IMPORTANT POINT
Accusation of commission of offence under Section 138 of N.I. Act cannot preclude complainant to initiate a proceedings against accused persons under Sections 418, 420 read with Section 34 of IPC if ingredients of such offence are attracted.

JUDGMENT

B.R. Sarangi, J.—The petitioner, being accused no.1 in ICC Case No.217 of 2016 pending in the Court of learned S.D.J.M., Angul, has filed this application seeking to quash order dated 17.12.2016, by which direction has been given to IIC, Angul Police Station for registration of the case and causing investigation as per the provisions contained in Section 156(3) of Cr.P.C.

2. Brief facts of the case, as revealed from the complaint petition filed by opposite party no.2, as complainant before the Court below, are as follows:-

Opposite party no.2-complainant named and styled as “M/s. Jaydurga Transport” is a proprietorship firm and the owner of heavy earth moving equipment. Petitioner-accused no.1 is the owner of “Hindustan Machinary”, a sub-contractor of accused no.2, who is the contractor of Railway authority and was awarded with the contract work of doubling the railway track/earth work from Handapa to Nakchi railway line, along with other contract work. During course of business, petitioner accused no.1, along with other accused persons, approached opposite party no.2-complainant for supply of its heavy earth moving equipment for construction of doubling railway track work from Handapa to Nakchi on hire basis. After due negotiation amongst the parties, opposite party no.2-complainant engaged its Tata Hitachi 200 (chain mounting) and three numbers of Haiwa on hourly/monthly hire basis from 24.04.2016 under the accused persons in the said work.

2.1 After completion of the work and after adjustment of advance paid by accused persons, on 15.07.2016, it was settled/calculated amongst the parties that a sum of Rs.8,11,585/- is due upon accused persons. On that date, petitioner-accused no.1 issued a post dated cheque bearing no. 567298 of ICICI Bank, Bhubaneswar Branch in favour of opposite party no.2-complainant mentioning the date as 05.08.2016 for a sum of Rs.8,00,000/- towards full and final payment. As per commitment of petitioner-accused no.1, on 02.11.2016 the said cheque was deposited by opposite party no.2-complainant with his banker, i.e., Bank of Baroda, Angul Branch, Angul, but it was returned by the Branch Manager on 03.11.2016 due to “insufficient fund” in the account of petitioner-accused no.1. Accordingly, opposite party no.2-complainant, on 03.11.2016, issued a demand notice to petitioner-accused no.1 through its advocate making therein a demand for payment of the aforesaid cheque amount of Rs.8,00,000/- within 15 days from the date of its receipt. But even after receipt of said notice on 07.11.2016, since petitioner-accused no.1 did not take any steps, it was evident that petitioner-accused no.1 had a clear intention to deceive and cheat opposite party no.2-complainant by misappropriating its fund. Petitioner-accused no.1 had dishonest intention, right from the beginning, i.e., from the time of approach for supply of heavy earth moving equipment till issue of cheque in favour of opposite party no.2-complainant, to cheat and cause wrongful loss to opposite party no.2-complainant and wrongful gain for themselves and with such intention they had done the above act. In other words, petitioner accused no.1, in connivance with other accused persons, had intentionally issued the said cheque to deceive and cheat opposite party no.2-complainant.

2.2 In view of commission of such fraudulent act by accused persons, and after bouncing of cheque in question, opposite party no.2-complainant lodged FIR at Angul Police Station, which straightaway refused to accept the same and directed opposite party no.2-complainant to approach the Court. As a consequence thereof, opposite party no.2-complainant filed ICC Case No. 217 of 2016 before the learned SDJM, Angul with a prayer to send the complaint to IIC, Angul Police Station to treat the same as FIR under Section 156(3) of Cr.P.C. and investigate into the case under Sections 418 and 420 of IPC and to submit final form after completion of investigation. Learned SDJM, Angu