IMPORTANT POINT
Section 138 of the Negotiable Instruments Act, 1881 is distinct from Section 420 of the Indian Penal Code, 1860.

Hemant Gupta, J.—The present petition under Section 482 Cr. P.C. is for quashing of the complaint (Annexure P1) for an offence under Sections 420, 415 and Section 120B I.P.C., as also the summoning order dated 14.10.2000 (Annexure P2).

2. It is the case of the respondent/complainant that the accused (the present petitioner) placed an order for supply of bulk drugs of Diclofenac Sodium IPA, being manufactured by the complainant. The accused received material against seven different orders and issued the cheques for an amount totaling Rs.20,38,450. But, when the cheques were presented for encashment, the same were dishonoured. It is, thus, alleged that the petitioner has dishonestly and fraudulently induced the complainant to deliver the material to the accused by assuring the payment within a period of 90 days and thus, the accused cheated the complainant. On the said complaint, the learned Magistrate passed an order dated 14.10.2000, summoning the present petitioner for an offence under Section 415 read with Section 120B, I.P.C.

3. The relevant extracts from the complaint reads as under:

“7. That accordingly the accused placed various orders for supplying the Diclofenac Sodium to the accused within a span of 75 days whereby fixing the payment terms of 90 days credit. Not only this the accused always showed his urgency everyday to lift the material from the complainant. By having trust on the accused the complainant supplied the material to the accused as per order received from time to time on priority basis.”

8. That the accused issued different cheques on order basis against the material received as per the orders placed from time to time.

9. That the accused received the material against different seven orders and issued the cheques totalling amounting to Rs. 20,38,450 as detailed below:

10. That when the complainant presented the said cheques from time to time the complainant got shocked to receive even the first cheque. Thereafter the complainant stopped to supply the material of which the accused had placed the order and issued the cheques amounting to Rs. 5,90,000 in, advance and withhold the cheques also. However, the complainant presented the cheques against which the material was already dispatched but all the cheques got dishonoured for the reason “Insufficient funds”

4. It is pleaded case of the petitioner in the present petition that the respondent/complainant has initiated proceedings in respect of cheques in question under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’). The complainant has not disclosed in the present complaint that he has already filed a complaint under Section 138 of the Act against the petitioner and that the petitioner accused stands summoned therein and is facing the trial.

5. Notice in the present petition was issued on 27.8.2001 and further proceedings before the trial Court were stayed. However, no-one put in appearance on behalf of the respondent. The proceedings in the present case were adjourned sine-die vide order dated 25.10.2002, when a statement was made that the order has already been communicated to the complainant, who has been appearing in the trial Court and is aware of the proceedings. Subsequently on 1.3.2006, when the matter came up for hearing before this Court, an argument raised by learned counsel for the respondent was noticed that since the proceedings under Section 138 of the Act are pending, therefore, subsequent proceedings under Section 415, 120B, I.P.C., are not maintainable. The stand of the respondent was at the judgment in G. Sagar Suri v. State of U.P.1on of a fresh complaint under Section 420, I.P.C., when the complaint is pending under Section 138 of the Act. The argument was that since the petitioner has been summoned under Sections 415 and 120B, I.P.C., therefore, the said judgment is not applicable.

6. In view of the argument raised on 1.3.2006, it is beyond doubt that the respondent has initiated proceedings again