The offences under Section 420 IPC and Section 138 of the Negotiable Instruments Act are not mutually exclusive, and the same facts can constitute both offences at the same time.

, J.

1. - This is a petition under Sec.482 of the Code of Criminal procedure for quashing criminal complaint Annexure P-1 dated 10.8.1989 under section 420 IPC and Sec.138 of the Negotiable Instruments Act, 1881 , as amended by amendment Act 66 of 1988, and the First Information Report Annexure p-3 dated 2.3.1990, under Sec.420 IPC lodged by private respondent No.2 krishan Kumar against the petitioner.

2. The petitioner is an Accountant in the State Bank of India. Respondent no.2 is a partner in Bharat Rice Mills. On 23.4.1989 the respondent appears to have given a cheque for Rs.2,00,000/- to the petitioner, payment under the cheque was made by the State Bank of India, Fazilka, on 25.4.1989 to the petitioner. The amount is stated to have been given as a loan and it was to carry interest at the rate of Rs.1.50 per cent per month. Towards repayment, the petitioner is stated to have issued a cheque for 5,000/- on 25.6.1989. It was to be presented on 30th june, 1989 at Jaipur. Repeated efforts to obtain the payment under the cheque failed. The respondent paid a personal visit and urged the petitioner to make the payment but to no purpose. Consequently, the respondent lodged a complaint annexure P-l followed by First Information Report on the basis of another complaint dated 29.12.1989 sent to the Senior Superintendent of Police and in turn forwarded by him to the police station for the registration of a case. In the meanwhile, on 25.8.1989 the petitioner also filed complaint Annexure P-2 under sections 418, 420, 465, 468, 467, 471 and 211 IPC against respondent giving his own version of the facts and events.

3. The contention of the learned counsel for the petitioner is that the complaint annexure P-1 deserves to be quashed for the following reasons : (a) The learned Magistrate sent the complaint to the police for "registration" of a case. The learned Magistrate had no such power to order registration of a case and all he could do was to forward the complaint for investigation. (b) Only Magistrate First Class can take cognizance of the offence under the negotiable Instruments Act as laid down under Sec.142 of thereof and the police was not competent to take cognizance of the said offence. (c) The offence under Sec.138 of the Negotiable Instruments Act had become time barred by the time the complaint was filed in the Court. (d) The offences under Sec.420 IPC and Sec.138 Negotiable Instruments act were mutually exclusive and the same facts cannot constitute both the offences at the same time.

4. 1 have given my anxious consideration to the above contentions and I find no merit in the same. It has neither been stated in the petition nor a copy of the order by which the learned Magistrate sent the complaint to the police has been placed on record. It is, therefore, not possible to say whether the complaint was forwarded, inter alia, for investigation or not. If it was forwarded for investigation and registration of the case, it was only an irregularity because the Magistrate is empowered to send the complaint to the police under Sec.156 (3) of the Code of Criminal Procedure for "investigation. " In any case, assuming for the sake of argument that the order passed by the learned Magistrate sending the complaint to the police for registration of a case was without jurisdiction, that by itself is no reason to quash the proceedings, specially, when the police has not returned the complaint and the complainant has also got a case registered with the police broadly on the same facts vide Annexure P-3.

5. With regard to the next ground, no doubt, cognizance of the offence under section 138 of the Negotiable Instruments Act can be taken only by a Judicial magistrate, the complaint sent to the police constitutes an offence under Sec.420 IPC which the police is empowered to investigate. For the same reason it is of no consequence that the offence under the Negotiable Instruments Act has become time barred. Undeniably, the offence under