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2004 DIGILAW 216 (AP)

Tallamraju Sesha Sai v. Kasani Satyanarayana

2004-02-23

C.Y.SOMAYAJULU

body2004
C. Y. SOMAYAJULU, J. ( 1 ) THIS quash petition under section 482 Cr. PC is filed by the accused in cc No. 293 of 2002, taken cognizance under section 138 of Negotiable Instruments act, 1881 (the act ) read with Section 420 ipc on a charge-sheet filed by police. ( 2 ) A private complaint filed by the first respondent for offences under section 138 of the Act, read with Section 420 ipc was referred to the police for investigation by the learned Magistrate under section 156 (3) Cr. PC, who registered the same as Cr. No. 29 of 2002 of Kowur rural Police Station, who after investigation filed a charge-sheet for offences under section 138 of the Act, and 420 IPC. The learned n Additional Judicial Magistrate of 1st Class, Kowur took it and file as cc. No. 393 of 2002. ( 3 ) THE contention of the learned counsel for the petitioner is that since offence under Section 138 of the Negotiable instruments Act, is not a cognizable offence and since Section 142 of the Act prescribes the procedure for filing complaints under section 138 of the Act, which are not complied with in this case and since the allegations in the private complaint on the charge-sheet do not disclose the necessary ingredients for an offence under Section 420 ipc. The charge-sheet against the petitioner is liable to be quashed. Heard the learned Additional Public prosecutor. ( 4 ) IT is no doubt true that the learned magistrate was in error in referring the complaint under Section 138 of the Act read with Section 420 IPC to police for investigation, because in view of Section 142 of the Act, question of a Magistrate taking cognizance of an offence under Section 138 of the Act, on a charge-sheet filed by police, does not arise. Now it is settled that issuance of a cheque without sufficient funds can be an offence both under section 138 of the Act and Section 420 IPC, also, depending on the facts and circumstances of the case. ( 5 ) IN this case the learned Magistrate was in error in taking cognizance of the offence on a charge-sheet by police for an offence under Section 138 of the Act, in view of Section 142 of the Act. ( 5 ) IN this case the learned Magistrate was in error in taking cognizance of the offence on a charge-sheet by police for an offence under Section 138 of the Act, in view of Section 142 of the Act. But that by itself is not a ground to quash the charge- sheet since the police, after investigation found that the petitioner committed an offence under Section 420 IPC also. The charge-sheet in this case, prima facie, discloses the ingredients of an offence under section 420 IPC. ( 6 ) THEREFORE, the criminal petition is dismissed. The learned Magistrate shall try and dispose of the case uninfluenced by the observations in this order, which are made solely for the purpose of deciding this petition. ( 7 ) BEFORE parting with this case, I must state that merely because a complainant in a case, relating to bouncing of a cheque, files a complaint under Section 138 of the act read with Section 420 IPC. The magistrates should avoid referring the complaints to police for investigation under section 156 (3) Cr. PC. , because there is no scope for police filing a charge-sheet for an offence under Section 138 of the Act. If after going through the complaint and the sworn statement of the complainant, the magistrates were to feel that necessary ingredients for an offence under Section 420 ipc are not made out should take cognizance of the offence under Section 138 of the Act only. If he is satisfied that the ingredients for an offence under Section 420 IPC are also made out, he can take cognizance of the offence under Section 138 of the Act and Section 420 IPC, also. So it is unnecessary to refer the complaint to police for investigation. By such reference to police under Section 156 (3) Cr. PC the magistrate would be causing a great prejudice to the complainant, because the police after investigation cannot file a charge- sheet for an offence under Section 138 of the Act, and even if there is a good case for conviction of the accused, due to the mistake committed by the Magistrate the complainant would be losing his right to prosecute the accused for an offence under section 138 of the Act thereby the Magistrate would willingly or unwillingly help the accused in escaping the punishment for an offence under Section 138 of the Act.