THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL PETITION No.5711 of 2009 BETWEEEN: Mr.G.Man Mohan Hari Prakash, S/o.Mr.G. Ramaswamy … Petitioner AND 1. The State of A.P. rep. by the Public Prosecutor & another. … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.5711 of 2009 ORDER: The petitioner is accused of offence punishable under Section 420 I.P.C. in CC.No.862 of 2009 on the file of X Additional Chief Metropolitan Magistrate, Secunderabad. It is alleged that the accused entered into agreement with Sripad Commodity and Derivatives Private Limited, Secunderabad, traded in commodities and became liable to pay Rs.30,62,880.80 paise and that towards discharge of the said liability, the accused issued cheque dated 15.06.2006 for the said amount in favour of the above company and that the said cheque was bounced for want of sufficient funds in the account of the accused and that the accused issued the cheque with an intention to cheat the de facto complainant. 2. The main contention on which this petition is filed is to the effect that another complaint was filed by the complainant against the petitioner alleging offence under Section 138 of the Negotiable Instruments Act in CC.No.890 of 2007 and that when it is pending trial, the present case CC.No.862 of 2009 for offence under Section 420 I.P.C. on the same allegations and on the same cause of action is not maintainable as the petitioner cannot be tried twice on the same allegations in view of Section 300 Cr.P.C. This is not a case where the petitioner/accused was convicted for one of the two offences by any competent criminal Court and thereafter is being tried for another offence on the basis of the same cause of action. In this case, both the criminal cases one for the offence under Section 138 of the Negotiable Instruments Act and the second one for the offence under Section 420 I.P.C. are pending trial. Ingredients of the above two offences are entirely different. This Court in V.Kutumba Rao Vs. M.Chandrasekhar Rao[1] lucidly discussed this subject in the following manner: “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, IPC 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 discharge 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 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 prosecutions for the offences punishable under Section 420, IPC and 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 prosecution under Section 138 of the Act. I, therefore, do not find any force in the contentions advanced on behalf of the accused.” 3. Further, the police are incompetent to register a case for the offence under Section 138 of the Negotiable Instruments Act and to investigate into the same and to file charge sheet for the said offence. Section 142(a) of the Negotiable Instruments Act creates a bar for the Court to take cognizance of any offence punishable under Section 138 except on a complaint in writing made by the payee or the holder in due course of the cheque. Therefore, there is no possibility of the police investigating into both the offences under Section 420 I.P.C. and Section 138 of the Negotiable Instruments Act together even though both the offences arise out of the same transaction of issuance of the cheque which was dishonoured later. Since the offence under Section 420 I.P.C. is a cognizable offence, report is given by the de facto complainant to the Police for investigation of the offence under Section 420 I.P.C; and since cognizance for the offence under Section 138 of the Negotiable Instruments Act can be taken only upon a private complaint filed by the payee of the cheque, the complainant filed separate private complaint against the accused. Thus, two criminal cases are filed against the petitioner/accused, one by the complainant himself and another by the police; and both are being tried simultaneously. There is no legal bar for maintaining two criminal cases against the petitioner, one filed by the police for the offence under Section 420 I.P.C. and the other filed by the complainant himself for the offence under Section 138 of the Negotiable Instruments Act. Section 300 Cr.P.C. cannot operate as a bar for the present case as there is no conviction by any competent criminal Court basing on the same cause of action of issue of the cheque. 4. It is contended by the petitioner’s counsel placing reliance on SIDDHARTHA ELECTRONICS VS. VIDEOCON INTERNATIONAL LIMITED[2] of this Court that in order to constitute the offence of cheating, the intention to deceive must be in existence at the time when the inducement was made and since inception of the transaction. In this case, neither in the charge sheet nor in the statement of the authorized person of the 2nd respondent given to the police under Section 161(3) Cr.P.C., it was stated that there was any deception from the inception of original agreement on the basis of which the accused was permitted to trade in commodities. The only allegation is that the accused gave the cheque in question with an intention to cheat the 2nd respondent. Thus, the allegation of deception is on the date of issue of the cheque and not on the date of entering into the agreement for trading in commodities. While issuing the cheque, there was no allegation of any representation or deception and the 2nd respondent did not part with any property or valuable security either thereunder or thereafter in pursuance of the alleged representation or deception. In the absence of any such basic ingredients of inducement by fraud or deception at the inception of the transaction, mere giving of cheque for the amount due without there being sufficient funds in the account of the accused, cannot attract liability under Section 420 I.P.C. In that view of the matter, I find that the prosecution could not make out any ingredients for maintaining the charge sheet under Section 420 I.P.C. against the accused. 5. In the result, the Criminal Petition is allowed quashing proceedings in CC.No.862 of 2009 on the file of X Additional Chief Metropolitan Magistrate, Secunderabad. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 10.03.2011 Note: LR copy to be marked B/o ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.5711 of 2009 DATED: 10.03.2011 ysk [1] 2003 CRI. L. J. 4405 [2] 2003-ALT (Cri)-1-409