejas Barot, learned advocate for the applicant, has vehemently submitted that when the respondent No. 2-complainant has already filed a complaint u/s 138 of the Negotiable Instruments Act, 1881, the FIR in question was not permitted against the applicant prosecuting her u/s 406 read with Section 420 of the Indian Penal Code; that the subsequent FIR giving rise to Criminal Case No. 5 of 2004 is not maintainable either in facts as well as in law and is clear abuse of process of law and that when the FIR in question was filed, the complaint u/s 138 of the Negotiable Instruments Act, 1881 was pending and, therefore also, the same is not maintainable in the eye of law and it is clear abuse of process of law. In view of aforesaid submissions, it is prayed that present application may be allowed.
Mr. Vyas, learned advocate for the respondent No. 2-Bank, has submitted that the case against the applicant in respect of complaint u/s 138 of the Negotiable Instruments Act, 1881 is pending before this Court by way of appeal; that the proceedings under the Negotiable Instruments Act, 1881 are different than present proceedings of the FIR in question; that present FIR is for cheating and breach of trust, etc. and therefore, the applicant is liable to be prosecuted for the said offences. In support of his submissions, Mr. Vyas has relied upon decision of the Karnataka High Court in the case of Dinesh Harakchand Sankla Vs. Kurlon Ltd. and Others, as well as the decision of Allahabad High Court in the case of Karamveer Singh and Another Vs. State of U.P. and Others, . In view of aforesaid submissions, it is prayed that present application may be rejected.
Mr. J.K. Shah, learned Additional Public Prosecutor appearing for the respondent-State, has adopted the arguments advanced by the learned advocate for the respondent-Complainant. In support of his submissions, Mr. Shah has relied upon the decision of the Apex Court in the case of The State of Andhra Pradesh Vs. Vangaveeti Nagaiah, , and submitted that present application may be rejected.
Having considered the contentions raised by the learned advocate for the petitioner, averments made in the petition and the documentary evidence produced on record, it transpires that to meet with the very contention of the learned advocate for the applicant that two proceedings i.e. proceedings u/s 138 of the Negotiable Instruments Act, 1881 as well as the FIR under Sections 406 and 420 of the Indian Penal Code simultaneously are not maintainable, Mr. Vyas, learned advocate for the respondent No. 2, has relied upon the decision of Veer Singh Yadav (supra), whereby relying upon the decision of the Full Bench decision of Andhra Pradesh High Court in OPTS Marketing (P) Ltd. and others Vs. State of A.P. and another, , the Allahabad High Court has dismissed the petition made by the accused for quashing of the complaint. It would be beneficial to reproduce the relevant part of the said decision in the case of Veer Singh Yadav (supra) as under:
In M/s. OPTS Marketing Pvt. Ltd. (supra) a Full Bench of Andhra Pradesh High Court has held as under:
Even after introduction of S. 138 of the Negotiable Instruments Act, prosecution under S. 420 I.P.C. 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 supplied 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. Private complaint or F.I.R. alleging offence under S. 420 I.P.C. for dishonour of cheques or post dated cheques cannot be quashed under S. 482 Cr.P.C., 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.
In view of aforesaid, it is crystal clear that simultaneously the proceedings can be initiated u/s 138 of the Negotiable Instruments Act, 1881 as well as u/s 420 of the Indian Penal Code.
Further, learned Additional Public Prosecutor has relied upon the decision in the case of State of Andhra Pradesh v. Vengaveeti Nagaiah (supra), to submit that while exercising jurisdiction u/s 482 of the Code, the High Court would not ordinarily embark upon an enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it the accusation would not be sustained. That the Court should be circumspect and judicious in exercising discretion. That the powers possessed by the High Court u/s 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material.
At this stage, Mr. Barot, learned advocate for the applicant, has mentioned the matter and relied upon a decision of the Apex Court in the case of G. Sagar Suri and Another Vs. State of U.P. and Others, , whereby the Apex Court has held that on facts, FIR and the criminal prosecution for the alleged offence under Sections 406 /420 of the Indian Penal Code amounted to abuse of process of law and hence the proceedings liable to be quashed and thereby, quashed the proceedings.
So far as the said decision in the case of G. Sagar Suri (supra) relied upon by the learned advocate for the applicant is concerned, it is required to be noted that the facts of the above cited decision are materially different from that of the present case. In the above cited case, the case before the High Court was that the other directors were not made a party to the FIR, which is not so in the present case. Hence, the above cited decision will not be of any help to the present applicant.
In view of aforesaid facts and circumstances of the case and in light of the decisions relied upon by the learned advocate for the respondents which are applicable to the facts and circumstances of the case as well as in light of the allegations levelled against the applicant, it would not be appropriate for this Court to exercise jurisdiction vested in it u/s 482 of the Code of Criminal Procedure, 1973. For the foregoing reasons, present application fails and is, accordingly, rejected. Rule is discharged. Interim relief stands vacated.