THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL PETITION NO.2478 OF 2009 Date: 22.11.2011 Between: V.Narashimhan …..Petitioner And The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL PETITION NO.2478 OF 2009 ORDER: Heard Sri K.Suresh Kumar Reddy, the learned counsel for petitioner and also the learned Additional Public Prosecutor. 2. The petitioner herein is the accused in C.C.No.157 of 2005 on the file of the Court of Judicial First Class Magistrate, Palakol (trial court). He filed this petition for quashing the proceedings in the said case. 3. Initially second respondent herein who is the de facto complainant filed a private complaint before the trial court alleging offences punishable under Sections 406 and 420 of Indian Penal Code, 1860 (IPC) and also an offence punishable Section 138 of the Negotiable Instruments Act, 1881 (for short Act). The trial court referred that complaint to the Station House Officer, Achanta Police Station for investigation and report. Later on the Sub-Inspector of Police, Achanta filed charge-sheet against the petitioner showing that the petitioner has committed the above offences. 4. The learned counsel for petitioner has raised two contentions for quashing the above case. The first is that the allegations mentioned in the charge-sheet do not disclose the offences punishable under Sections 406 and 420 IPC and also the offence punishable under Section138 of the Act. I am however unable to agree with this contention. 5. It may be noted that the allegations in the charge-sheet would show that the petitioner acting as the managing partner of a concern called Sri Kalikambal Finance and Investment Corporation, Ponneri invited the de facto complainant to invest monies in his company or concern and later on did not pay the maturity value of the said investments and in stead, he issued cheques which were dishonoured. The version of the complainant is that the petitioner has cheated him. It may be noted that whether the petitioner invited the deposits without any intention to repay them or not is a question which has to be decided by the trial court in a discharge petition or in the course of trial. It would be enough to note that receiving money without the intention to pay it at the very inception is the ingredient which constitutes cheating and whether this ingredient is there or not ultimately has to be decided by the trial court but at present the allegations in the charge-sheet would show that the petitioner received the said amount without the intention to repay it. 6. Then coming to Sections 406 and 420 IPC, the allegation is that the petitioner has received money by misrepresentation and committed criminal breach of trust in respect thereof. Whether this offence is established or not is also a question of fact which has to be decided by the trial court. To sum up, so far as the offences punishable under Sections 406 and 420 are concerned, the charge-sheet contains the allegations which disclose the same and hence the first contention of the learned counsel for the petitioner cannot be accepted. 7. The second contention relates to the offence punishable under Section 138 of the Act. It is not clear from the certified copy of the charge-sheet filed and the endorsements thereon whether the trial court has taken cognisance of the case for the offence punishable under Section 138 of the Act also. It may be noted that if the trial court has taken cognisance of the case for that offence also on the present police charge-sheet that cannot be said to be legal inasmuch as Section 142 of the Act lays down that an offence under Section 138 of the Act can be taken cognisance of only on the complaint of the payee or the holder in due course of the cheque. However it is not clear whether the trial court has taken cognisance of the matter for that offence also ignoring the above bar. Hence, it is open for the petitioner to raise his above objection with regard to that offence and also his objection for the other offences before the trial court. 8. For the aforesaid reasons, both the contentions of the learned counsel for petitioner are rejected and this criminal petition is dismissed. ___________________________ JUSTICE N.RAVI SHANKAR 22nd November, 2011 Tjmr THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL PETITION NO.2478 OF 2009 DATE: 22.11.2011