IMPORTANT POINTS
The complainant did not institute any complaint under Section 138 of the Negotiable Instruments Act inspite of sending notice to the first accused/first petitioner. But, the first petitioner had sent reply notice stating that she had no account in the bank on which the cheque was allegedly drawn. Even if a person has been tried and dealt with for the offence punishable under Section 138 of the Negotiable Instruments Act, on similar facts, he can be subsequently tried for an offence punishable under Section 420 IPC. The reason is that the ingredients of the two offences are different.

ORDER :

This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') to quash the proceedings initiated against the petitioners on the basis of Annexure-1 complaint.

2. The first respondent (hereinafter referred to as 'the complainant') filed Annexure-1 complaint against the petitioners. On the basis of the allegations in the complaint, learned Magistrate has taken cognizance of the offence punishable under Section 420 read with 34 I.P.C. The petitioners are the first and the second accused in the case.

3. The material averments in Annexure-1 complaint are as follows: The complainant and the accused were family friends.

On 02.04.2007, both the accused approached the complainant and requested him to lend them Rs.1,85,000/-. They assured the complainant that they would repay the amount on 16.05.2007 and that they would issue a post-dated cheque to him so that he could encash it on that date. The complainant believed the accused and told them that he would give them the amount on 10.04.2007. The accused came to the house of the complainant on 10.04.2007 and the first accused received the amount of Rs.1,85,000/-from the complainant and gave him a cheque dated 16.05.2007, drawn on Canara Bank, for that amount. The entire transaction was witnessed by Sri.Sushit, a common friend of the complainant and the accused.

4. The complainant presented the cheque in the bank. It was dishonoured on the ground that funds were insufficient. The complainant issued a notice to the first accused on 22.05.2007 intimating her about the dishonour of the cheque and demanding payment of the cheque amount. The first accused sent a reply stating that she had no occasion to give any cheque to the complainant. On 20.06.2007, both accused approached the complainant along with Sri.Sushit and they requested the complainant to grant them two years time to repay the amount with interest at the rate of 12% per annum. The matter was talked over in the presence of mediators and Sushit and finally the complainant agreed for the same.

5. Even after the period of two years, the accused did not pay the amount to the complainant. On 29.07.2010, the complainant issued notice to both accused demanding the amount. The first accused sent a reply containing false averments. The accused had dishonestly induced the complainant to believe that the cheque would be honoured on presentation and the complainant had given them the amount on believing them. The cheque was issued by the accused stating that it belonged to the first accused. The act of the accused is punishable under Section 420 read with 34 I.P.C.

6. During the enquiry under Section 202 of the Code, the complainant and Sushit were examined. In the sworn statement, the complainant has briefly stated the details of the transaction with the accused. The witness Sushit has stated that the complainant had given the amount to the accused in his presence. He has also stated about the agreement reached between the parties that the accused would repay the amount within a period of two years.

7. Heard learned counsel for the petitioners and the first respondent and the learned Public Prosecutor.

8. Learned counsel for the petitioners has urged the following two grounds to quash the proceedings initiated against the petitioners on the basis of Annexure-1 complaint. They are :

(1) There is undue and unexplained delay in filing the complaint

(2) The averments in the complaint do not constitute the ingredients of an offence punishable under Section 420 I.P.C.

9. The transaction alleged by the complainant was on 10.04.2007. The cheque allegedly given by the accused to the complainant is dated 16.05.2007. The complaint against the petitioners was filed only on 29.03.2011.

10. The offence under Section 420 I.P.C is punishable with imprisonment for a term which may extend to seven years. The petitioners have got no plea that the complaint is barred by limitation under Section 468 of the Cod