The accused cannot be tried for contradictory offences in the given factual scenario.

JUDGMENT

(Prayer: Criminal Revision Case filed under Section 397 and 401 of the Code of Criminal Procedure, against the order dated 12.02.2020 made in CMP No.4545 of 2019 in C.C.No.546 of 2012, on the file of the learned Judicial Magistrate No.I, Villupuram.)

1. This Criminal Revision Case has been directed against the order passed by the learned Judicial Magistrate No.I, Villupuram, allowing the petition filed by the complainant under Section 216 of Cr.P.C.

2. The case in brief is that the respondent herein filed a private complaint under Section 138 of Negotiable Instruments Act, alleging that the cheque bearing No.102324 of Union Bank of India, Salaimedu Branch, Villupuram, issued by the revision petitioner in favour of the respondent for Rs.3,00,000/- to discharge the debt of hand loan was dishonoured, on presentation for the reasons of ‘insufficiency of fund’. After causing statutory notice, a complaint was filed alleging that the cheque was issued without sufficient fund. Hence, the petitioner is liable for offence under Section 138 of Negotiable Instruments Act.

3. The case of the revision petitioner/accused is that she is not maintaining any account in the Union Bank of India and the cheque was not issued by her, from her account maintained in the said bank. The same was informed to the complainant through her reply notice dated 18.09.2012. Despite that, the complainant has filed a case against her and he was examined as PW.1. The Bank Manager of Union Bank of India, Salaimedu Branch, Villupuram, was examined as PW.2. In the course of cross examination, the documents produced by the bank had disclosed that the accused was not maintaining any account in the Union Bank of India and when the subject cheque was presented for collection, it was returned with an endorsement ‘Fund Insufficient’. After this, the complainant has filed a petition under Section 216 of Cr.P.C, seeking for alteration of charge by including Sections 120(B) and 420 of I.P.C.

4. The trial Court, after considering the submissions made by complainant and the respondent/accused has held that from the evidence of PW.2 (Bank Manager), it is clear that the accused has not maintained any account in the said bank, whereas she had issued the cheque, which belongs to her husband’s account viz., Balasubbramaniyam and thereby caused wrongful loss to the complainant. So, in view of the evidence adduced by PW.2, there is a prima facie case made out for offence under Section 420 of I.P.C. Hence, offence under Section 420 of I.P.C., also to be included against the accused. The said order is impugned in the present revision petition.

5. It is contended that even when the statutory notice was issued on 03.09.2012, the accused has given a reply dated 18.09.2012 stating that the cheque pertains to this case, was not issued from her account. It was further stated that the subject cheque is not pertaining to the account maintained by her. While so, suppressing the said facts disclosed in the reply, the accused has filed a private complaint under Section 138 of Negotiable Instruments Act. After examining PW.2 (Manager of Union Bank of India) and also after, establishing the fact that the accused does not have any account in Union Bank of India, Salaimedu Branch, a petition to amend the charge was filed in CMP No.4545 of 2019 in C.C.No.546 of 2012 and the same has been erroneously entertained by the trial Court. When a prosecution under Section 138 of Negotiable Instruments Act initiated through a private complaint under the Special Act, alleging dishonour of cheque maintained from the account, the offence of under Section 420 of I.P.C cannot be included, alleging with fraudulent intention to cheat, cheque was issued not from the account maintained. The procedure contemplated for the trial of offence under Section 138 of Negotiable Instruments Act and for the offence under Section 420 of I.P.C are different. It is not the case of the complainant that at the inception, the cheque w