IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT: HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.4114 of 2009 Between: Ashwin Joshi ... PETITIONER/A-5 a n d Varun Constructions, a partnership firm rep. by its Managing Partner Y. Damodar Parthasarathy and another … RESPONDENTS/COMPLAINANTS ORDER: The petitioner/A-5 is accused of offences punishable under Sections 420, 120-B, 34 I.P.C. in Crime No.106 of 2009 of Ramagopalpet Police Station, along with five others. A-6 is the partnership firm in which A-1 to A-5 are partners and A-5 is the Managing Partner out of them. A-1 to A-5 are all family members and closely related to each other. Private complaint filed by the first respondent/defacto complainant was referred by the XI Additional Chief Metropolitan Magistrate, Secunderabad to the Police for investigation and report under Section 156 (3) Cr.P.C., and the Police issued F.I.R. on that basis. 2. The first respondent is also a partnership firm. A-1 to A-6 entered into registered development agreement with Bhavya constructions on 03-02-2001 with reference to 5075 Sq. yards of site at Somajiguda, Hyderabad. It is alleged that disputes arose between the complainant and Bhavya constructions and that the accused were not in a position to resist the litigation and approached the complainant to protect their interests and that in the said process, the accused executed a Power of Attorney deed on 14-09-2006 in favour of the complainant. The accused were allotted 20.5 flats in the property after its development. It is further alleged that the accused requested the complainant to sell the flats on their behalf as the complainant is also in the field of marketing and that the complainant accepted the same. It is alleged that the accused joined together and hatched up a plan to have illegal gain for themselves and for inducing the complainant to devote its expertise in the field of marketing, reputation, time and effort apart from parting with huge money for selling the flats on behalf of the accused and prosecuting cases before various fora and that in pursuance of their plan, A-5 issued cheque dated 05-08-2008 for Rs.20,12,000/- drawn on Andhra Bank, Jubilee Hills branch, Hyderabad, and that the said cheque was returned for want of sufficient funds on 12-09-2008. When the complainant got issued legal notice, the accused got issued reply putting forward their own case. 3. At this stage it may be noted that the complainant filed C.C.No.1895 of 2008 in the III Additional Chief Metropolitan Magistrate Court, Hyderabad against A-1 to A-6 for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and it is pending. Simultaneously the complainant filed the present private complaint in the lower Court alleging the above offences against A-1 to A-6 and it was referred to the Police for investigation. 4. It is contended by the senior counsel appearing for the petitioner/A-5 that having filed the case under Section 138 of the Negotiable Instruments Act, 1881 against A-1 to A-5, the complainant is barred from filing another complaint for the above offences simultaneously and that there is no possibility of the Courts convicting the accused twice, once for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and again for offences punishable under Sections 120-B and 420 of the Indian Penal Code, having regard to provisions of Section 300 Cr.P.C., and Article 20 (2) of the Constitution of India. 5. As per Section 142 (a) of the Negotiable Instruments Act, 1881, no Court shall take cognizance of any offence punishable under Section 138 of the Negotiable Instruments Act, 1881 except upon a complaint in writing made by the payee or the holder in due course of that cheque, as the case may be. The offence under Section 138 of the Negotiable Instruments Act, 1881 cannot be taken cognizance by the Police and no investigation can be undertaken and no final report/charge sheet can be filed by the Police; whereas offences punishable under Sections 120-B and 420 IPC are cognizable offences in respect of which the Police have got jurisdiction to investigate and file final report/charge sheet. The Police are debarred from laying complaint or charge sheet relating to offence punishable under Section 138 of the Negotiable Instruments Act, 1881. In that view of the matter, both the cases have to be pursued simultaneously, one by the complainant himself under Section 138 of the Negotiable Instruments Act, 1881 and the other through Police for offences under Sections 120-B and 420 IPC which are cognizable offences. There cannot be any prohibition for simultaneous proceedings relating to the subject matter one by way of a private complaint and another through Police investigation. 6. In so far as Section 300 Cr.P.C., and Article 20 (2) of the Constitution of India are concerned, they act as a bar for imposing punishment twice or trial of the accused twice “for the same offence” more than once. Here there are two sets of offences which are distinct from each other. None of the ingredients/statutory facts relating to offence punishable under Section 138 of the Negotiable Instruments Act, 1881 overlapped with offences punishable under Sections 120-B and 420 IPC. When ingredients of two offences are different and distinct, the Court will be justified in imposing two separate punishments on the accused for these two different sets of offences. At any rate, that stage has not reached in the present matter. 7. It is contended by the senior counsel for the petitioner/ A-5 that there is no allegation of deception at the inception of the transaction between the parties i.e., from the date when they have entered into agreement with each other. The transactions between the accused and the complainant are two in number, the first one is Power of Attorney deed, dated 14-09-2006 to look after interest of the accused in the property and to fight litigation in different fora on behalf of the accused against Bhavya constructions, and the second agreement is in respect of marketing of 20.5 flats allotted to share of the accused. It is alleged in paragraph No.9 of the complaint that the accused joined together and hatched up plan to have illegal gain for themselves and by inducing the complainant to devote its expertise in the field of marketing, reputation, time and effort apart from to part with its money for selling the flats on behalf of the accused and also prosecuting the cases before various fora. It is further alleged that in pursuance of their plan, A-5 issued cheque for Rs.20,12,000/- to the complainant on 05-08-2008. Those allegations, in my considered opinion, constitute necessary averments to implicate the petitioner/A-5 for the offence under Section 420 IPC. Apart from the offence under Section 420 IPC the petitioner/A-5 is also accused of offence punishable under Section 120-B IPC which is a distinct offence. Having regard to the above situation and various averments made in the complaint and also the legal position, this Court is of the view that proceedings under investigation cannot be intercepted by exercising powers of this Court under Section 482 of the Cr.P.C. 8. Hence, the petition is dismissed. ________________________________ SAMUDRALA GOVINDARAJULU, J August 20, 2010. PN HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.4114 of 2009 August 20, 2010