The ingredients of the offence under Section 420 IPC must be satisfied for a criminal prosecution to be maintainable, even if a civil dispute exists between the parties. The pendency of a case under Section 138 of the Negotiable Instruments Act and the dismissal of a money suit by a civil court do not necessarily bar the continuation of proceedings under Section 420 IPC, but these factors may be considered in determining whether the continuance of both proceedings amounts to an abuse of the process of court.

JUDGMENT :

SHAMPA DUTT (PAUL), J.

1. The present revision has been preferred praying for quashing of the proceedings of G.R case No. 1098/1991 now pending before the Court of the learned Judicial Magistrate, 4th Court, Burdwan having arisen out of Burdwan Police Station Case No. 373/1991 dated 31.08.1991 under Section 420 of the Indian Penal Code.

2. The petitioner's case is that G.R. Case No. 1098 of 1991 now pending before the Court of the learned Judicial Magistrate, 4th Court, Burdwan arose out of Burdwan Police Station case No. 373/1991 dated 31.08.1991 which in turn had been registered for investigation on the basis of a complaint lodged by the respondent no. 2 with the Officer-in-Charge of Burdwan Sadar Police Station.

3. The allegations leveled in the said complaint are, to the effect, that the complainant's company is engaged in the business of fertilizers and they had hired M/s. Associated Transport Company as their storing, handling and transportation agent. The petitioner who is the Managing Partner of M/s. Associated Transport Company had issued six cheques amounting Rs.1,60,00,000/- in favour of the complainant's company as security deposit for the fertilizers worth about Rs.2.60 crores kept with them in the godowns maintained by M/s. Associated Transport Company.

4. It is alleged that on 19.08.1991 the representative of the complainant's company/opposite party no. 2 herein informed that the petitioner was unauthorisedly removing/shifting the fertilizers of the complainant's company from the said godown at Alamganj, Burdwan. Feeling it necessary to present the aforesaid cheques for collection and credit to the complainant's company, the said cheques were presented for encashment with their banker, State Bank of India, Park Circus Branch, Calcutta. However, the aforesaid cheques were dishonoured. It is thus the allegation of the complainant that the petitioner had cheated his company to the tune of Rs.1.60 crores.

5. The petitioner's case is that over the dishonour of the aforesaid six cheques which are the subject matter of the present proceeding, at the behest of P.P.C.L. a case under Sections 138/141 and 142 of the Negotiable Instruments Act was initiated before the Court of the learned Additional Chief Judicial Magistrate, Sealdah.

6. Being aggrieved, an application under Section 482 of the Code of Criminal Procedure being Criminal Revision No. 2618 of 1991 was filed and disposed of on 26.06.1992. The court was not inclined to quash the proceedings of the aforesaid case, but transferred the case to the Court of the learned Sub Divisional Judicial Magistrate, Burdwan for disposal from the court of the learned Judicial Magistrate, 5th Court, Sealdah.

7. The Investigating Agency submitted its report in final form vide Charge Sheet No. 118 dated 25.05.1993 under Section 420 of the Indian Penal Code.

8. That for realization of the aforesaid amount of Rs.1,20,00,000/- along with some other sum of money, P.P.C.L initiated a money suit being Money Suit No. 51 of 1992 before the court of the learned Subordinate Judge, IVth Court, Patna who vide order dated 31.05.2003 was pleased to dismiss the aforesaid suit.

9. Mr. Debasis Roy, learned counsel for the petitioner has submitted that admittedly over the dishonour of the cheques in question, P.P.C.L has initiated a proceeding under Section 138 of the Negotiable Instrument Act. But in such backdrop continuance of the present proceeding is a sheer abuse of the process of court.

10. It is further submitted that it is an admitted position that the claim regarding the amount due and payable by the petitioner to P.P.C.L. has been found to be not maintainable by a proper Civil Court which has dismissed the Money Suit preferred by P.P.C.L. No appeal in any higher forum has been preferred by P.P.C.L. against the order of dismissal of the suit.

11. It is also submitted that the continuance of both the proceedings under Section 420 of the Indian Penal Code as also under Section 138 of the Negot