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2024 Supreme(Online)(HC) 58
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
Sanjay Dhar, J
Fayaz Ahmad Rather – Appellant
Versus
UT of J&K and Another – Respondent
CRM(M) No.287/2024
For the Appellants/Petitioners: Mr.Aijaz Ahmad Bhat
For the Respondents: None
The court affirmed that separate offences under different statutes can coexist, even if stemming from the same transaction, reaffirming distinct definitions for fraud and cheque dishonour.
Headnote:(A) Criminal Procedure Code - Section 420 RPC - Offences involving fraudulent misrepresentation - Petitioner challenged FIR for alleged fraud in educational consultancy, asserting prior proceedings under the Negotiable Instruments Act could bar this FIR - The court held that each complaint involved distinct offences arising from different causes of actions. (Paras 1-9)
(B) Distinction Between Offences - Court explained the distinction between Section 138 of Negotiable Instruments Act and Section 420 IPC/RPC, emphasizing the necessity of showing dishonest intention for Section 420 RPC while discussing the jurisdiction of police to investigate based on the complaint. (Paras 6-7)
Facts of the case:
The petitioner, a proprietor of an education consultancy, was accused of defrauding a complainant of INR 36 lakhs for failed medical college admission. An FIR was registered after allegations of fraud were examined.
Findings of Court:
The court found no merit in dismissing the FIR based on previous proceedings, ruling they involved different offences with distinct causes of action.
Issues: The primary legal issues included the nature of the offences under the IPC/RPC and the timing of the FIR's filing.
Ratio Decidendi: The court emphasized that fraud must involve dishonest intent distinct from cheque dishonour, leading to separate legal ramifications.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. allegations of fraud in educational consultancy. (Para 1 , 2 , 3) |
| 2. petitioner's challenge based on prior legal proceedings. (Para 4 , 5) |
| 3. differentiation of offences under ipc/rpc and n.i act. (Para 6 , 7) |
| 4. court's dismissal of petition based on merits. (Para 8 , 9) |
Dt:31.05.2024
1. The petitioner has Challenged FIR No.18/2023 for offence under Section 420 RPC registered with SHO Police Station, Economic Offence Wing, Srinagar.
2. As per the allegations made in the impugned FIR, the complainant/respondent No.2 approached the Crime Branch Kashmir with an application alleging therein that he had approached Fayaz International Education Consultancy, of which the petitioner happens to be the proprietor, for arranging MBBS admission of his son at ASCOMS Jammu. It had been further alleged in the complaint that all the relevant documents were handed over to the CRM(M) No.287/2024 Page 2 of 4 petitioner and an amount of Rs.36.00 lacs was paid to him for arranging admission of the son of the complainant.
3. On the basis of this complaint, the Crime Branch undertook preliminary verification of the same and found that the petitioner has duped the complainant of an amount of Rs.36.00 lacs on pretext of arranging MBBS admission of his son at ASCOMS Jammu. Thus, offence under Section 420 RPC has been disclosed against the petitioner and the impugned FIR has been registered.
4. The petitioner has challenged the impugned FIR by submitting that the allegations, which are subject matter of the said FIR, are also subject matter of the complaint filed by the complainant against the petitioner for offence under Section 138 read with Section 142 of the Negotiable Instruments Act (for short “the N.I Act). As per the said complainant, the petitioner had issued four cheques in the amount of Rs.5.00 lacs each in favour of the complainant with regard to the same transaction which is subject matter of the impugned FIR. It has been contended that the petitioner cannot be vexed over twice on the basis of same allegations and, therefore, the impugned FIR merits to be quashed. It has also been contended that there is a huge delay in lodging of the FIR, inasmuch as, the alleged transaction had taken place somewhere in the year 2019 and the FIR has been lodged in the year 2023 and this delay has remained unexplained. Thus, according to the petitioner the impugned FIR deserves to be quashed.
CRM(M) No.287/2024 Page 3 of 4
5. I have heard learned counsel for the petitioner and perused the record of the case.
6. So far as the contention of the petitioner that the impugned FIR could not have been registered against him because the petitioner is facing prosecution in respect of a complaint filed by the respondents for offence under Section 138 of the N.I Act is concerned, the same is without any merit. The transaction which is the subject matter of the impugned FIR and the transaction which is the subject matter of the complaint under Section 138 of the N.I Act pending against the petitioner, may be one and the same, but this transaction has given rise to two different offences and the causes of action for launching the prosecution against the petitioner for these two distinct offences are also different.
7. The cause of the action for filing the complaint under Section 138 of the N.I Act arises once drawer of a cheque fails to liquidate the cheque amount in favour of the payee within 15 days of service of demand notice after the dishonour of the cheque, whereas, the cause of action for offence under Section 420 IPC/RPC arises if it is shown that at the time of inception of transaction the accused was having a dishonest intention, as a consequence whereof he has perpetrated a fraud upon the complainant, thereby inducing him to part with property. Thus, the two offences viz the offence under Section 138 of the N.I Act and the offence under Section 420 IPC/RPC are distinct from each other and they arise from different causes of action.
