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2020 (2) TMI 805 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - section 138 of NI Act - invocation of jurisdiction under Section 156(3) of Cr.P.C. - HELD THAT:- The provisions of Section 138 of N.I. Act may be attracted, because the cheque, which was given by the petitioner-accused no.1 to opposite party no.2-complainant, was returned as there was insufficient fund. In addition to the same, if on the basis of the factual matrix prima facie it is satisfied that the petitioner-accused no.1 had tried to deceive opposite party no.2-complainant in the entire transaction, then in that case criminal proceeding can also be initiated against the accused persons. In the present case, this is not proper stage where the proceeding so initiated has to be quashed either in exercise of power under Section 226 of the Constitution of India or even under Section 482 Cr.P.C. Rather, the Magistrate is well justified in directing the police authority to register the complaint petition as FIR under Section 156(3) Cr.P.C. and cause investigation into the matter. It is made clear that an accusation of commission of offence under Section 138 of N.I. Act cannot preclude the complainant to initiate a proceedings against accused persons under Sections 418, 420 read with Section 34 of IPC if ingredients of such offence are attracted. As such, the case under the N.I. Act can only be initiated by filing complaint, but in a case under the IPC, such a condition is not necessary. But in the case at hand when opposite party no.2-complainant lodged an FIR in the concerned police station, the same was not registered, therefore, there was no other way open to opposite party no.2-complainant than to approach the Magistrate by filing complaint case, who, in turn directed the police to register the complaint as FIR under Section 156(3) of Cr.P.C. and conduct investigation - impugned order is correct and is upheld. Petition dismissed.
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