The distinction between the ingredients of an offence punishable under section 138 of N.I. Act and section 420 I.P.C., and the allowance for prosecution under section 420 I.P.C. even if prosecution fails under section 138 of N.I. Act.

Manoj Misra, J.

Heard learned counsel for the applicant, learned AGA for the State and perused the record.

2. The instant application has been filed seeking quashing of the proceedings of Criminal Case No.382 of 2012 (State v. Alok Kumar Gupta), under sections 420, 406 I.P.C. pending in the court of A.C.J.M.-VIII, Aligarh.

3. A perusal of the record would go to show that according to the prosecution case, a cheque of Rs. 50,000/- was issued by the applicant for the purchase of certain jewelry items on 7.1.2014, which was submitted for encashment but the bank concerned returned the cheque for want of sufficient funds in his account. It is alleged that later, the applicant manipulated with the Bank and, on a back date, got a letter received from the applicant to stop payment on the aforesaid cheque.

4. The submission of learned counsel for the applicant is that in respect of dishonor of cheque, proceeding under section 138 N.I. Act have already been initiated, therefore, prosecution under section 420 I.P.C. is not legally justified. The other submission is that from the statement of the bank manager, which has been recorded during the course of investigation, it has come that the applicant had reported to the bank concerned that cheques from serial nos. 216590 to 216593 had been lost of which information was given much prior to the issuance of the dishonored cheque and, therefore, the allegations made against the applicant are false.

5. Whether the allegations against the applicant are false or not cannot be tested at this stage.

6. So far as the submission that proceedings can be drawn only under the provisions of the N.I. Act is concerned, suffice it to say that the ingredients of an offence punishable under section 138 N.I. Act are completely different from that punishable under section 420 I.P.C. The offence of cheating is a distinct and separate offence which is dependent on existence of a dishonest intention from the very beginning of a transaction, whereas the offence punishable under section 138 of the N.I. Act is an offence of technical nature where existence of mens rea is not necessary. In the case of Sangeeta Ben Mahendra Bhai Patel v. State of Gujarat, (2012) 7 SCC 621, the Apex Court took the view that the ingredients of an offence punishable under section 138 of N.I. Act and section 420 I.P.C. are completely different and in a case where even prosecution fails under section 138 of N.I. Act, the accused can be prosecuted for an offence punishable under section 420 I.P.C. on the given set of facts. In the instant case, the alleged conduct of the applicant is such that, at this stage, it cannot be said that the applicant did not have a dishonest intention at the time of taking delivery of movables against the cheque, therefore, it cannot be said that on the given set of allegations no offence of cheating is made out.

7. In view of above, I do not find any good reason to quash the charge sheet or the proceeding.

8. However, looking to the facts and circumstances of the case, it is provided that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in accordance with the law laid by this Court in the case of Amrawati and another v. State of U.P. reported in 2004 (57) ALR 290 : 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh v. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicant. In case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.

9. With the aforesaid directions, this application under Section 482 Cr.P.C. is finally disposed of.