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2010 DIGILAW 346 (GAU)

Pawan Anand v. Banajyoti Nath

2010-05-17

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. By making this application, under Section 482, Code of Criminal Procedure, the Petitioner, who is accused in Complaint Case No. 2700/2009, which is presently pending in the court of the Chief Judicial Magistrate, Kamrup, at Guwahati, has sought for quashing of the complaint, which has given rise to the said case. 2. The Petitioner is facing prosecution under Section 138 of the Negotiable Instrument Act, 1881 ('NI Act'). It is the Petitioner's case that following the alleged dishonour of the cheque, the opposite party herein has already lodged, on 25.7.2009, an FIR and, on the basis of the said FIR, Chandmari Police Station Case No. 207/2009, under Sections 406/420/34, IPC, has been registered and the investigation is presently pending. 3. The Petitioner, with the help of this petition made under Section 482, Code of Criminal Procedure, contends that since a case, under Sections 406/420/34, IPC, is pending, for investigation, with the police, as indicated above, the Petitioner's prosecution, under Section 138 of the NI Act, is not legally sustainable. 4. Heard Mr. B.K. Das, learned Counsel for the Petitioner, and Mr. B.S. Sinha, learned Addl. Public Prosecutor, Assam. 5. While considering the ground on which the Petitioner has sought for quashing of the present complaint case, it needs to be borne in mind that dishonour of a cheque may be due to variety of factors. If the dishonour is on the ground of non-availability of funds in the account of the person, who issues the cheque, and when such a person does not, within the prescribed period of receiving notice as provided in Section 138 of the NI Act, make payment of the amount, due under the cheque, to the payee, he exposes himself to prosecution. If, apart from the dishonour of the cheque, due to non-availability of fund in the account of the Petitioner the facts, in a given case, are such as would indicate, or give rise to the inference, that the accused had taken the money by playing fraud on the payee and had, from the inception of the transaction not to honour the cheque, the accused will not only be liable for prosecution for an offence under Section 420, IPC, but also for prosecution under Section 138 of the NI Act. Hence, merely because of the fact that an investigation is pending in a case of cheating lodged against the Petitioner involving the said cheque, his subsequent prosecution, under Section 138, NI Act, cannot be said to be bad or impermissible in law, when the accusation, made against the Petitioner, as an accused, is that his cheque was dishonoured by the bank on account of insufficiency of fund in the accounts of the Petitioner and when the Petitioner does not contend nor does he challenge the legality of his prosecution for the offence of cheating. 6. Situated thus, it becomes clear that this Court cannot invoke its powers, under Section 482, Code of Criminal Procedure, to set aside and quash the prosecution under the said complaint case. 7. This revision is, therefore, not admitted and the same shall accordingly stand dismissed. Petition dismissed.