IMPORTANT POINT
Where bouncing of cheques, both on the ground of insufficiency of funds as well as payment stopped, where post dated cheques were issued towards repayment of security deposits, were subject matter of complaint u/s. 138 N.I. Act, there could not be a parallel investigation by police in an FIR for offences under Section 420 IPC and Section 138 Negotiable Instruments Act.

A.K. Parichha, J.— This is an application under Section 482 of the Code of Criminal Procedure (in short, “Cr. P.C.”) for quashing the proceedings in GR. Cases No. 896 of 2004 of the Court of learned SDJM, Puri arising out of Kumbharapara P.S. Case No. 144 of 2004 involving offences under Section 420/34, IPC and Section 138 of the Negotiable Instrument Act.

2. Opp. Party No.2 lodged an F.I.R. on 29.7.2004 in Kumbharpara Police Station alleging that the petitioners who are Managing Director and Finance Director respectively of M/s. Smith and Kenner Pharmaceuticals Pvt. Ltd., Hyderabad had business transaction with him and in that connection they had issued 12 post-dated cheques, each worth of Rs. 50.000/- towards repayment of the security deposit. But on presentation in the Bank, those cheques were dishonoured one after the other. Basing on the said F.I.R., Kumbharpara P.S. Case No.144 of 2004 was registered under Sections 420/34. IPC and Section 138 of the Negotiable Instruments Act, (in short. “the Act”) and investigation of the case is going on. The petitioners have filed the present application under Section 482. Cr. P.C. to quash the said investigation and proceedings of the G.R. Case No. 896 of 2004 basically on the plea that such case is not ‘ maintainable in the eye of law.

3. Mr. S.N. Mohapatra, learned Senior Counsel appearing for the petitioners submitted that complaint cases bearing ICC Nos. 79 of 2004, 113 of 2004, and 135 of 2004 having already been filed in the Court of learned SDJM. Puri on the issue of bouncing of cheques bearing Nos. 164276 dated 28.1.2004. 164277 dated 28.2.2004. 164278 dated 28.3.2004 and some complaint cases having been filed subsequently for the rest cheques. G.R. Case No.896 of 2004 on the same issue is not maintainable. He submitted that even otherwise Section 142 of the Act contemplates for filling of complaint petitions only by the payee or holder of the dishonoured cheques and bars police investigation into the offence under Section 138 of the Act.

4. Mr. R. Mohapatra, learned counsel appearing for Opposite party No.2, on the other hand, argued that the cheques involved in G.R. Case No. 896 of 2004 and ICC Nos.79 of 2004, 113 of 2004, 135 of 2004 not being one and the same, proceeding in G.R. Case No. 896 of 2004 is maintainable. He further submitted that Section 142 of the Act does not bar police Investigation when the offence under Section 138 of the Act is coupled with the offence under Section 420. IPC. It is submitted by Mr. Mohapatra that investigation is going on in the G.R. Case and at the end of investigation only it can be known whether there is prima facie case for the alleged offences and whether the petitioners would be prosecuted and So, the prayer for quashing the proceeding in G.R. Case No. 896 of 2004 at the stage of investigation is premature.

5. From the submissions of the learned counsel for the parties, the following points emerge for consideration and adjudication.

(i)Whether police investigation is permissible into an allegation relating to offence under Section 138 of the Act.

(ii)Whether the proceeding in a case can be quashed at the stage of investigation.

(iii)Whether pendency of complaint cases filed by opposite party No.2 before the learned SDJM, Puri operates as a bar to proceed in G.R. Case No. 896 of 2004.

6. Section 142 of the Act reads as follows:

“Cognizance of offences—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 -

(a)No Court shall take cognizance of any offence punishable under Section 138 except upon a complaint in writing made by the payee or, as the case may be, the holder in due course of the cheque.

(b) Such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138.

(c)No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section .138.”

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